State v. Morgan

[Cite as State v. Morgan, 2019-Ohio-3691.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-103
:
v. : Trial Court Case No. 2016-CR-132
:
ISSAC ALEXANDER MORGAN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 13th day of September, 2019.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
KIMBERLY MELCHOR, Atty. Reg. No. 0093843, 214 West Monument Avenue, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
-2-
{¶ 1} Defendant-appellant, Issac Alexander Morgan, appeals from his conviction
in the Clark County Court of Common Pleas after a jury found him guilty of multiple counts
of rape and kidnapping and one count of felonious assault. In support of his appeal,
Morgan contends that his conviction for each offense was not supported by sufficient
evidence and was against the manifest weight of the evidence. Morgan also contends
that his trial counsel provided ineffective assistance, that he was denied a fair trial due to
pre-indictment delay, and that the trial court erred in granting the State a trial continuance
for purposes of locating and serving a subpoena on a key witness. For the reasons
outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On March 15, 2016, the Clark County Grand Jury returned an indictment
charging Morgan with two counts of rape in violation of R.C. 2907.02(A)(2), two counts of
kidnapping in violation of R.C. 2905.01(A)(4), and one count of felonious assault in
violation of R.C. 2903.11(A)(1). Each of the counts included a three-year firearm
specification.
{¶ 3} The aforementioned charges stemmed from allegations that Morgan sexually
assaulted two female prostitutes while holding them at gunpoint outside of South High
School near Clifton Avenue in Springfield, Ohio. It was alleged that on May 25, 2015,
Morgan kidnapped and raped the first victim, D.C., after D.C. declined Morgan’s offer to
pay for sex. It was also alleged that Morgan committed felonious assault on D.C. by
pushing her to the ground and striking her in the face with his handgun. With regard to
-3-
the second victim, C.R., it was alleged that on July 13, 2015, Morgan kidnapped and
raped C.R. at gunpoint after C.R. had initially accepted Morgan’s offer to pay for sex.
{¶ 4} Morgan initially pled not guilty to the charges. Following his not guilty plea,
Morgan filed several pretrial motions, including a Crim.R. 14 motion for relief from
prejudicial joinder. In that motion, Morgan requested that the trial court sever the rape,
kidnapping, and felonious assault charges related to D.C. from the rape and kidnapping
charges related to C.R. In support of the motion, Morgan argued that the joinder of those
offenses prejudiced him because there was a risk that the jury would use the evidence in
one case to bolster the allegations in the other case. The trial court, however, disagreed
and overruled Morgan’s motion.
{¶ 5} Shortly thereafter, Morgan accepted a plea agreement and pled guilty to one
count of rape with the accompanying firearm specification. In exchange for Morgan’s
guilty plea, the State dismissed the remaining charges and specifications. At sentencing,
the trial court sentenced Morgan to ten years in prison for rape and a mandatory three
years in prison for the firearm specification. The trial court ordered the three-year prison
sentence for the firearm specification to be served prior and consecutive to the sentence
for rape, thus amounting to a total, aggregate sentence of 13 years in prison. The trial
court also designated Morgan a Tier III sex offender. Morgan then appealed.
{¶ 6} On appeal, Morgan challenged the knowing, intelligent, and voluntary nature
of his guilty plea. Upon review, this court found merit to Morgan’s claim and reversed
his guilty plea on grounds that the trial court failed to substantially comply with Crim.R.
11(C)(2)(a). State v. Morgan, 2018-Ohio-319, 104 N.E.3d 941, ¶ 17 (2d Dist.).
Specifically, this court found that “[t]he trial court failed to inform Morgan that he was
-4-
subject to a mandatory prison term before it accepted his guilty plea to the rape count.”
Id. “The trial court also failed to inform Morgan that because the prison time was
mandatory for a rape conviction, he was ineligible for community control sanctions in lieu
of prison.” Id. “Furthermore, the plea form signed by Morgan incorrectly stated that a
mandatory prison term was ‘not applicable’ to his conviction for rape.” Id. Based on
these errors, this court found that Morgan’s guilty plea was not made knowingly,
intelligently, and voluntarily. Id. The matter was therefore reversed and remanded back
to the trial court for further proceedings.
{¶ 7} On remand, the trial court held a pretrial conference during which Morgan
notified the court that he no longer wanted to plead guilty and instead wanted to move
forward with a jury trial. As a result, the trial court scheduled a jury trial to take place on
July 24, 2018. On the day of trial, the State advised the trial court that, despite multiple
efforts, it had been unable to locate D.C. for purposes of serving her with a subpoena
ordering her to appear at trial. Since D.C. was not present for trial, Morgan moved the
trial court to prevent the State from presenting any evidence that related to the charges
involving D.C. The trial court granted the motion, which prompted the State to move for
a trial continuance so that it could locate D.C. and serve her with a subpoena. Although
recognizing the last-minute nature of the State’s request, the trial court granted the State
a short, three-week trial continuance until August 14, 2018. D.C. thereafter appeared for
trial as scheduled.
Trial Testimony and Evidence Related to Assault on D.C.
{¶ 8} D.C. testified that Morgan approached her and offered her money for sex as
-5-
she was walking by the area of South High School. D.C. testified that when she found
out Morgan only had $5, she declined his offer and attempted to walk away. However,
rather than letting her walk away, Morgan pulled D.C.’s arm, placed a handgun to her
head and nose, and said: “Bitch, you gonna do what I tell you to do.” Trial Trans. Vol. I
(Aug. 14, 2018), p. 161. D.C. testified that Morgan then pushed her to the ground, struck
her in the face with his gun, and forced her to perform oral sex on him. During this time,
D.C. testified that Morgan also “tried” to put his penis in her vagina and anus. Id. at 168.
{¶ 9} After being assaulted by Morgan, D.C. testified that she left the scene and
sought assistance from an individual on the street who called 911. The recorded 911
call was admitted into evidence and was played at trial. During the call, D.C. can be
heard describing her assailant as a black male in an orange shirt with short curly hair.
D.C. also can be heard stating that her assailant had a gun and that he had run down
Selma Road after assaulting her outside of South High School. D.C. further stated that
the attack had happened approximately 20 minutes prior to the call.
{¶ 10} D.C. identified Morgan as her assailant at trial, albeit with some difficulty
due to her eyesight. D.C. testified that her eyesight was in the same condition as it had
been during the time of the attack. D.C. also testified that her assailant was tall,
heavyset, and light-skinned. On cross-examination, D.C. admitted that she may have
been on cocaine on the night she was attacked. D.C. also testified that she did not
remember a lot about the incident, and that she thought she had blacked out for two days.
D.C. was nevertheless adamant that Morgan had held a gun to her head and forced her
to engage in sex acts on the night in question.
{¶ 11} Detective Ronnie Terry was the officer who responded to D.C.’s 911 call.
-6-
Terry testified that D.C. reported she had been walking along Clifton Avenue when she
was approached by a male who forced her alongside South High School at gunpoint and
sexually assaulted her. Terry testified that D.C. described her assailant as a black male
of average height and weight in his 30s with short hair, wearing an orange shirt and jeans.
Terry testified that D.C. was severely intoxicated when he encountered her. Terry also
confirmed that his written reported noted that D.C. could hardly walk without assistance
and that she could have possibly been injured by falling.
{¶ 12} With regard to D.C.’s injuries, both D.C. and Detective Terry testified that
she was taken to the hospital for treatment on the night of the attack. Photographs of
D.C.’s injuries were taken at the hospital and admitted into evidence. The photographs
showed that D.C. had a laceration on her nose, dried blood on her face, and abrasions
on her right knee and elbow. D.C. also testified that she suffered a broken right arm from
Morgan pushing her to the ground, and that she had to recuperate in a nursing home for
three months.
{¶ 13} While at the hospital, D.C. was examined by a Sexual Assault Nurse
Examiner (“SANE nurse”), Mary Beth Hannon. Hannon testified that she obtained a
narrative history from D.C. prior to her examination. Hannon testified that D.C. told her
she was walking on Clifton Avenue when she was approached by a tall, heavyset black
male with short curly hair who was wearing an orange shirt and jean shorts. D.C. also
told Hannon that the man had a gun and made her perform oral sex on him. According
to Hannon, D.C. further told her that the man pushed her down, penetrated her vagina
with his penis, and hit her in the head with his gun.
{¶ 14} Continuing, Hannon testified that she observed abrasions to D.C.’s nose,
-7-
lips, right knee, and left hand and thumb. Hannon also testified that D.C. had right
shoulder pain and that the hospital medical records indicated that D.C. had sustained a
fractured right shoulder. Hannon further testified that D.C. had abrasions and redness
on the opening of her vagina, injuries which Hannon claimed were consistent with the
sexual assault described by D.C.
{¶ 15} Hannon additionally testified to performing a rape kit on D.C. In performing
the rape kit, Hannon testified that she collected a DNA standard from D.C. by swabbing
D.C.’s cheek and gum line. Hannon also testified that she collected vaginal, anal, and
oral swabs from D.C. Hannon further testified that she included D.C.’s bra with the rape
kit, but that D.C.’s underwear was not included, as D.C. advised her that the underwear
had been left at the crime scene. After completing the rape kit, Hannon testified that she
released the rape kit to law enforcement. Officer William Evans of the Springfield Police
Department testified to collecting the rape kit from Hannon. The parties stipulated that
Officer Jeffrey Steinmetz of the Springfield Police Department delivered the rape kit to the
Ohio Bureau of Criminal Investigation (“BCI”) for testing.
{¶ 16} Sarah Grimsley, a forensic scientist at BCI, also testified at trial. Grimsley
testified that she examined D.C.’s rape kit and tested the samples contained therein for
the presence of semen. Grimsley testified that her testing revealed that semen was
present on D.C.’s vaginal and anal swabs. Grimsley testified that she also discovered
one sperm cell on D.C.’s oral swab. After detecting the presence of semen on the swabs,
Grimsley testified that she prepared and packaged the swabs for DNA testing by another
BCI analyst.
{¶ 17} Hallie Dreyer, another forensic scientist at BCI, was the analyst who
-8-
conducted the DNA testing. In conducting her testing, Dreyer testified that she extracted
and copied the DNA found on D.C.’s vaginal and anal swabs and then compared that
DNA to a known DNA standard from Morgan to see if there was a match. Dreyer testified
that she initially conducted a conventional STR DNA test. Dreyer testified that the results
of the STR DNA test detected a DNA mixture from D.C. and one male contributor.
Dreyer testified that although there were similarities between the male contributor’s DNA
and Morgan’s DNA, the test results were inconclusive as to whether Morgan was the male
contributor. Dreyer testified that this is a common outcome due to the abundance of
female DNA on vaginal and anal swabs.
{¶ 18} After the conventional STR DNA test results came back inconclusive,
Dreyer testified that she performed a Y-STR DNA test on D.C.’s vaginal and anal swabs.
Dreyer testified that a Y-STR DNA test is a male-specified DNA test that allows the analyst
to ignore any female DNA that is present on the swabs. Dreyer testified that unlike the
conventional STR DNA test, the male DNA profile that is obtained from Y-STR DNA
testing is not necessarily unique to one male, but rather is unique to any paternal male
relative of the male DNA contributor. Dreyer testified that the results of the Y-STR DNA
test in this case revealed that there was only one male DNA contributor and that Morgan
was included as a contributor. That is to say, the Y-STR DNA testing revealed that
Morgan’s DNA (and the DNA of his paternal male relatives) matched the male DNA profile
that was found in D.C.’s vagina and anus.
{¶ 19} Detective Sandy Fent, the investigating detective assigned to this case, also
testified at trial. Fent testified that on March 2, 2016, a photograph lineup was
administered to D.C. during which D.C. identified Morgan as her assailant. The
-9-
photograph lineup was created by Fent and administered by Detective Trent King. King,
a juvenile detective, testified to having no knowledge about D.C.’s case at the time he
administered the lineup to D.C. Video evidence of King administering the lineup to D.C.
was admitted by the defense and played at trial. The video shows that D.C. initially
indicated to King that the individual in photograph #6 (not Morgan) had hair like her
assailant. However, after that, D.C. also said that the individual in photograph #4
(Morgan) looked like her assailant too. King then attempted to confirm whether D.C. had
chosen photograph #4. Shortly thereafter, D.C. chose photograph #4, Morgan’s picture.
After D.C. chose Morgan’s picture, she asked King if she had picked the right person, to
which King responded he did not know. Then, when Detective Fent reentered the room,
D.C. told Fent that she did not know if she picked the right person.
Trial Testimony and Evidence Related to Assault on C.R.
{¶ 20} C.R. testified that during the early morning hours of July 13, 2015, she was
sitting on the steps of South High School when a black male wearing an orange shirt
approached her and offered her $30 to engage in a sexual act with him. C.R. testified
that she accepted the offer, and that she and the man thereafter walked to an area near
the front of the building. Upon reaching a walled-off, concealed grassy area (see State’s
Exhibit No. 6), C.R. testified that the man put a handgun in her face and asked her “if
[she] knew what that was.” Trial Trans. p. 263. C.R. testified that she told the man,
“[y]es, what do you want me to do?” Id. C.R. testified that the man thereafter forced
her to perform oral sex on him and to engage in vaginal sex.
{¶ 21} C.R. testified that after being sexually assaulted for what seemed like an
-10-
hour, she told the man that she was finished and attempted to walk away. However,
C.R. testified that when she started to walk away, the man fired a warning shot with his
gun and continued to force her to have sex with him. C.R. testified that when the sex act
was finished, the man took her purse and did not pay her.
{¶ 22} C.R. testified that her assailant walked south toward Leffel Lane, and that
she went in the opposite direction on Clifton Avenue. When C.R. reached the middle of
Clifton Avenue, she began to scream and a gentleman stopped to help her. C.R. testified
that the gentleman used his phone to call 911. The recorded 911 call was admitted into
evidence and played at trial. On the recording, C.R. and the gentleman can be heard
reporting that she was robbed by a black male with a gun wearing an orange t-shirt and
shorts. C.R. also reported that the male went south on Clifton Avenue and that he had
shot his gun in the air.
{¶ 23} Like D.C.’s case, Detective Terry was the officer who responded to C.R.’s
911 call. Terry testified that he was dispatched to the report of a robbery, but, upon
arriving at the scene, he learned that C.R. had been both robbed and sexually assaulted.
Terry testified that C.R. described her assailant as a black male in his 30s of average
height wearing an orange shirt and jeans. Terry testified that C.R. reported the male
forced her at gunpoint to the northeast side of South High School, made her perform oral
sex on him, and fired a warning shot.
{¶ 24} Continuing, Terry testified that C.R. directed him to the exact area where
the assault had occurred. Once he reached that area, Terry testified that he discovered
a shell casing from a gun in the grass. Less than a foot away from the shell casing, Terry
testified that there was an area in the ground where the dirt was disturbed. Terry testified
-11-
that he used a pocket knife to cut around the area of disturbed dirt and thereafter
discovered a nine-millimeter bullet in the ground.
{¶ 25} In addition to the shell casing and bullet, Terry also found various personal
items scattered down the sidewalk and grass south of the high school. Those items
included a purse, cell phone, eyeglass case, cigarette pack, and make-up. Terry testified
that C.R. identified the items as belonging to her and that the items were released to her
on the night of the assault. Terry testified that the items were not tested for fingerprints
because the ground was wet and the weather was humid. According to Terry, such
conditions were not conducive to obtaining prints. Terry also testified that fingerprints
could not be taken from items made of fabric, like the purse.
{¶ 26} Terry additionally testified that he and his partner, Officer Bronsord, were
crime scene technicians and that they worked together to take pictures of the crime scene
and to collect all the evidence. Terry testified that he collected the shell casing and the
bullet and made sure they were both properly tagged and placed in a secure locker in the
Springfield Police Department’s property room.
{¶ 27} Both C.R. and Detective Terry testified that C.R. refused medical treatment
after the assault. C.R. and Detective Fent also testified that C.R. could not identify her
assailant in a photograph lineup. Fent, the detective assigned to the case, testified that
she had no leads on the identity of C.R.’s assailant until she learned about a November
2015 traffic stop on Selma Road involving Morgan.
{¶ 28} State Highway Patrol Trooper Tim Durham testified regarding the traffic stop
in question. Durham testified that on November 4, 2015, he initiated a traffic stop on
Selma Road due to a vehicle traveling at night without its headlights illuminated. Durham
-12-
testified that when he and his partner approached the vehicle, they made observations
that provided them with probable cause to search the vehicle. Durham testified that he
asked the occupant in the front passenger seat, later identified as Morgan, if there was
anything in the vehicle that could hurt him or his partner. According to Durham, Morgan
responded that he had a handgun in the glove box. Durham testified that he then
immediately removed a handgun and loaded magazine from the vehicle’s glove box.
{¶ 29} State Highway Patrol Trooper Josh Eldridge also testified at trial. Eldridge
testified that he was ordered to test-fire the handgun found during the traffic stop. In
doing so, Eldridge testified that the handgun was operable and that he test-fired the
handgun twice. Following the test-fires, Eldridge testified that he collected the two
resulting bullets and shell casings and sent them to BCI for testing. Detective Fent
testified that she requested BCI to compare the test-fired bullets and shell casings with
the bullet and shell casing that were found at the scene of C.R.’s assault.
{¶ 30} Matthew White, a BCI firearm and toolmark examiner, testified that he
compared the known test-fired bullets and shell casings from Morgan’s handgun (which
White identified as a nine-millimeter Luger Hi-Point Model C-9 pistol), with the bullet and
shell casing found at the scene of C.R.’s assault. Based on his comparisons, White was
able to conclude that the shell casing found at the scene of C.R.’s assault was fired from
Morgan’s gun. White also concluded that the bullet found at the scene of C.R.’s assault
had features that are unique to Morgan’s gun. However, White testified that the features
on the bullet were not unique enough to conclusively determine whether the bullet was
fired from Morgan’s gun.
{¶ 31} Detective Fent testified that she obtained a buccal swab from Morgan with
-13-
his consent while he was in custody following the November 2015 traffic stop. Fent
thereafter provided the buccal swab to BCI for purposes of obtaining a DNA standard.
Morgan was arrested after Fent received White’s firearm analysis, the Y-STR DNA results
back from D.C.’s case, and D.C.’s identification of Morgan in the photograph lineup.
{¶ 32} Once Morgan was arrested, Fent conducted an interview with Morgan.
The interview was video recorded and submitted into evidence following some redaction.
During this interview, Morgan admitted that the gun found during the traffic stop belonged
to him, but denied having any involvement in the assaults of D.C. and C.R. Morgan also
advised Fent that he lived at 139 East Euclid Avenue, which Fent testified is only three
and a half blocks south from where D.C. and C.R. were sexually assaulted. Fent also
testified that Morgan’s girlfriend resided on the 1100 block of Clifton Avenue, which Fent
testified is only four or five blocks from where D.C. and C.R. were assaulted.
The Jury’s Verdict and Sentencing
{¶ 33} After presenting the foregoing testimony and evidence, the State rested its
case. Once the State rested, Morgan chose not to call any defense witnesses and rested
his case as well. The jury then deliberated and found Morgan guilty of all the indicted
charges and firearm specifications. At sentencing, the trial court merged the rape and
kidnapping counts pertaining to each victim, and the State elected to have Morgan
sentenced for the two counts of rape. The trial court also merged the firearm
specification that was attached to D.C.’s felonious assault with the firearm specification
that was attached to D.C.’s rape.
{¶ 34} Following the mergers, the trial court imposed a mandatory prison term of
-14-
ten years for each count of rape. The trial court also imposed a three-year mandatory
prison term for each of the two firearm specifications. The trial court ordered the
sentences for the firearm specifications to be served prior and consecutive to the
sentences for rape. The trial court also sentenced Morgan to four years in prison for
felonious assault and ordered that sentence to be served consecutive to the sentences
for rape. Therefore, the trial court sentenced Morgan to an aggregate term of 30 years
in prison.
{¶ 35} Morgan now appeals from his conviction, raising four assignments of error
for review.
First Assignment of Error
{¶ 36} Under his first assignment of error, Morgan contends that his convictions
for the rapes and kidnappings of D.C. and C.R. and the felonious assault of D.C. were
not supported by sufficient evidence and were against the manifest weight of the
evidence. We disagree.
{¶ 37} As a preliminary matter, we note that the record indicates Morgan failed to
preserve his insufficiency of the evidence argument for appeal in that he did not make a
Crim.R. 29 motion for acquittal during his trial. “It is generally accepted in Ohio that if
counsel fails to make and renew a Crim.R. 29 motion during a jury trial, the issue of
sufficiency is waived on appeal.” State v. Carson, 2d Dist. Montgomery No. 27566,
2018-Ohio-4352, ¶ 21, citing State v. Richardson, 2016-Ohio-8081, 75 N.E.3d 831, ¶ 16
(2d Dist.). Accord State v. Brock, 2d Dist. Clark No. 2018-CA-112, 2019-Ohio-3195, ¶
19. However, despite the absence of a Crim.R. 29 motion, an appellate court may
-15-
conduct a plain error review. State v. Fugate, 2d Dist. Montgomery No. 25782, 2014-
Ohio-415, ¶ 20, citing State v. Hibbler, 2d Dist. Clark No. 2001-CA-43, 2002-Ohio-4464,
¶ 23. “Plain error does not exist unless, but for the error, the outcome of the trial would
have been different.” Id., citing State v. Moreland, 50 Ohio St. 3d 58, 552 N.E.2d 894
(1990). Thus, we will review Morgan’s insufficiency of the evidence argument for plain
error.
{¶ 38} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St. 3d 380, 678
N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant
inquiry is whether any rational factfinder viewing the evidence in a light most favorable to
the state could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St. 3d 421, 430, 683
N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds
that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
(Citations omitted.) Id.
{¶ 39} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating
whether a conviction was against the manifest weight of the evidence, the appellate court
must review the entire record, weigh the evidence and all reasonable inferences, consider
witness credibility, and determine whether, in resolving conflicts in the evidence, the trier
-16-
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, 485 N.E.2d 717 (1st Dist.1983). “The fact that the
evidence is subject to different interpretations does not render the conviction against the
manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61,
2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.
{¶ 40} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). However, we may determine which of several competing
inferences suggested by the evidence should be preferred. A judgment of conviction
should be reversed as being against the manifest weight of the evidence only in
exceptional circumstances. Martin at 175.
Rape and Kidnapping of D.C. and C.R.
{¶ 41} As previously noted, Morgan was convicted of two counts of rape in violation
of R.C. 2907.02(A)(2). To be convicted under that statute, the State was required to
present evidence establishing that Morgan engaged in sexual conduct with another by
purposely compelling the other person to submit by force or threat of force. R.C.
2907.02(A)(2). The definition of “sexual conduct” includes “vaginal intercourse between
a male and female; anal intercourse,” and “fellatio.” R.C. 2907.01(A). The definition of
“force” is “any violence, compulsion, or constraint physically exerted by any means upon
or against a person or thing.” R.C. 2901.01(A)(1).
-17-
{¶ 42} Morgan was also convicted of two counts of kidnapping in violation of R.C.
2905.01(A)(4). To be convicted under that statute, the State was required to present
evidence establishing that Morgan, by force, threat, or deception, restrained another
person’s liberty with the purpose to engage in sexual activity with the person against their
will. R.C. 2905.01(A)(4). “Sexual activity” is defined as “sexual conduct,” which, as
previously noted, includes vaginal and anal intercourse and fellatio. See id.; R.C.
2907.01(A) and (C). To restrain another person’s liberty means “ ‘to limit one’s freedom
of movement in any fashion for any period of time.’ ” State v. Martin, 10th Dist. Franklin
Nos. 02AP33, 02AP34, 2002-Ohio-4769, ¶ 32, quoting State v. Wingfield, 8th Dist.
Cuyahoga No. 69229, 1996 WL 100847, *3 (Mar. 7, 1996).
{¶ 43} In this case, the record indicates that the trial testimony of both D.C. and
C.R. established all the necessary elements to support a conviction for both rape and
kidnapping. Each woman testified that, during her assault, Morgan pointed a handgun
at her head and forced her to engage in oral and vaginal intercourse with him. D.C.
testified that Morgan prevented her from walking away by pointing a gun at her and
grabbing her arm. D.C. also testified that Morgan pushed her down to the ground and
hit her in the face with his gun prior to sexually assaulting her. Similarly, C.R. testified
that Morgan put a handgun in her face prior to sexually assaulting her. C.R. also testified
that after being sexually assaulted for what seemed like an hour, she attempted to walk
away, but Morgan fired a warning shot with his gun and continued to force her to have
sex with him.
{¶ 44} Although the foregoing testimony established all elements of the rape and
kidnapping charges at issue, Morgan argues that the State failed to present sufficient
-18-
evidence establishing that he was the individual who assaulted D.C. and C.R. With
regard to D.C., Morgan argues that her identification of him using the photograph lineup
was unreliable because D.C. briefly considered another suspect on the lineup and asked
Detective King whether she had picked the right person after she had selected Morgan.
Morgan also contends that D.C.’s identification of him on the photograph lineup was
unreliable because she told Detective Fent “I don’t know if I picked the right person or
not.” Defense Exhibit A. Morgan further argues that D.C. had a difficult time pointing
him out at trial due to her poor eyesight, which D.C. testified was in the same condition
during the assault. We find no merit to these claims.
{¶ 45} Regardless of the weaknesses in D.C.’s identification of Morgan as her
assailant, the fact remains that the State presented DNA evidence linking Morgan to
D.C.’s sexual assault. This included the Y-STR DNA test results that established
Morgan as a DNA contributor on D.C.’s vaginal and anal swabs. Although the nature of
the Y-STR DNA test also includes the men in Morgan’s paternal family line as potential
DNA contributors, when considering the Y-STR DNA test results in conjunction with other
pieces of circumstantial evidence presented at trial, such as: (1) that Morgan lived within
a short walking distance from the scene of the crime; (2) that the assailant traveled on
foot before and after the crime; and (3) that D.C. was able to identify Morgan as her
assailant in the photograph lineup, there was sufficient circumstantial evidence identifying
Morgan as D.C.’s assailant. Although D.C. exhibited some uncertainty about her
identification of Morgan after the photograph lineup was administered, Detective Fent
testified that, in her experience, D.C.’s concern about whether she picked the right person
was a natural concern that is exhibited by victims of crime.
-19-
{¶ 46} The State also presented sufficient evidence establishing that Morgan was
C.R.’s assailant. Although C.R. could not identify Morgan in a photograph lineup,
Morgan was linked to C.R.’s assault through a shell casing that was found at the scene
of the crime. The State’s firearm expert testified that he analyzed the shell casing and
determined that it had been fired from the same gun that was confiscated from Morgan
following a traffic stop. We also note that Morgan never disputed his ownership of the
gun during the investigation.
{¶ 47} Morgan nevertheless argues that the shell casing evidence was insufficient
to identify him as C.R.’s assailant because the bullet found next to the shell casing did
not match his gun. This argument greatly mischaracterizes the evidence. The firearm
expert testified that there was not enough information or “unique characteristics” on the
bullet for him to determine whether it was fired from Morgan’s gun. Trial Trans. p. 282.
That testimony is patently different from concluding that the bullet did not match Morgan’s
gun. Although the firearm expert could not conclusively determine whether the bullet
had been fired from Morgan’s gun, the expert did testify that the bullet had “similar class
characteristics” to Morgan’s firearm. Id. Therefore, while Morgan would like this court
to believe otherwise, the evidence presented by the State did not rule out the possibility
that the bullet was fired from Morgan’s gun.
{¶ 48} Given that: (1) the shell casing found at the scene was positively identified
as being fired from Morgan’s gun; (2) the bullet found at the scene was located less than
one foot away from the shell casing; and (3) no other shell casings or bullets were found
at the scene of the crime, we find that it would be fair to assume that the bullet came from
the shell casing that was fired from Morgan’s gun. When considering the shell casing
-20-
evidence, the logical inferences flowing from it, as well as the fact that: (1) Morgan lived
within a short walking distance from the scene of the crime; (2) the assailant traveled on
foot before and after the crime; and (3) Morgan was alleged to have committed the same
type of crime against D.C. two months earlier at the same location and in the same
manner, there was sufficient circumstantial evidence to identify Morgan as C.R.’s
assailant.
{¶ 49} For the foregoing reasons, when construing the evidence in a light most
favorable to the State, we find that Morgan’s convictions for the rapes and kidnappings of
D.C. and C.R. were supported by sufficient evidence. Accordingly, there was no error,
let alone plain error, in that regard.
{¶ 50} We also cannot conclude that Morgan’s rape and kidnapping convictions
were against the manifest weight of the evidence. Simply because the State relied on
circumstantial evidence to prove the rape and kidnapping charges did not render
Morgan’s convictions against the manifest weight of the evidence. This is because
circumstantial evidence carries the same probative value as direct evidence. State v.
Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus.
{¶ 51} Moreover, although D.C. may have given contradictory testimony at times,
it was for the jury to determine what part of her testimony, if any, was credible. In
reaching its verdict, the jury was free to believe all, part, or none of the testimony of each
witness and to draw reasonable inferences from the evidence presented. State v. Baker,
2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28. In this case, the jury chose to
believe the testimony and evidence that supported the State’s version of the facts.
Therefore, since it is not patently apparent that the jury lost is way in finding Morgan guilty
-21-
of raping and kidnapping D.C. and C.R., we will not disturb that finding on appeal.
Felonious Assault of D.C.
{¶ 52} Morgan also contends that his conviction for the felonious assault of D.C.
was not supported by sufficient evidence and was against the manifest weight of the
evidence. Pursuant to R.C. 2903.11(A)(1), a person commits felonious assault when he
“knowingly * * * [c]ause[s] serious physical harm to another[.]” R.C. 2903.11(A)(1). The
definition of “serious physical harm” includes “[a]ny physical harm that involves some
permanent incapacity, whether partial or total, or that involves some temporary,
substantial incapacity[.]” R.C. 2901.01(A)(5)(c). “Serious physical harm” also includes
“[a]ny physical harm that involves acute pain of such duration as to result in substantial
suffering or that involves any degree of prolonged or intractable pain.” R.C.
2901.01(A)(5)(e).
{¶ 53} As stated previously, D.C. testified that Morgan pushed her to the ground
and struck her in the face during the sexual assault. The record indicates that this
resulted in injuries to D.C.’s arm, face, and knee. The officer who responded to D.C.’s
911 call, Detective Terry, confirmed that D.C. had a small laceration to her face with dried
blood on it and abrasions on her knee and elbow. Terry further testified that D.C. was
taken to the hospital where she received medical care and had pictures taken of her
injuries. The photographic evidence of D.C.’s injuries show that D.C. had dried blood on
her face and a laceration on her nose from where Morgan struck her. See State’s Exhibit
Nos. 22-23. D.C. also had abrasions on her elbow and knee from where she claimed
Morgan pushed her to the ground and raped her. See State’s Exhibit Nos. 24-25.
-22-
{¶ 54} Most importantly, D.C. testified that her arm was broken as a result of
Morgan pushing her to the ground. The SANE nurse who examined D.C., Mary Beth
Hannon, testified that she reviewed D.C.’s hospital record before examining her and that
the record indicated D.C. had been diagnosed with a fractured right shoulder. Hannon
also testified that the hospital record indicated that D.C. had to undergo a “reduction” to
put her shoulder back into place. Trial Trans. p. 239. D.C. testified that as a result of
her fractured shoulder, she had to recuperate in a nursing home for three months.
{¶ 55} Morgan claims that the foregoing evidence was insufficient to establish that
D.C. suffered serious physical harm, because the State failed to admit D.C.’s medical
records into evidence. But, contrary to Morgan’s claim, “[s]erious physical harm may be
shown by testimony of medical treatment.” State v. Huckabee, 8th Dist. Cuyahoga No.
67588, 1995 WL 628374, *4 (Oct. 26, 1995). Accord State v. Grider, 8th Dist. Cuyahoga
No. 68594, 1995 WL 753933, *2-3 (Dec. 20, 1995); State v. Petty, 10th Dist. Franklin Nos.
11AP-716 and 11AP-766, 2012-Ohio-2989, ¶ 29-35 (rejecting the defendant’s argument
that the State failed to establish the victim suffered serious physical harm because it
offered no medical evidence to document the victim’s injuries or to substantiate that the
injuries were serious).
{¶ 56} Several appellate courts in this state have held that testimony from victims
regarding their injuries is sufficient to establish serious physical harm. See, e.g., State
v. Higgins, 9th Dist. Summit No. 26120, 2012-Ohio-5650, ¶ 17 (finding victim’s testimony
that he sustained a gunshot wound, which caused him to suffer a collapsed lung, broken
rib, and nerve damage, that required him to be hospitalized for two weeks was sufficient
evidence that he had suffered serious physical harm under R.C. 2901.01(A)(5)(c) and
-23-
(e)); State v. Driesbaugh, 11th Dist. Portage No. 2002-P-0017, 2003-Ohio-3866, ¶ 47
(finding victim’s testimony that the accident in question caused his arms and legs to
sporadically go numb, making him unsteady on his feet for 21 months and prevented him
from working for approximately 3 months, was sufficient to establish that the victim
suffered a temporary substantial incapacity so as to qualify as serious physical harm
under R.C. 2901.01(A)(5)(c)); State v. Scott, 4th Dist. Washington No. 15CA2, 2015-
Ohio-4170, ¶ 3, and 23-24 (finding “substantial testimony from the victim regarding her
injuries” was sufficient to establish serious physical harm).
{¶ 57} Based on the foregoing, we find that the testimony from D.C. and Hannon
indicating that D.C. suffered from a fractured right shoulder and D.C.’s testimony that she
recuperated at a nursing home for three months was sufficient evidence of “serious
physical harm” as defined under R.C. 2901.01(A)(5)(c) and (e). This court has in fact
held that pushing a victim to the ground causing her to suffer a broken arm constitutes
serious physical harm as that term is used in the statute. State v. Boyd, 2d Dist.
Montgomery No. 11659, 1990 WL 78595, *4 (June 5, 1990). Accord State v. Brown, 2d
Dist. Montgomery No. 27738, 2018-Ohio-3068, ¶ 30. Therefore, when viewing the
evidence in a light most favorable to the State, we find that Morgan’s conviction for
felonious assault was also supported by sufficient evidence, and that there was no error,
let alone plain error, in that regard.
{¶ 58} In challenging the manifest weight of the evidence, Morgan argues that the
evidence of the cause of D.C.’s shoulder injury was inconsistent because Detective Terry
indicated in his written report that D.C.’s injuries “could potentially have been caused by
falling” as a result of being “severely intoxicated.” Trial Trans. p. 211-213; Defendant’s
-24-
Exhibit B. However, whether D.C. fell down due to being intoxicated or due to being
pushed by Morgan was for the jury to decide based on the evidence presented at trial.
Here, the jury believed D.C.’s testimony that she fell and fractured her shoulder as a result
of Morgan pushing her to the ground during the sexual assault. We will not disturb that
finding as “[t]he jury, as the trier of fact, is in the best position to make credibility
determinations and to draw inferences from the evidence because they observe the
witness’ demeanor and because they alone actually hear the testimony as it is given.”
State v. Wagers, 12th Dist. Butler No. CA92-11-231, 1993 WL 369240, *1 (Sept. 20,
1993), citing State v. Thomas, 70 Ohio St. 2d 79, 79-80, 434 N.E.2d 1356 (1982).
Therefore, Morgan’s felonious assault conviction was not against the manifest weight of
the evidence.
{¶ 59} Having found that Morgan’s convictions for rape, kidnapping and felonious
assault were supported by sufficient evidence and were not against the manifest weight
of the evidence, Morgan’s first assignment of error lacks merit and is overruled.
Second Assignment of Error
{¶ 60} Under his second assignment of error, Morgan contends that he received
ineffective assistance of counsel because his trial counsel failed to: (1) object to and move
to suppress D.C.’s identification of him at trial; (2) request a mistrial after Detective King
testified in a manner that suggested Morgan had a criminal history; and (3) renew his
pretrial motion for relief from prejudicial joinder. Morgan’s claims lack merit.
Standard of Review for Ineffective Assistance Claims
-25-
{¶ 61} This court reviews alleged instances of ineffective assistance of trial counsel
under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which has been adopted by the Supreme Court of
Ohio in State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989). Pursuant to those
cases, in order to prevail on an ineffective assistance claim, Morgan must show that his
trial counsel rendered deficient performance and that counsel’s deficient performance
prejudiced him. Strickland at paragraph two of the syllabus; Bradley at paragraph two of
the syllabus. The failure to make a showing of either deficient performance or prejudice
defeats a claim of ineffective assistance of counsel. Strickland at 697.
{¶ 62} To establish deficient performance, Morgan must show that his trial
counsel’s performance fell below an objective standard of reasonable representation. Id.
at 688. In evaluating counsel’s performance, a reviewing court “must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. “The adequacy of counsel’s performance must be viewed in
light of all of the circumstances surrounding the trial court proceedings.” State v.
Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29, citing Strickland.
“Hindsight is not permitted to distort the assessment of what was reasonable in light of
counsel’s perspective at the time.” State v. Cook, 65 Ohio St. 3d 516, 524-525, 605
N.E.2d 70 (1992), citing Strickland at 687-689. “[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 at 689. (Other citation omitted.)
{¶ 63} To establish prejudice, Morgan must show that there is a reasonable
-26-
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. State v. Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d
864, ¶ 204, citing Strickland at 687-688, 694; Bradley at paragraph two of the syllabus.
“ ‘A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” Bradley at 142, quoting Strickland at 694.
Failure to Object/Move to Suppress D.C.’s Identification of Morgan
{¶ 64} Morgan first contends that his trial counsel provided ineffective assistance
by not filing a motion to suppress D.C.’s testimony identifying him as her assailant.
Morgan claims that a motion to suppress should have been filed because of how the
photograph lineup was administered to D.C. and because of the uncertainty that D.C.
exhibited after she chose Morgan’s picture on the lineup. Morgan also claims that his
trial counsel was ineffective in failing to object to the admissibility of D.C.’s in-court
identification of him at trial. We disagree.
{¶ 65} As a preliminary matter, we note that the “ ‘failure to file a suppression
motion does not constitute per se ineffective assistance of counsel.’ ” State v. Madrigal,
87 Ohio St. 3d 378, 389, 721 N.E.2d 52 (2000), quoting Kimmelman v. Morrison, 477 U.S.
365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). Accord State v. Black, 2d Dist.
Montgomery Nos. 26986, 26991, 2016-Ohio-7901, ¶ 26. “Where the basis of an
ineffective assistance of counsel claim is counsel’s failure to file a motion to suppress
evidence, the defendant making that claim must prove that the basis of the suggested
suppression claim is meritorious.” In re D.D., 2d Dist. Montgomery No. 22740, 2009-
Ohio-808, ¶ 3, citing Kimmelman and State v. Pillow, 2d Dist. Greene No. 07CA095, 2008-
-27-
Ohio-6046.
{¶ 66} “Due process may require a court to suppress eyewitness testimony when
the identification results from an unduly suggestive identification procedure.” State v.
Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208, citing Foster v.
California, 394 U.S. 440, 442, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). Therefore, “[a]n
accused who seeks to preclude in-court identification testimony bears the burden of
convincing the court that the out-of-court identification procedure employed was both
suggestive and unnecessary and that the testimony will be unreliable under the totality of
the circumstances.” State v. Allen, 1st Dist. Hamilton Nos. C-870437, C-870475, 1988
WL 92639, *1 (Sept. 7, 1988), citing Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243,
53 L. Ed. 2d 140 (1977). (Other citation omitted.)
{¶ 67} “[N]o due process violation will be found where an identification does not
stem from an impermissibly suggestive confrontation, but is instead the result of
observations at the time of the crime.” State v. Davis, 76 Ohio St. 3d 107, 112, 666
N.E.2d 1099 (1996); Coleman v. Alabama, 399 U.S. 1, 5-6, 90 S. Ct. 1999, 26 L. Ed. 2d
387 (1970). “A lineup is unduly suggestive if it steers the witness to one suspect,
independent of the witness’s honest recollection.” Adams at ¶ 208, citing Wilson v.
Mitchell, 250 F.3d 388, 397 (6th Cir.2001); see also Jells v. Mitchell, 538 F.3d 478, 511-
512 (6th Cir.2008) (a lineup was found unduly suggestive where the defendant was
depicted in a prison jumpsuit and the other participants in the lineup were in street
clothes).
{¶ 68} In this case, Morgan conceded in his appellate brief that it is “questionable”
whether the photograph lineup was administered to D.C. in a suggestive manner.
-28-
Indeed, the video evidence of Detective King administering the photograph lineup to D.C.
establishes that King merely confirmed whether or not D.C. chose photograph #4
(Morgan). Therefore, we find nothing in the video demonstrating that King improperly
steered D.C. to pick Morgan’s photograph.
{¶ 69} Despite this, Morgan argues that D.C.’s identification of him was unreliable
because D.C. thought the individual shown in photograph #6 also looked like her
assailant. Morgan further claims that D.C.’s identification of him was unreliable because,
after picking Morgan’s photograph, D.C. asked if she had picked the right person and
exhibited uncertainty as to whether she had picked the right person. However, the fact
remains that D.C. chose the photograph of Morgan without the presence of any unduly
suggestive tactics. That D.C. may have had concerns about whether she picked the
right person afterwards goes to the weight and credibility of her identification of Morgan,
not to its admissibility.
{¶ 70} Because D.C.’s identification of Morgan did not stem from an impermissibly
suggestive confrontation procedure, but was instead based on D.C.’s memory of her
assailant’s appearance, Morgan’s trial counsel may have reasonably concluded that it
would have been futile to file a motion to suppress D.C.’s identification testimony. Such
a decision is a matter of trial strategy that cannot form the basis of an ineffective
assistance claim. Also, while the record indicates that D.C. had some difficulty pointing
out Morgan in the courtroom, D.C. was eventually able to point him out and identify him
as her assailant. Trial counsel’s failure to object to D.C.’s arduous in-court identification
was also a matter of trial strategy.
{¶ 71} That said, even if we had found that trial counsel rendered deficient
-29-
performance by not filing a motion to suppress or by not objecting to D.C.’s in-court
identification, Morgan cannot establish that the outcome of his trial would have been
different but for those failures. Even without D.C.’s identification, Morgan’s identity was
otherwise established through the Y-STR DNA test results and other circumstantial
evidence, including the fact that Morgan lived within a short walking distance from the
scene of the crime scene and that D.C.’s assailant traveled on foot. Therefore, Morgan
cannot establish that he was prejudiced by his trial counsel’s failures. Given that Morgan
failed to establish deficient performance on the part of his trial counsel and resulting
prejudice, his ineffective assistance claim lacks merit.
Failure to Request a Mistrial
{¶ 72} Morgan also argues that his trial counsel provided ineffective assistance by
failing to request a mistrial after Detective King testified in a manner that improperly
suggested Morgan had a criminal history. Specifically, Morgan takes issue with the
portion of King’s testimony explaining how photograph lineups are generated. King
testified that photograph lineups are generated from “OLEG, the Ohio Law Enforcement
Gateway, driver’s license photos, or six different photos from the City of Springfield’s jail
photo database.” Trial Trans. p. 131-132. King also testified that the photograph lineup
administered to D.C. was generated using “the Clark County Sheriff’s Department,
Springfield Police Division photo logs.” Id. at 134-135. Morgan asserts that this
testimony suggested to the jury that the photographs used in the lineup depicted
individuals with criminal histories. According to Morgan, this deprived him of a fair trial.
We disagree.
-30-
{¶ 73} “When a reference to a defendant’s prior record does not rise to the level of
plain error meriting the trial court to sua sponte declare a mistrial, then ‘there is no basis
to claim that [defendant’s] trial counsel acted ineffectively in failing to seek a mistrial.’ ”
State v. Howard, 2d Dist. Montgomery No. 18884, 2002 WL 1332522, *4 (June 14, 2002),
quoting State v. Jones, 115 Ohio App. 3d 204, 208, 684 N.E.2d 1304 (7th Dist.1996).
“Plain error exists ‘if the trial outcome would clearly have been different, absent the
alleged error in the trial court proceedings.’ ” State v. Kessel, 2019-Ohio-1381, ___
N.E.3d ___, ¶ 33 (2d Dist.), quoting State v. Bahns, 185 Ohio App. 3d 805, 2009-Ohio-
5525, 925 N.E.2d 1025, ¶ 25 (2d Dist.). (Other citation omitted.)
{¶ 74} Although improper, we cannot say that Detective King’s indirect, general
reference to Morgan’s prior criminal history affected the outcome of trial. Even if the
statement had not been made, the record indicates that there was an abundance of direct
and circumstantial evidence establishing that Morgan was the individual who attacked
D.C. and C.R., the strongest being the Y-STR DNA test results linking Morgan to the
assault on D.C. and the firearm analysis linking Morgan to the assault on C.R. Therefore,
because King’s statement did not result in prejudice to Morgan, trial counsel was not
ineffective in failing to request a mistrial.
Failure to Renew Motion for Relief from Prejudicial Joinder
{¶ 75} For his last ineffective assistance claim, Morgan contends that his trial
counsel was ineffective in failing to renew his motion for relief from prejudicial joinder at
any time during trial. We again disagree.
{¶ 76} Crim.R. 8(A) governs the joinder of offenses and provides that: “Two or
-31-
more offenses may be charged in the same indictment, information or complaint in a
separate count for each offense if the offenses charged * * * are of the same or similar
character, or are based on the same act or transaction, or are based on two or more acts
or transactions connected together or constituting parts of a common scheme or plan, or
are part of a course of criminal conduct.”
{¶ 77} “The law favors joinder to prevent successive trials, to minimize the
possibility of incongruous results in successive trials before different juries, to conserve
judicial resources, and to diminish the inconvenience to witnesses.” State v. Broadnax,
2d Dist. Montgomery No. 21844, 2007-Ohio-6584, ¶ 33, citing State v. Schaim, 65 Ohio
St.3d 51, 58, 600 N.E.2d 661 (1992) and State v. Torres, 66 Ohio St. 2d 340, 343, 421
N.E.2d 1288 (1981). Accord State v. Goodner, 195 Ohio App. 3d 636, 2011-Ohio-5018,
961 N.E.2d 254, ¶ 39 (2d Dist.). In Broadnax, this court held that a joinder was
appropriate under Crim.R. 8(A) where “all of the offenses at issue were of the same or
similar character, being aggravated robberies, all were committed within a six day period
* * * [a]ll of the offenses involved a similar modus operandi and were committed the same
way, and all of the offenses involved a common scheme, plan or course of criminal
conduct.” Broadnax at ¶ 34. See also State v. Ward, 2d Dist. Montgomery No. 26773,
2016-Ohio-5354, ¶ 15 (joinder appropriate under Crim.R. 8(A) where two aggravated
robberies were committed at the same location in a virtually identical manner on
consecutive days).
{¶ 78} However, “[e]ven if offenses are properly joined pursuant to Crim.R. 8(A), a
defendant may move to sever the charges pursuant to Crim.R. 14.” Broadnax at ¶ 37.
Crim.R. 14, requires the trial court to order separate trials “[i]f it appears that a defendant
-32-
* * * is prejudiced by a joinder of offenses[.]” Joinder may be prejudicial “when the
offenses are unrelated and the evidence as to each is very weak, * * * but it is otherwise
when the evidence is direct and uncomplicated and can reasonably be separated as to
each offense[.]” (Citations omitted.) Torres at 343-344. “The mere possibility that the
defendant might have a better choice of trial tactics if the counts are separated, or the
mere possibility that he might desire to testify on one count and not on the other, is
insubstantial and speculative; it is not sufficient to show prejudice.” (Citation omitted.)
Id. at 344.
{¶ 79} “One of the ways in which the State can negate a defendant’s claim of
prejudice is by showing that the evidence pertaining to each crime joined at trial is simple
and direct[.]” (Citations omitted.) Broadnax at ¶ 38. Accord State v. Brinkley, 105
Ohio St. 3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 30. “Evidence is ‘simple and direct’
if the jury is capable of readily separating the proof required for each offense, if the
evidence is unlikely to confuse jurors, if the evidence is straightforward, and if there is
little danger that the jury would ‘improperly consider testimony on one offense as
corroborative of the other.’ ” State v. Freeland, 4th Dist. Ross No. 12CA003352, 2015-
Ohio-3410, ¶ 14, quoting State v. Varney, 4th Dist. Hocking Nos. 07CA18, 07AP18, 2008-
Ohio-5283, ¶ 19; State v. Skatzes, 104 Ohio St. 3d 195, 2004-Ohio-6391, 819 N.E.2d 215,
¶ 34; State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 50-51.
Therefore, “a defendant does not suffer prejudice from joinder of offenses when the
offenses charged in an indictment are ‘simple and distinct,’ when ‘[t]he factual situation of
each crime was easy to understand and was capable of segregation,[’] and when ‘[t]he
crimes involved different victims, different factual situations, and different witnesses.’ ”
-33-
Freeland at ¶ 14, quoting State v. Clifford, 135 Ohio App. 3d 207, 212, 733 N.E.2d 621
(1st Dist.1999).
{¶ 80} The State can also rebut a defendant’s claim of prejudicial joinder by
satisfying the “other acts” test. LaMar at ¶ 50. That is, “[i]f in separate trials the state
could introduce evidence of the joined offenses as ‘other acts’ under Evid.R. 404(B), a
defendant cannot claim prejudice from the joinder.” Id., citing State v. Coley, 93 Ohio
St.3d 253, 259-260, 754 N.E.2d 1129 (2001). Pursuant to Evid.R. 404(B), evidence of
other bad acts is admissible for “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” For other-acts evidence to be
admissible to prove identity through a certain modus operandi, the “ ‘other-acts evidence
must be related to and share common features with the crime in question.’ ” Coley at
260, quoting State v. Lowe, 69 Ohio St. 3d 527, 634 N.E.2d 616, paragraph one of the
syllabus. (Other citation omitted.)
{¶ 81} As previously noted, Morgan filed a Crim.R. 14 motion for relief from
prejudicial joinder that requested the trial court to sever the rape, kidnapping, and
felonious assault charges related to D.C. from the rape and kidnapping charges related
to C.R. Morgan alleged that the joinder of those offenses prejudiced him because there
was a risk that the jury would use the evidence in one case to bolster the allegations in
the other case. The trial court overruled the motion and Morgan’s trial counsel failed to
renew it at any time during Morgan’s jury trial.
{¶ 82} Morgan now claims that his trial counsel’s failure to renew the motion for
relief from prejudicial joinder amounted to ineffective assistance. However, we find that
the joinder of the offenses against Morgan was appropriate under Crim.R. 8(A) and that
-34-
there was no prejudice warranting a severance under Crim.R. 14. This is because the
evidence relating to the offenses against D.C. and C.R. was simple, direct, and capable
of separation. The factual situation of each incident was also easy to understand, as
each incident involved separate victims and separate physical evidence. Furthermore,
even if the offenses in question had been severed, given the common modus operandi in
each case, the evidence from one case would have otherwise been admissible in the
other case as other-acts evidence under Evid.R. 404(B) to prove Morgan’s identity.
{¶ 83} For the foregoing reasons, even if Morgan’s trial counsel had renewed the
motion for relief from prejudicial joinder at trial, it is unlikely the trial court would have
changed its mind and granted the motion. Any claim otherwise is pure speculation.
Accordingly, because Morgan’s claim is supported by, at best, pure speculation, Morgan
cannot establish that he was prejudiced by counsel’s failure to renew the motion.
{¶ 84} Having found no merit to any of the ineffective assistance claims raised by
Morgan, his second assignment of error is overruled.
Third Assignment of Error
{¶ 85} Under his third assignment of error, Morgan claims that he was denied the
right to a fair trial due to pre-indictment delay. In support of this claim, Morgan contends
that the nine-month delay between the May 25, 2015 attack on D.C. and his March 14,
2016 indictment prejudiced him because it allowed D.C.’s memory of her assailant to
fade, thus hindering her ability to identify him. Morgan claims that he was further
prejudiced by the delay because it resulted in missing evidence. We again find no merit
to Morgan’s claims.
-35-
{¶ 86} It is well established that “[d]elay between a defendant’s involvement in
alleged criminal conduct and an indictment involving such conduct may deprive a
defendant of his constitutionally protected due process rights.” State v. Moore, 2017-
Ohio-1307, 88 N.E.3d 593, ¶ 24 (2d Dist.), citing State v. Luck, 15 Ohio St. 3d 150, 472
N.E.2d 1097 (1984), paragraph two of the syllabus. However, “preindictment delay
violates due process only when it is unjustifiable and causes actual prejudice[.]” State v.
Jones, 148 Ohio St. 3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. Therefore, “[w]hen a
defendant alleges that he has been prejudiced by the State’s pre-indictment delay in
pursuing a case, the defendant must first produce evidence demonstrating that the delay
has caused actual prejudice to his defense.” State v. Shoopman, 2d Dist. Montgomery
No. 27182, 2017-Ohio-2612, ¶ 8, citing Luck at 157-158. “Then, if the defendant has
established actual prejudice, the State must produce evidence of a justifiable reason for
the delay.” Id., citing Luck at 158.
{¶ 87} “Actual prejudice exists when missing evidence or unavailable testimony,
identified by the defendant and relevant to the defense, would minimize or eliminate the
impact of the state’s evidence and bolster the defense.” Jones at ¶ 28, citing Luck at
157-158. “A determination of actual prejudice involves ‘ “a delicate judgment” ’ and a
case-by-case consideration of the particular circumstances.” Id. at ¶ 20, quoting State
v. Walls, 96 Ohio St. 3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting United
States v. Marion, 404 U.S. 307, 325, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). “A reviewing
court must scrutinize a defendant’s claim of prejudice in light of the particular evidence
that was lost or is unavailable as a result of the delay and, in particular, consider the effect
of the lost evidence on the defense[.]” Shoopman at ¶ 9, citing Jones at ¶ 23.
-36-
{¶ 88} “General assertions that memories have faded are not sufficient to satisfy a
defendant’s burden to demonstrate that he suffered specific, actual prejudice.”
(Citations omitted.) State v. Conley, 2d Dist. Clark No. 01-CA-0013, 2001 WL 958834,
*2 (Aug. 24, 2001). Accord Shoopman at ¶ 9; Jones at ¶ 21, 27. See also Miamisburg
v. Rinderle, 2d Dist. Montgomery No. 26094, 2015-Ohio-351, ¶ 17 (holding the
defendant's broad assertion of fading memories, although potentially true, was not
sufficient to establish actual prejudice because the defendant did not identify any
particular memory at issue or explain how the fading memories prejudiced him). “That
does not mean, however, that demonstrably faded memories * * * cannot satisfy the
actual-prejudice requirement.” Jones at ¶ 21.
{¶ 89} In this case, Morgan’s general assertion that the pre-indictment delay
allowed D.C.’s memory of her assailant to fade is insufficient to establish actual prejudice.
Moreover, even if D.C.’s memory had been compromised by the nine-month pre-
indictment delay, Morgan’s identity was otherwise established through the Y-STR DNA
test results and other circumstantial evidence, i.e., the fact that Morgan lived within a short
walking distance from the scene of the crime and that D.C.’s assailant traveled on foot.
Therefore, regardless of D.C.’s memory, the State’s evidence sufficiently identified
Morgan as her assailant. Accordingly, we cannot say that D.C.’s possibly faded memory
of her assailant resulted in actual prejudice to Morgan.
{¶ 90} Morgan also asserts that the pre-indictment delay resulted in missing
evidence, including D.C.’s underwear. The record indicates that D.C.’s underwear was
not included with the rape kit that was sent to BCI for testing and that D.C. advised the
SANE nurse that her underwear was left at the crime scene. Detective Fent testified that
-37-
she had no knowledge of the underwear until it was discussed at trial. Regardless,
Morgan does not explain how D.C.’s underwear was relevant to his defense, and we fail
to see how the pre-indictment delay caused the underwear not to be collected and tested.
If anything, locating and testing the underwear would have prolonged the investigation
and created further pre-indictment delay.
{¶ 91} Morgan further claims that the pre-indictment delay prejudiced him because
it resulted in certain pieces of physical evidence related to C.R.’s assault not being
collected and tested. Specifically, Morgan asserts that the shell casing and bullet found
at the crime scene and C.R.’s personal belongings that were dropped by the assailant
should have been, but were not tested for fingerprints. Morgan claims that the missing
fingerprint evidence could possibly have exonerated him. The record, however,
indicates that it was not the pre-indictment delay which prevented the fingerprint evidence
from being collected. Rather, Detective Terry indicated that he did not dust the
aforementioned items for fingerprints because of the weather. Specifically, Terry
testified that, on the night of C.R.’s assault, the ground was wet and it was “very humid”
and “moist” outside. Trial Trans. p. 203 and 206. Based on the weather conditions,
Terry testified that the fingerprint powder would have just stuck to the moisture and “made
a mess.” Id. at 206. Terry also testified that items made of fabric, such as C.R.’s purse,
cannot be fingerprinted. Therefore, C.R.’s claim that the pre-indictment delay resulted
in missing fingerprint evidence lacks merit.
{¶ 92} Morgan additionally claims that he was prejudiced because his gun was not
sent to the firearm expert for testing. We again fail to see how this was caused by the
pre-indictment delay or how it resulted in actual prejudice to Morgan. With or without the
-38-
gun, the firearm expert was able to compare the shell casing and bullet found at the scene
of the crime with shell casings and bullets that were test-fired from Morgan’s gun. In
doing so, the firearm expert concluded that the shell casing found at the scene was fired
from Morgan’s gun and that the bullet had “similar class characteristics” to Morgan’s gun.
Trial Trans. p. 282. Sending the gun itself to the firearm expert would not have minimized
this evidence or bolstered the defense. If anything, it would have prolonged the
investigation and would have created greater pre-indictment delay.
{¶ 93} We further note that the pre-indictment delay was less than a year and was
simply due to the pending investigation. The record indicates that the delay was not
used to gain a tactical advantage or due to any negligence or error on the part of the
investigating officers. See State v. Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, 45
N.E.3d 127, ¶ 98. During the investigation, the officers and detectives compiled
evidence, sent evidence to BCI for testing, and located and interviewed witnesses. The
record indicates that Morgan’s gun, a key piece of evidence linking Morgan to C.R.’s
assault, was not discovered until he was pulled over in a traffic stop several months later
in November 2015. Since the firearm expert needed test-fired shell casings and bullets
from that gun in order to conduct his analysis, the earliest the firearm expert could have
begun his testing was November 2015, and the record indicates that the firearm expert’s
testing was completed on March 4, 2016. In addition, the Y-STR DNA testing in D.C.’s
case could not be performed until a buccal swab was obtained from Morgan after he was
placed in custody. Even then, once the buccal swab was obtained, the Y-STR DNA
testing was not completed until January 8, 2016. Furthermore, D.C., a known transient,
could not be located for an interview with Detective Fent until March 2, 2016. Therefore,
-39-
Morgan not only failed to establish actual prejudice flowing from the pre-indictment delay,
but the record indicates that the pre-indictment delay was justifiable in that it was simply
a result of the pending investigation.
{¶ 94} For the foregoing reasons, Morgan’s Third Assignment of Error is overruled.
Fourth Assignment of Error
{¶ 95} Under his fourth assignment of error, Morgan contends that the trial court
erred in granting a trial continuance so that the State could locate D.C. We once again
disagree with Morgan’s claim.
{¶ 96} “The trial court has broad discretion to grant or deny a motion for a
continuance.” State v. Danon, 2018-Ohio-419, 105 N.E.3d 596, ¶ 28 (2d Dist.), citing
State v. Bones, 2d Dist. Montgomery No. 26017, 2015-Ohio-784, ¶ 61. Therefore, an
appellate court must not reverse a trial court’s decision on a motion for continuance
absent an abuse of discretion. State v. Unger, 67 Ohio St. 2d 65, 67, 423 N.E.2d 1078
(1981). “A trial court abuses its discretion when it makes a decision that is unreasonable,
unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio St. 3d
343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “It is to be expected that most instances of
abuse of discretion will result in decisions that are simply unreasonable, rather than
decisions that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d 597
(1990). “A decision is unreasonable if there is no sound reasoning process that would
support that decision.” Id.
{¶ 97} Whether the trial court abused its discretion by granting or denying a
-40-
requested continuance depends upon the reasons offered for the requested continuance.
State v. Blair, 171 Ohio App. 3d 702, 2007-Ohio-2417, 872 N.E.2d 986, ¶ 11 (2d Dist.).
In exercising its discretion to grant or deny a motion for continuance, a trial court should
consider “ ‘the length of the delay requested; whether other continuances have been
requested and received; the inconvenience to litigants, witnesses, opposing counsel and
the court; whether the requested delay is for legitimate reasons or whether it is dilatory,
purposeful, or contrived; whether the defendant contributed to the circumstance which
[gave] rise to the request for a continuance; and other relevant factors, depending on the
unique facts of each case.’ ” State v. Bocock, 2d Dist. Montgomery No. 22481, 2008-
Ohio-5641, ¶ 23, quoting State v. Maxwell, 2d Dist. Montgomery No. 13966, 1993 WL
393835, *7 (Oct. 7, 1993). “It is within the trial court’s discretion to decide which of the
above factors is to be given the most weight.” (Citation omitted.) State v. Parker, 2d
Dist. Montgomery No. 18926, 2002-Ohio-3920, ¶ 16.
{¶ 98} In this case, trial was originally scheduled for July 24, 2018. D.C.,
however, did not appear. The day before trial, the State offered to dismiss the rape,
kidnapping, and felonious assault charges related to D.C. if Morgan agreed to plead guilty
to the rape and kidnapping charges related to C.R. Morgan, however, declined the
State’s plea offer and insisted on going to trial. As a result, the State moved the trial
court for a continuance on the day of trial so that D.C. could be located. In doing so, the
State advised the trial court that, for the past month, it had attempted to contact and serve
D.C. with a subpoena, but was ultimately unsuccessful due to her transient nature. The
Stated also advised the trial court that it had requested location assistance from the
Springfield Police Intelligence Unit and the Sherriff’s Office. The State further indicated
-41-
that an officer had provided it with information about D.C.’s location, but that service on
D.C. was unsuccessful at that address. The record indicates that the State also attempted
to contact D.C. by phone, which proved unsuccessful. The State, nevertheless, advised
the trial court that D.C. had recently been sighted and that officers were currently looking
for her.
{¶ 99} Although taking into consideration the last-minute nature of the State’s
request for a continuance, the trial court granted the State a short, three-week trial
continuance. Given D.C.’s transient nature, the State’s earnest attempts to locate D.C.,
and Morgan’s decision to move forward with trial, we do not find that the trial court’s
decision to grant a continuance was unreasonable. The length of the continuance was
short so as to minimize the inconvenience to the litigants, the trial witnesses, and counsel.
In addition, the continuance was requested for a legitimate reason, as the State made
earnest attempts to locate D.C. well before the trial date and could be faulted for her
transient nature. Therefore, we do not find that the trial court’s decision to grant the trial
continuance was an abuse of discretion.
Conclusion
{¶ 100} Having overruled all four assignments of error raised by Morgan, the
judgment of the trial court is affirmed.
.............
HALL, J. and TUCKER, J., concur.
-42-
Copies sent to:
John M. Lintz
Kimberly Melchor
Hon. Richard J. O’Neill