State v. Madden

[Cite as State v. Madden, 2017-Ohio-8894.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 16AP-259
(C.P.C. No. 15CR-740)
v. :
(REGULAR CALENDAR)
Frederick Madden, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 7, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: April F. Campbell, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Frederick Madden, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a jury trial in which the jury returned verdicts finding him guilty of
kidnapping, rape, and felonious assault.
{¶ 2} On February 13, 2015, appellant was indicted on one count of rape, in
violation of R.C. 2907.02, one count of felonious assault, in violation of R.C. 2903.11, and
one count of kidnapping, in violation of R.C. 2905.01. Each of the counts also carried a
repeat violent offender specification.
{¶ 3} On January 30, 2015, Columbus Police Officer Kraig Gibson was dispatched
to an address on Markison Avenue, Columbus, following a report of a female "who had
been severely assaulted." (Tr. Vol. I at 48.) The woman told Officer Gibson that a male
had forced her to the rear of a location "a few houses from where she was staying." (Tr.
No. 16AP-259 2
Vol. I at 54.) Officer Gibson "called for a squad for her to be transported to the hospital
because she had bad injuries, severely bad injuries." (Tr. Vol. I at 48.) Other officers
arrived and "went back and found the scene." (Tr. Vol. I at 56.)
{¶ 4} Columbus Police Officer Joshua Jarrell and his partner, Officer Sam Moore,
responded to a dispatch in the early morning hours of January 30, 2015, arriving at
Markison Avenue shortly after Officer Gibson. The officers walked to the back of a vacant
house and found some underwear and observed blood near a concrete stoop. The officers
secured the scene until police detectives arrived.
{¶ 5} A.S., a 39-year-old female, resides on the west side of Columbus; in 2014
she was homeless. In January 2015, at the time of the events at issue, A.S. was staying
with two friends, Dale and Connie, who had a residence near the intersection of Parsons
and Markison Avenues.
{¶ 6} In the early morning hours of January 30, 2015, A.S. was returning to Dale
and Connie's house after visiting with a friend. While A.S. was walking through an alley,
she encountered a male who asked if she was working. A.S. testified that "[h]e questioned
me and I said, 'I'm not working.' " A.S. related that she "kept walking and he grabbed me
by my hair and punched me in my face." (Tr. Vol. I at 119.) The man dragged A.S. by her
hair to the backyard of an abandoned house; during this time, he also punched her on the
back of her head, the back of her ribs, and kicked her in the legs. A.S. was familiar with
the abandoned house because she had previously slept at that location while homeless.
Once in the backyard, A.S. testified that "[t]he beating got worse, * * * the blows, the
kicks, the punching in my head and my face." (Tr. Vol. I at 132.)
{¶ 7} The man told A.S. that he had a gun. A.S. testified that the man "ripped my
clothes off, threw it. Threw my pants, threw them. And my shoes, he threw them. Even
my underwear with a maxi pad." (Tr. Vol. I at 132-33.) The man "[s]aid, 'Bitch, shut the
fuck up.' " A.S. "told him [she] was cold." She "started to cry and * * * said, 'Please don't
do this. I have kids.' " The man "said, 'Bitch, shut the fuck up,' again anytime I spoke."
A.S. stated that her "whole face was hitting the concrete where it was ice and snow. And
then he would punch me in my ribs and hit me in the back of the head again." (Tr. Vol. I
at 133.) A.S. testified that the man then raped her "from behind." After "he was finished,"
he "kicked [her] and also spat on [her], told [her] to count to a hundred." (Tr. Vol. I at
134.) The man told her if she got up he would shoot her.
No. 16AP-259 3
{¶ 8} After the assailant left the scene, A.S. walked toward Parsons Avenue
looking for a police officer. She was bleeding, and walked to the residence of her friends
Dale and Connie. When she arrived, Connie "start[ed] to cry and sa[id], 'Oh, my God,
what happened?' And Dale said, 'What happened?' " (Tr. Vol. I at 136.) They walked to a
nearby fire station but were unable to locate anyone, so Dale called 911.
{¶ 9} A police officer arrived and asked A.S. if "I could take him to where this
happened to me and I said yes." Connie and Dale also walked with A.S. and the officer,
"and they started to see the blood trail." (Tr. Vol. I at 139.) A.S. testified that her assailant
did not use a condom. When asked how a condom could have been found in the area, A.S.
stated that other females "use that place back there." (Tr. Vol. I at 151.) A.S. further
testified that she and the father of one of her children previously engaged in sexual
activity at that location, and that they would use condoms.
{¶ 10} A.S. testified that she was wearing a "maxi pad" that evening, and that her
assailant used the maxi pad "to wipe himself off with." (Tr. Vol. I at 152.) Specifically,
after the man told her to remain on her stomach and count to one hundred, A.S. "watched
him wipe the blood away; so I watched him pick up my underwear and use them to wipe
himself off with the maxi pad." (Tr. Vol. I at 156.) Police officers found the maxi pad near
the scene.
{¶ 11} A.S. was transported to Grant Hospital for a rape kit examination and
treatment for her injuries. Her jaw was fractured in "three places," requiring surgery, and
she remained in the hospital for more than a week. (Tr. Vol. I at 140.) Police detectives
subsequently interviewed A.S. and showed her a photographic array. She was unable to
identify her assailant from the array. At trial, A.S. identified appellant as "[t]he guy that
raped me." (Tr. Vol. I at 158.)
{¶ 12} On cross-examination, A.S. stated she did not recall telling a police detective
that her assailant was carrying a black semi-automatic handgun, or that he struck her
with the weapon. A.S. testified that the man was dressed in black and wearing a hoodie.
{¶ 13} Columbus Police Detective Tim Hedrick is assigned to the department's
sexual assault unit. Following the incident, Detective Hedrick and his partner were
dispatched to Grant Hospital to speak with A.S. Detective Hedrick testified that the
woman "had been beaten, face was bloodied. She was very upset, crying [and she] could
barely open her mouth to speak." (Tr. Vol. I at 231.)
No. 16AP-259 4
{¶ 14} After leaving the hospital, the detectives drove to Markison Avenue and
"were able to find the yard that she was talking about," located in the backyard of a vacant
house. (Tr. Vol. I at 234.) Detective Hedrick took photographs of the scene, and noted
there was blood on the "cement stoop." (Tr. Vol. I at 240.) Detectives collected a maxi
pad from the stoop, and they also found a condom in the area.
{¶ 15} Detective Hedrick testified that appellant became a suspect in the case and
detectives subsequently interviewed him and obtained buccal swabs from him. At trial,
Detective Hedrick identified state's exhibit G as an array of six photographs prepared as
part of the investigation. When shown the array by detectives, A.S. did not definitively
identify any individuals. On cross-examination, Detective Hedrick testified that A.S.
indicated her assailant struck her with a pistol during the incident.
{¶ 16} Carrie Jackson, a registered nurse, is coordinator of the sexual assault
program at Grant Medical Center. On January 30, 2015, Jackson performed an
examination of A.S. at Grant Hospital. A.S. informed Jackson that her assailant was a
black male "unknown to her, stranger." (Tr. Vol. II at 36.) A.S. stated that he penetrated
her vagina and ejaculated. During the interview, A.S. related that the man had a weapon.
When asked by the nurse if her assailant used a condom, A.S. initially told the nurse that
the man did have a condom; later, however, when asked to recount the events, A.S. stated
that no condom was used.
{¶ 17} Regarding the incident, A.S. informed Jackson that she was "walking from
my girl's house and I was cutting through the alley so nobody would see me and think I
was a working girl. When I got to Parsons and Welch and I was about to cut through the
alley, that's when I saw him." (Tr. Vol. II at 42.) A.S. related that her assailant was
"standing by the funeral home and yelled after me and asked, 'What are you doing out
here, are you working.' I told him, no, I wasn't and to leave me alone." A.S. stated she
"went into the alley and then I heard what sounded like sprinting and he was behind me.
He grabbed me by my hair and my sweatshirt and dragged me behind this house. He was
whaling on me." (Tr. Vol. II at 43.) A.S. further stated: "He hit me all up and down my
back. He hit me in the face and head. I was kind of foggy from being hit so hard." (Tr.
Vol. II at 43-44.) A.S. told the nurse that the man then ripped off her coat, pants, and
shoes. A.S. further related: "He ripped my bra in half. He jerked me by my legs from
behind so I would be on my knees and he raped me doggy style (clarifies rape as his penis
No. 16AP-259 5
into her vagina). He came in me, no condom. He pulled out and tried to wipe it off." (Tr.
Vol. II at 44.)
{¶ 18} At trial, Jackson identified photographs taken of A.S. at the time of the
examination. Jackson noted injuries to A.S.'s face and mouth, including redness, swelling
and bruising, as well as swelling to her hand and redness to both legs.
{¶ 19} Logan Schepeler, a forensic scientist with the Ohio Bureau of Criminal
Investigation ("BCI"), tested the rape kit that the Columbus Police Department submitted
to BCI as part of the investigation. According to Schepeler, "semen was identified from
the vaginal and perianal samples from the rape kit." (Tr. Vol. II at 100.) A single sperm
cell was also collected from the underwear of A.S., and semen was obtained from a
condom collected at the scene.
{¶ 20} Devonie Herdeman, a forensic scientist with BCI, performed DNA analysis
with respect to samples submitted from A.S. and appellant. Herdeman testified that the
BCI laboratory "tested the vaginal and perianal samples and those were found to be a
mixture of [A.S.] as well as Frederick Madden." (Tr. Vol. II at 142.) Testing performed on
a condom found at the scene revealed a mixture for A.S. and an unknown male.
{¶ 21} Following deliberations, the jury returned verdicts finding appellant guilty
of rape, felonious assault, and kidnapping. The trial court made a separate finding of guilt
with respect to the repeat violent offender specification. By entry filed March 17, 2016,
the trial court sentenced appellant to a total of 39 years incarceration, and the court
adjudicated him a Tier III sex offender.
{¶ 22} On appeal, appellant sets forth the following three assignments of error for
this court's review:
I. The prosecutor denied Madden his right to a fair trial and
an impartial jury, by asserting that the only eyewitness to the
events Madden was being prosecuted for, was "credible,"
"believable," and "reliable," and by inundating the jury with
references to her as the "victim" during trial.
II. Madden's convictions should be reversed because
Appellant's trial counsel was deficient at trial, with resulting
prejudice.
III. Prosecutorial misconduct through vouching and
saturating the trial with references to his key witness as the
No. 16AP-259 6
"victim," linked with defense counsel's ineffective
performance, resulted in cumulative error.
{¶ 23} Under the first assignment of error, appellant argues the prosecutor
engaged in misconduct by improperly referring to the state's primary witness as a "victim"
throughout the trial. Appellant also contends the prosecutor improperly vouched for the
credibility of that witness during opening statement.
{¶ 24} In reviewing allegations of prosecutorial misconduct, "the test for appellate
courts is whether the prosecutor's conduct was improper, and if so, whether that conduct
prejudicially affected the substantial rights of the accused." State v. McDowell, 10th Dist.
No. 10AP-509, 2011-Ohio-6815, ¶ 33. A claim of prosecutorial misconduct "will not be
grounds for reversal unless the defendant has been denied a fair trial." Id. A reviewing
court considers allegations of prosecutorial misconduct "in the context of the entire trial."
State v. Muhleka, 2d Dist. No. 19827, 2004-Ohio-1822, ¶ 84. Further, "[w]here it is clear
beyond a reasonable doubt that a jury would have found the defendant guilty even absent
the alleged misconduct, the defendant has not been prejudiced, and the conviction will
not be reversed." Id.
{¶ 25} At the outset, we note that defense counsel did not object to any of the
comments claimed by appellant to be improper. Accordingly, appellant has "waived any
error on that issue on appeal except for plain error." McDowell at ¶ 34. In order "to be
'plain' within the meaning of Crim.R. 52(B) an error must: (1) be a deviation from a legal
rule; (2) be plain or obvious, i.e., an obvious defect in the trial proceedings; and (3) have
affected a substantial right in that it affected the outcome of the trial." Id.
{¶ 26} Appellant first contends the prosecutor engaged in misconduct by
consistently referring to A.S. as the "victim." Appellant cites to various pages of the trial
transcript in which a reference to victim is made.
{¶ 27} A review of the record indicates that the majority of the references to
"victim" cited by appellant were not made by the prosecutor but, rather, by law
enforcement officers testifying about the investigation. Specifically, the references at
issue occurred during the testimonies of Officers Gibson, Christopher Hostettler, and
Detective Hedrick. By way of example, Officer Gibson testified that he responded to the
scene in which "a female * * * had been severely assaulted. We responded to that scene
and made contact with the caller and the female victim at that time." (Tr. Vol. I at 48.)
No. 16AP-259 7
Similarly, Officer Hostettler testified that he responded to the scene and spoke with a
"male and to the victim." (Tr. Vol. I at 90.) Detective Hedrick, when discussing in general
how he becomes involved in an investigation, testified that "[a] lot of times victims will go
to the hospital on their own and we will respond directly to the hospital." (Tr. Vol. II at
217-18.)
{¶ 28} A review of the record indicates that, in context, the law enforcement
officers in most of the instances were referring to the "victim" as a complainant. We also
note there was no dispute that the individual at issue, A.S., had suffered physical harm,
including a broken jaw, as a result of the incident. As noted by plaintiff-appellee, the State
of Ohio, defense counsel acknowledged this fact during opening statement, stating to the
jury that A.S. was taken to Grant Hospital on the morning of January 30, 2015. Defense
counsel further stated: "She was beat up. There's no question about it. We're going to
agree and stipulate her physical and medical evidence." (Tr. Vol. I at 39.)
{¶ 29} While the majority of the references to "victim" were made by law
enforcement personnel, we note several instances in which the prosecutor utilized the
term "victim." For instance, in questioning Detective Hedrick about his general
investigative procedures, the prosecutor inquired: "So is that what you do, you go and
interview the victim for the first time?" (Tr. Vol. I at 219.) The prosecutor further
inquired: "Do you often then end up interviewing the victim for a second time at some
point in your investigation?" (Tr. Vol. I at 220.)
{¶ 30} This court has noted that "[a] 'victim' is a 'person harmed by a crime, tort, or
other wrong.' " State v. Morock, 10th Dist. No. 14AP-559, 2015-Ohio-3152, ¶ 25, citing
Black's Law Dictionary (10th Ed.2014). Similarly, it has been held that use of the term
" 'victim' is not the same as expressing an opinion that the defendant was guilty of a
crime; the term 'victim applies to anyone who suffers either as a result of ruthless design
or incidentally or accidentally.' " State v. Chism, Wash.App. No. 54895-6-I (Dec. 27,
2005), quoting Webster's Third New International Dictionary 2550 (1993).
{¶ 31} Courts in other jurisdictions have held that "[t]he term 'victim' is used
appropriately during trial when there is no doubt that a crime was committed and simply
the identity of the perpetrator is in issue." Jackson v. State, 600 A.2d 21, 24 (Del.1991).
See also In re Welfare of P.J.K., Minn.App. No. A15-0115 (Sept. 8, 2015) (where issue at
trial was not whether an armed robbery actually occurred but, rather, whether the state
No. 16AP-259 8
could prove beyond a reasonable doubt who committed it, occasional reference to
individual as "victim" was "accurate and not prejudicial").
{¶ 32} As noted above, most of the references to "victim" in the present case are in
the context of law enforcement officers recounting their role in the investigation. Courts
have observed that "the term 'victim,' to law enforcement officers, is a term of art
synonymous with 'complaining witness.' " Jackson at 24-25. Thus, courts have found a
lack of prejudice where a law enforcement officer uses the term "victim" in such a manner.
See State v. Frey, Iowa App. No. 7-205/06-1081 (June 27, 2007) (defense counsel not
ineffective in failing to object to use of the term victim where detective "used the term
'victim' as synonymous with the term 'complainant' "); see also State v. Wigg, 179 Vt. 65,
70 (2005) (finding harmless error where a law enforcement officer uses the term victim as
synonymous with complainant and "never expressed an opinion" that the defendant was
guilty); State v. Harvey, Wash.App. No. 29513-3-III (Mar. 29, 2012) (questions by
prosecutor that elicited police officers to refer to individuals shot as "victims" not
improper; "referring to the men who died from gunshot wounds as victims does not
amount to opinion testimony").
{¶ 33} Appellant relies on this court's decision in State v. Almedom, 10th Dist. No.
15AP-852, 2016-Ohio-1553, in support of his contention that reversible error occurred.
That case, however, is distinguishable from the facts of this case. At issue in Almedom
was whether a crime took place, i.e., whether the defendant had sexual conduct with girls
under the age of 13. Further, under the facts of Almedom, "the trial court judge
consistently referred to the girls as 'victims,' " which this court deemed analogous to
"telling the members of the jury that the girls were truthful when they claimed that sexual
abuse occurred." Id. at ¶ 2. By contrast, in the present case there was no dispute that A.S.
was physically assaulted and seriously injured, and the record contains no victim
references by the trial court.
{¶ 34} Here, where the fact of an assault was not in dispute, and where the
witnesses used the term "victim" as synonymous with complainant and did not express an
opinion as to appellant's guilt, the record does not show plain error as a result of the
references to "victim" during the testimony of law enforcement officers. See, e.g., Jackson
at 24-25; Wigg at 70. Nor is there any indication from the record that the prosecutor
intentionally sought to elicit prejudicial testimony from the witnesses at issue. Similarly,
No. 16AP-259 9
the several isolated instances in which the prosecutor referenced the term "victim," in
context, did not infer that appellant committed a crime against A.S. but, rather, reflected
the undisputed fact that A.S. suffered a harm. See Morock at ¶ 25. See also Agee v. State,
544 N.E.2d 157, 159 (Ind.1989) ("it cannot be said that the use of the word 'victim' by the
prosecutor on several occasions was done vindictively but was only an inadvertent
manner of speaking as might be done to characterize any person who had experienced a
mishap").
{¶ 35} Appellant also contends the prosecutor improperly vouched for the
credibility of A.S. during opening statement. Specifically, at issue are the following
comments by the prosecutor:
And what you're going to hear is that a woman named [A.S.] --
you'll meet her tomorrow -- she was walking I'm going to call
it home late at night. I'm using the word "home" loosely
because she's not a person who always has a home. She sleeps
where she can. She stays with people when she can. She's not
as stable as we all fortunately are lucky enough to be. But
she's going to be reliable. She's going to be credible. She's
going to be believable.
(Tr. Vol. I at 35.)
{¶ 36} In response, the state argues that the prosecutor was not suggesting the jury
should convict appellant because of the prosecutor's belief that A.S. was credible; rather,
the state maintains, the prosecutor was simply stating that the evidence would prove A.S.
to be a credible witness. Of significance, the state contends, was the fact the prosecutor
framed the comments in the future tense, i.e., A.S. "is going to be" reliable, credible, and
believable.
{¶ 37} Under Ohio law, "[i]t is improper for an attorney to express a personal belief
or opinion as to the credibility of a witness." State v. Jackson, 107 Ohio St. 3d 53, 2005-
Ohio-5981, ¶ 117. However, "[a] prosecutor's statement on witness credibility is not an
improper voucher where it neither implies knowledge of facts outside the record nor
places the prosecutor's personal credibility at issue." State v. Miller, 4th Dist. No.
06CA11, 2007-Ohio-427, ¶ 24, citing State v. Keene, 81 Ohio St. 3d 646, 666 (1998).
{¶ 38} On review, we do not construe the prosecutor's statements during opening
as expressing his own opinion as to the credibility of the witness or implying knowledge of
facts outside the record. As noted by the state, the phrasing employed, i.e., "going to be"
No. 16AP-259 10
reliable, etc., arguably indicates the prosecutor was anticipating, based on the evidence to
be presented, that the witness would prove to be credible.
{¶ 39} Even accepting the comments to be improper, however, we are unable to
conclude that the comments at issue affected the outcome of the trial. Here, considering
the record as a whole, the comments were isolated, and the trial court instructed the jury
that they "must not consider as evidence any statement of any attorney made during the
trial." (Tr. Vol. I at 30.) The trial court also informed the jurors: "[Y]ou have the sole and
exclusive duty to decide the credibility of witnesses. This means that it is you who must
decide whether to believe or disbelieve particular witnesses." (Tr. Vol. I at 31.) Finally,
the trial court instructed the jury that "opening statements are not evidence." (Tr. Vol. I
at 33.)
{¶ 40} Finding no plain error affecting appellant's substantial rights, the first
assignment of error is not well-taken and is overruled.
{¶ 41} Under his second assignment of error, appellant raises a claim of ineffective
assistance of counsel. Specifically, appellant contends his trial counsel was ineffective in
failing to object to comments by the prosecutor during opening statement vouching for
the complaining witness, and in failing to object to the prosecutor's repeated references to
that witness as a victim. Appellant also argues deficient performance by trial counsel in
failing to object to the introduction of hearsay testimony of the state's complaining
witness, and to the prosecutor's introduction of inflammatory testimony as to why A.S.
left the courtroom during the middle of her testimony.
{¶ 42} Under Ohio law, performance of trial counsel will not be deemed ineffective
unless and until such performance "is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel's performance."
State v. Bradley, 42 Ohio St. 3d 136 (1989), paragraph two of the syllabus. Further, in
order to show a defendant has been prejudiced by his or her counsel's deficient
performance, "the defendant must prove that there exists a reasonable probability that,
were it not for counsel's errors, the result of the trial would have been different." Id. at
paragraph three of the syllabus.
{¶ 43} Appellant's first two claimed instances of ineffective assistance of counsel
(i.e., trial counsel's failure to object to the prosecutor's remarks during opening statement,
and the failure to object to references to the term "victim" during the testimony of law
No. 16AP-259 11
enforcement officers) implicate issues previously addressed under the first assignment of
error in considering appellant's claims of prosecutorial misconduct. Having found that
the prosecutor did not improperly vouch for the witness during opening statement or that
such comments affected the outcome of the trial, appellant cannot demonstrate ineffective
assistance of counsel based on trial counsel's failure to object to those remarks.
{¶ 44} Similarly, in addressing appellant's claim of prosecutorial misconduct with
respect to references at trial to the complaining witness as a "victim," we found no plain
error. As noted, the majority of the references were in the context of law enforcement
officers referring to the complainant as a victim, and the evidence was undisputed that
A.S. suffered physical injury as a result of the incident. Under these circumstances,
counsel's failure to object did not constitute deficient performance. See Morock at ¶ 25
(where evidence showed individual suffered a wrong, trial counsel was not ineffective in
failing to challenge use of word "victim" by prosecutor and witness).
{¶ 45} Appellant also claims that his trial counsel was ineffective in failing to object
to inadmissible hearsay evidence; specifically, purported statements of A.S. made during
the testimony of Officer Gibson, the first officer dispatched to the scene. Appellant argues
that the prosecutor adduced testimony from the officer describing the substance of A.S.'s
allegations, i.e., that a male had forced her to the back of an unknown location, hit her
several times, and raped her. Appellant contends the statements were inadmissible
hearsay because the officer was testifying to out-of-court statements made by the
complaining witness to prove the truth of the matter asserted.
{¶ 46} In response, the state argues the officer's testimony was not offered to prove
that A.S.'s out-of-court statements were true but, rather, to explain the officer's conduct in
looking for evidence at the abandoned house and to reveal how the sexual assault squad
became involved in the investigation. The state further argues that, had an objection been
made, the state likely would have been able to establish the necessary foundation to admit
the statements as excited utterances of a rape victim.
{¶ 47} This court has previously noted that, to the extent a victim's statements are
offered to explain the conduct of an officer, such statements are "not admitted for the
truth of what the victim stated and are admissible." State v. Albert, 10th Dist. No. 06AP-
439, 2006-Ohio-6902, ¶ 60. See also State v. F.R., 10th Dist. No. 14AP-440, 2015-Ohio-
1914, ¶ 34 ("Generally, a police officer is permitted to testify as to the underlying reasons
No. 16AP-259 12
for his conduct in investigating a crime, and such statements are, by definition, not
hearsay."). Further, as noted by the state, the officer testified that A.S. was "visibly shaken
* * * crying, blood on her face" at the time. (Tr. Vol. I at 52.) Arguably, based on the
record presented, it is not clear that the trial court would have sustained an objection to
the testimony at issue. See, e.g., State v. Nixon, 12th Dist. No. CA2011-11-116, 2012-Ohio-
1292, ¶ 14 (where evidence indicated declarant "was shaken and scared" when she spoke
with officer shortly after officer arrived at scene, oral statement made to officer was
properly admissible as an excited utterance); State v. Johnson, 8th Dist. No. 81692, 2003-
Ohio-3241, ¶ 31 (finding that "both victims' statements were excited utterances" where
officers testified that these individuals were "visibly shaken and frightened" when police
arrived).
{¶ 48} Even assuming, however, that the trial court may have sustained objections
to the statements, appellant cannot demonstrate prejudice, i.e., that the outcome of the
trial would have been different. It has been noted that "hearsay is generally inadmissible
because the declarant is not testifying in court and the factfinder is unable to observe the
declarant and decide whether the declarant's statement is worthy of belief." State v.
Warren, 8th Dist. No. 83823, 2004-Ohio-5599, ¶ 44. In the instant case, both the officer
and declarant, A.S., testified at trial and A.S. was subject to cross-examination. See
Cleveland v. Arnold, 8th Dist. No. 98693, 2013-Ohio-1791, ¶ 20 (holding that, even had
defense counsel objected to officer's testimony as to what he learned through interview of
witness, outcome of trial would not have been different where same evidence defendant
claims of as being improper hearsay evidence was admitted properly through the actual
declarants at trial). See also State v. Bartolomeo, 10th Dist. No. 08AP-969, 2009-Ohio-
3086, ¶ 17 (appellant failed to demonstrate plain error regarding admission of alleged
hearsay testimony where declarant testified at trial "and her testimony, which during
direct examination was to the same effect as the officer's statements, was subject to cross-
examination").
{¶ 49} Appellant also contends his trial counsel was ineffective in failing to object
to the prosecutor's inquiry of A.S. as to why she abruptly left the courtroom during her
testimony. Appellant argues that the response by A.S. was irrelevant and inflammatory.
{¶ 50} By way of background, during the direct testimony of A.S., the record
indicates that A.S. addressed appellant and stated: "Can you please quit staring at me."
No. 16AP-259 13
The trial court immediately interjected and called for a five-minute recess. A.S.
responded: "Please. I'm going to be sick." The transcript reflects that A.S. "[ran] out of
the courtroom." (Tr. Vol. I at 110.) After A.S. returned to the courtroom, but outside the
presence of the jury, the trial court instructed the witness to not focus on appellant but,
instead, to focus on counsel and the questions being asked.
{¶ 51} The jury then returned to the courtroom and the prosecutor resumed the
direct examination of A.S. The prosecutor initially asked A.S. if she was "[f]eeling better,"
and A.S. responded "[a] little bit." In response to a further inquiry by the prosecutor, A.S.
related that she had run to the bathroom, and that she "[t]hrew up." (Tr. Vol. I at 114.)
{¶ 52} Appellant contends defense counsel should have objected at the onset of the
prosecutor's inquiry, or should have moved to limit such questioning before A.S. took the
stand. Appellant maintains that, having failed to do either, the jury was permitted to hear
emotionally charged testimony.
{¶ 53} On review, we do not find that counsel acted unreasonably in failing to
object to the inquiry by the prosecutor. As noted, the trial court immediately called a
recess to allow the witness to leave the room and compose herself, and the court
admonished the witness, upon returning to the courtroom, to focus on the questions of
counsel. Defense counsel may have deemed the actions by the trial court adequate under
the circumstances, and counsel may have made a tactical decision not to object to the
response of A.S. to avoid drawing further attention to the remark. We also note that the
trial court instructed the jury that their decision "must not be influenced * * * by
sympathy, prejudice, or passion towards any party, witness or attorney in this case." (Tr.
Vol. I at 30.) See, e.g., State v. Hill, 75 Ohio St. 3d 195, 205 (1995) (noting, in finding no
evidence that emotional outburst by victim's mother deprived defendant of fair trial, that
trial court "instructed the jury not to be influenced by sympathy or prejudice").
{¶ 54} Moreover, the record fails to suggest the brief exchange had any effect on
the verdict. See, e.g., State v. Greer, 8th Dist. No. 91983, 2009-Ohio-4228, ¶ 84 (defense
counsel not ineffective in failing to request mistrial following emotional outburst where
"no indication that the result of the trial would have been different had the jury not heard
[decedent's grandmother's] outburst"). Accordingly, having failed to demonstrate
deficient performance, or a reasonable probability that the outcome of the trial would
No. 16AP-259 14
have been different had counsel objected, appellant cannot prevail as to his claim of
ineffective assistance of counsel.
{¶ 55} Appellant's second assignment of error is overruled.
{¶ 56} Under his third assignment of error, appellant contends that cumulative
error resulted in an unfair trial. Specifically, appellant argues that prosecutorial
misconduct through vouching and saturating the trial with references to "victim," along
with defense counsel's ineffective performance, resulted in cumulative error. We
disagree.
{¶ 57} Pursuant to the doctrine of cumulative error, "a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of the constitutional
right to a fair trial even though each of the errors does not individually constitute cause
for reversal." State v. Pyles, 7th Dist. No. 13 MA 22, 2015-Ohio-5594, ¶ 103, citing State
v. Garner, 74 Ohio St. 3d 49, 64 (1995). However, the cumulative error doctrine "does not
apply to cases that are not marked by multiple instances of harmless error." State v.
Banks, 10th Dist. No. 03AP-1286, 2005-Ohio-1943, ¶ 23, citing Garner.
{¶ 58} We have previously found no plain error as a result of the prosecutor's
comments during opening statement or to "victim" references made at trial. Nor did we
find deficient performance or prejudice resulting from defense counsel's failure to object
to the testimony of Officer Gibson, or to the prosecutor's inquiry as to why A.S. abruptly
left the courtroom. Having found "no prejudicial error and no justification for the
invoking of plain error," there can be "no cumulative effect of errors that would warrant a
conclusion that defendant was denied a fair trial." State v. Blackmon, 10th Dist. No.
94APA05-773 (Feb. 14, 1995).
{¶ 59} Appellant's third assignment of error is not well-taken and is overruled.
{¶ 60} Based on the foregoing, appellant's three assignments are overruled, and
the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
BRUNNER and HORTON, JJ., concur.
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