State v. Gaffin

[Cite as State v. Gaffin, 2021-Ohio-2659.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 20CA1115
:
v. :
: DECISION AND JUDGMENT
KEVIN GAFFIN, : ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
William R. Gallagher, Elizabeth Conkin, Arenstein & Gallagher, Cincinnati,
Ohio, for Appellant.
D. Vincent Faris, Clermont County Prosecutor, Nick Horton, Scott O’Reilly,
Assistant Prosecuting Attorneys, Batavia, Ohio, for Appellee.
_____________________________________________________________
Smith, P. J.
{¶1} Kevin Gaffin appeals the Decision and Final Judgment Entry
Denying Petition for Postconviction Relief of the Adams County Common
Pleas Court, entered May 4, 2020. Gaffin asserts the trial court abused its
discretion by failing to adhere to the law of the case doctrine, in
contravention of this court’s decision in State v. Gaffin, 4th Dist. Adams No.
17CA1057, 2019-Ohio-291, affirmed in part and reversed in part. Gaffin
further asserts that the trial court failed to objectively review his petition and
Adams App. No. 20CA1115 2
the witnesses’ testimony, demonstrating bias, and thereby compromising the
integrity of the postconviction hearing and the court’s final decision on his
petition. Upon review, we find no merit to Appellant’s arguments.
Accordingly, we overrule the assignments of error and affirm the judgment
of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} Mr. Gaffin, “Appellant,” was indicted in 2015 on seven counts:
three counts of rape, R.C. 2907.02(A)(1)(b), each felonies of the first degree;
three counts of sexual battery, R.C. 2907.03(A)(5); each felonies of the
second degree, with specifications; and one count of felonious assault, R.C.
2903.11(A)(1), a felony of the second degree. The alleged victim was his
stepson, R.A. The underlying facts adduced at trial are set forth fully in
State v. Gaffin, 4th Dist. Adams No. 16CA1027, 2017-Ohio-2935, ¶¶ 4-15,
“Gaffin I.”
{¶3} Appellant filed a petition for postconviction relief which the trial
court dismissed without conducting an evidentiary hearing. Appellant
challenged the trial court’s dismissal of his petition in State v. Gaffin, 4th
Dist. Adams No. 17CA1057, 2019-Ohio-291, “Gaffin II.” In Gaffin II,
Appellant presented three assignments of error. First, Appellant asserted
that the trial court violated his right to due process under the United States
Adams App. No. 20CA1115 3
and Ohio Constitutions when it dismissed his postconviction petition
without conducting an evidentiary hearing. Next, Appellant asserted the
trial court violated his right to due process under the United States and Ohio
Constitutions when it dismissed his own affidavit attached to his petition as
self-serving and not credible. Finally, Appellant asserted that the trial court
violated his right to due process under the United States and Ohio
Constitutions when it denied his petition, as it contained a sufficient
constitutional claim of ineffective assistance of trial counsel and was
supported by adequate documentary evidence to warrant vacation of his
conviction and sentence.
{¶4} Upon review, we found the trial court did abuse its discretion in
dismissing Appellant’s petition without an evidentiary hearing.
Accordingly, we sustained the first assignment of error and the third
assignment of error in part. We overruled the second assignment of error.
{¶5} When resolving Appellant’s third assignment of error in
Gaffin II, we found as follows at ¶ 78:
After reviewing the eight listed affidavits, we find that
the trial court erred in finding that certain portions of
specific affidavits would have been inadmissible under
Evid.R. 608(B). Specifically, we find that the trial court
improperly found that the statements made in Decker’s,
Bowling’s, and Malott’s affidavits were inadmissible
Adams App. No. 20CA1115 4
under Evid.R. 608(B).1 (Emphasis added). Accordingly,
we find that this portion of Gaffin’s third assignment of
error is sustained in part and overruled in part.
{¶6} We further opined in Gaffin II at ¶ 88:
[I]n light of the admissible evidence Gaffin provided, we
find that there is a reasonable probability that the jury
would have returned a different verdict. Had the jury
heard the witnesses’ testimony, especially that of the two
officers from the Manchester Police Department, it is
reasonably likely that the outcome of the trial would have
been different.
{¶7} Finally, in Gaffin II at ¶ 90, we concluded:
Based on the foregoing reasons, we find that the trial
court abused its discretion in denying Gaffin’s petition
for postconviction relief without a hearing. Having
sustained Gaffin’s first assignment of error, * * * and
sustained in part his third assignment of error, we remand
the matter to the trial court to conduct an evidentiary
hearing on Gaffin’s postconviction relief consistent with
this opinion.
{¶8} Pursuant to this court’s mandate in Gaffin II, the trial court
conducted the evidentiary hearing on October 15, 2019. Appellant presented
the following witnesses: Tyler Cantrell, Appellant’s original trial attorney;
Jimmy Vaughn, Appellant’s friend; Mike Decker, Appellant’s friend and co-
worker; Officer Jeff Bowling; Officer Jason Malott; and Bruce England, a
former investigator with Adams County Children’s Services (ACCS). At the
1
In Gaffin II, we found at ¶ 57, that the testimony Jimmy Vaughn would have supplied would be
admissible. In Gaffin II at ¶ 61, we found that the testimony of Mike Decker would be inadmissible.
Therefore, we conclude herein that the trial court’s holding in ¶ 78 naming Decker instead of Vaughn is a
scrivener’s error.
Adams App. No. 20CA1115 5
conclusion of the hearing, the trial court ordered that a transcript of the
proceedings be prepared and filed. The parties also filed memoranda of their
closing arguments, pursuant to a briefing schedule order.
{¶9} Thereafter, in the May 4, 2020 entry, the trial court once again
overruled Appellant’s postconviction petition. This timely appeal followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL ABUSED ITS DISCRETION
WHEN IT REFUSED TO FOLLOW THE LAW
OF THE CASE, BY FINDING MR. GAFFIN DID
NOT PROVE HIS TRIAL COUNSEL FAILED
TO FUNCTION AS COUNSEL AS
GUARANTEED BY THE SIXTH
AMENDMENT, THEREBY VIOLATING MR.
GAFFIN’S CONSTITUTIONAL RIGHT TO
DUE PROCESS.
II. THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT REFUSED TO
FOLLOW THE LAW OF THE CASE, BY
FINDING MR. GAFFIN SUFFERED NO
PREJUDICE WHERE THE EVIDENCE
ADDUCED AT THE HEARING WAS
SUBSTANTIALLY THE SAME AS THE
AVERMENTS CONTAINED IN THE
AFFIDAVITS, THEREBY VIOLATING MR.
GAFFIN’S CONSTITUTIONAL RIGHT TO
DUE PROCESS.
III. THE TRIAL COURT DID NOT REVIEW MR.
GAFFIN’S PETITION, NOR THE WITNESSES’
TESTIMONY, OBJECTIVELY, THEREBY
COMPROMISING THE INTEGRITY OF THE
PROCEEDING AND DEPRIVING MR. GAFFIN
Adams App. No. 20CA1115 6
HIS CONSTITUTIONAL RIGHT TO DUE
PROCESS.
A. STANDARD OF REVIEW AND GUIDING PRINCIPLES
1. The postconviction relief process.
{¶10} The postconviction relief process is a collateral civil attack on
a criminal judgment rather than an appeal of the judgment. See State v.
Betts, 4th Dist. Vinton No. 18CA710, 2018-Ohio-2720, at ¶ 11; State v.
Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Postconviction
relief is not a constitutional right; instead, it is a narrow remedy that gives
the petitioner no more rights than those granted by statute. Id. It is a means
to resolve constitutional claims that cannot be addressed on direct appeal
because the evidence supporting the claims is not contained in the record.
See State v. McDougald, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-5080,
¶ 19-20, citing State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-
308, ¶ 18.
{¶11} “ ‘[A] trial court's decision granting or denying a
postconviction relief petition filed pursuant to R.C. 2953.21 should be
upheld absent an abuse of discretion; a reviewing court should not
overrule the trial court's finding on a petition for postconviction relief
that is supported by competent and credible evidence.’ ” Betts, supra,
at ¶ 12, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
Adams App. No. 20CA1115 7
6679, 860 N.E.2d 77, ¶ 58. A trial court abuses its discretion when its
decision is unreasonable, arbitrary, or unconscionable. See In re H.V.,
138 Ohio St.3d 408, 2014-Ohio-812, 7 N.E.3d 1173, ¶ 8.
{¶12} As indicated above, Appellant’s postconviction petition was
originally denied without a hearing. See Gaffin II, at ¶ 2. In Gaffin II, we
recognized that a petitioner seeking postconviction relief is not automatically
entitled to an evidentiary hearing. Id. at ¶ 22. See Betts, supra, at ¶ 13,
citing State v. Black, 4th Dist. Ross No. 15CA3509, 2016-Ohio-3104, ¶ 9,
citing State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999);
State v. Slagle, 4th Dist. Highland No. 11CA22, 2012-Ohio-1936, ¶ 13.
Rather, before granting a hearing on a petition, the trial court must first
determine that substantive grounds for relief exist. R.C. 2953.21(C).
“Substantive grounds for relief exist and a hearing is warranted if the
petitioner produces sufficient credible evidence that demonstrates the
petitioner suffered a violation of the petitioner's constitutional rights.” In re
B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶ 11.
Furthermore, in order to merit a hearing, the petitioner must show that the
claimed “errors resulted in prejudice.” Id., quoting Calhoun at 283.
2. Ineffective assistance of counsel claims within the context
of the postconviction process.
Adams App. No. 20CA1115 8
{¶13} The Second District recently considered the denial of a
postconviction petition raising four ineffective assistance of counsel claims
in State v. Crossley, 2d Dist. Clark No. 2020-CA-10, 2020-Ohio- 6640. In
considering Crossley’s first and second assignments of error, the appellate
court recognized the proper standard for analysis of ineffective assistance
claims as set forth in Strickland v. Washington, 104 S. Ct. 2052, 466 U.S.
668, 688 (1984):
To establish ineffective assistance of counsel, a
defendant must demonstrate both that trial counsel's
conduct fell below an objective standard of
reasonableness and that the errors were serious enough to
create a reasonable probability that, but for the errors, the
outcome of the case would have been different. (Internal
citations omitted.) See Crossley, at ¶ 25. Relevant to
Appellant’s current appeal, we note that: “ ‘In a petition
for postconviction relief, which asserts ineffective
assistance of counsel, the petitioner bears the initial
burden to submit evidentiary documents containing
sufficient operative facts to demonstrate the lack of
competent counsel and that the defense was prejudiced
by counsel's ineffectiveness.’ ” (Emphasis added.) State
v. Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983),
quoting State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d
819 (1980), syllabus.
See also State v. Crossley, supra, at ¶ 26, and State v. Wright, 4th
Dist. Washington No. 06CA18, 2006-Ohio-7100, at ¶ 20.2
3. The doctrine of res judicata.
2
In the context of a petition asserting ineffective assistance of counsel, “ ‘the petitioner bears the initial
burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of
competent counsel and that the defense was prejudiced by counsel’s ineffectiveness.’ ” Wright, supra, at
¶ 20, quoting Jackson at the syllabus.
Adams App. No. 20CA1115 9
{¶14} We are further mindful that under the doctrine of res judicata,
“ ‘ “[a] valid, final judgment rendered upon the merits bars all subsequent
actions based upon any claim arising out of the transaction or occurrence
that was the subject matter of the previous action.” ’ ” State v. Weber, 2d
Dist. Montgomery No. 28721, 2020-Ohio-4851, at ¶ 14, quoting State ex rel.
O'Malley v. Russo, 156 Ohio St.3d 548, 2019-Ohio-1698, 130 N.E.3d 256,
¶ 27, quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226,
(1995), syllabus. “ ‘[T]he doctrine serves to preclude a defendant who has
had his day in court from seeking a second on that same issue. In so doing,
res judicata promotes the principles of finality and judicial economy by
preventing endless relitigation of an issue on which a defendant has already
received a full and fair opportunity to be heard.’ ” (Citation omitted.)
Weber, supra, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245,
846 N.E.2d 824, ¶ 18.
{¶15} Accordingly, res judicata operates to bar claims that are raised
in successive petitions for postconviction relief when the trial court has
already ruled on the same claims in prior postconviction proceedings. See
Weber, supra, at ¶ 15; State v. Tucker, 2d Dist. Darke No. CA 1181, 1988
WL 38147, *3 (Apr. 18, 1988). “ * * * [I]f the claims brought in a second
petition for postconviction relief are ones that were or could have been
Adams App. No. 20CA1115 10
brought in an earlier petition for postconviction relief, a trial court does not
abuse its discretion in denying the second petition for postconviction relief
on the basis of res judicata.” (Citation omitted.) Weber, supra, quoting
State v. Finfrock, 2d Dist. Montgomery No. 16944, 1998 WL 726478, *5
(Oct. 16, 1998). Accord State v. Waver, 8th Dist. Cuyahoga No. 108820,
2020-Ohio-2724, ¶ 32. We note generally here, as we noted specifically in
Gaffin II at ¶ 41, that an appellant does not get a “second bite at the apple” in
a postconviction proceeding when presenting arguments previously raised in
a direct appeal.
4. Law of the case doctrine.
{¶16} Appellant’s first and second assignments of error in the current
appeal assert that the trial court failed to apply the “law of the case” doctrine
in considering the evidence at the hearing and denying his petition. Proper
application of the law of the case doctrine presents a question of law;
therefore, we apply a de novo review standard. See Giancola v. Azem, 153
Ohio St. 3d 594, 2018-Ohio-1694, 109 N.E.3d 1194, at ¶ 13; Arnott v.
Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 17. With
these principles in mind, we turn to consideration of Appellant’s first and
second assignments of error. Because the issues in these assignments of
error are interrelated, we will consider them jointly.
Adams App. No. 20CA1115 11
B. LEGAL ANALYSIS
1. Assignment of Error One: Did the trial court abuse its
discretion by failing to follow the law of the case and by
finding Appellant did not prove his trial counsel failed to
function as counsel?
{¶17} Appellant begins by observing that this court’s sole purpose in
remanding his petition for an evidentiary hearing was to allow him to further
develop the substance of his witnesses’ testimony and demonstrate how the
failure to call the witnesses at trial was prejudicial. However, Appellant
asserts that the issue of whether he received ineffective assistance of counsel
was decided in the affirmative by this court and has thus become the law of
the case. Appellant concludes that when the trial court found in the May 4,
2020 decision that Appellant did not prove deficient performance of his
counsel, the trial court failed to follow the law of the case and thereby
abused its discretion.
2. Assignment of Error Two: Did the trial court abuse its
discretion by failing to follow the law of the case and by
finding Appellant failed to demonstrate prejudice?
{¶18} Under the second assignment of error Appellant asserts that this
court definitively held that he received constitutionally ineffective assistance
of counsel. Furthermore, Appellant directs us to this court’s holding that
“we find that there is a reasonable probability that the jury would have
returned a different verdict.” Gaffin II, at ¶ 88. Therefore, Appellant
Adams App. No. 20CA1115 12
concludes that at the evidentiary hearing following remand, where the trial
court was confronted with substantially the same facts and issues as were
involved in the prior appeal, the court was bound to adhere to the appellate
court’s determination of the applicable law. In the May 4, 2020 decision,
the trial court found Appellant did not demonstrate prejudice from the trial
court’s decision to not allow Appellant’s postconviction hearing witnesses to
testify at the trial. Appellant contends that this was another instance of
failure to follow the law of the case doctrine and was also an abuse of the
court’s discretion.
{¶19} The law of the case doctrine has long existed in Ohio
jurisprudence. See Giancola, supra, 2018-Ohio-1694, 109 N.E.3d 1194, at
¶ 14. “ ‘The doctrine provides that the decision of a reviewing court in a
case remains the law of that case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels.’ ”
Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329,
¶ 15, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984).
“The * * * doctrine is necessary to ensure consistency of results in a case, to
avoid endless litigation by settling the issues, and to preserve the structure of
superior and inferior courts as designed by the Ohio Constitution.” Id.Adams App. No. 20CA1115 13
{¶20} Although the law of the case doctrine generally is “a rule of
practice rather than a binding rule of substantive law,” Nolan at 3, 462
N.E.2d 410, we have also explained that “the Ohio Constitution ‘does not
grant to a court of common pleas jurisdiction to review a prior mandate of a
court of appeals.’ ” Giancola, at ¶ 15; State ex rel. Cordray v. Marshall, 123
Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 32, quoting State ex rel.
Potain v. Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979). The
doctrine therefore “functions to compel trial courts to follow the mandates of
reviewing courts,” Nolan at 3, 462 N.E.2d 410, and “[a]bsent extraordinary
circumstances, such as an intervening decision by the Supreme Court, an
inferior court has no discretion to disregard the mandate of a superior court
in a prior appeal in the same case.” Id. at the syllabus. See Giancola, supra.{¶21} Accordingly, a trial court is without authority to extend or vary
the mandate issued by a superior court, and “where at a rehearing following
remand a trial court is confronted with substantially the same facts and
issues as were involved in the prior appeal, the court is bound to adhere to
the appellate court's determination of the applicable law.” Id. at 3, 462
N.E.2d 410, Giancola, supra, at ¶ 16. However, as the United States
Supreme Court has explained, “[t]he doctrine of law of the case comes into
play only with respect to issues previously determined,” Quern v. Jordan,
Adams App. No. 20CA1115 14
440 U.S. 332, 347, 99 S.Ct. 1139 (1979), fn. 18, and “ ‘[w]hile a mandate is
controlling as to matters within its compass, on the remand a lower court is
free as to other issues.’ ” Id., quoting Sprague v. Ticonic Natl. Bank, 307
U.S. 161, 168, 59 S.Ct. 777 (1939).
{¶22} Appellant’s argument is based upon the language used when
rendering our decision in Gaffin II. In Gaffin II, at ¶ 88, we wrote:
After reviewing the evidence, we find that Gaffin
established that he received constitutionally ineffective
assistance of counsel. First Gaffin showed that his trial
counsel’s performance fell below an objective level of
reasonable representation. * * * Here, Gaffin’s trial
counsel not only failed to call a majority of the witnesses
he subpoenaed, the affidavits show that he failed to
interview nearly ten of those individuals. * * * Second, in
light of the admissible evidence Gaffin provided, we find
that there is a reasonable probability that the jury would
have returned a different verdict. Had the jury heard the
witnesses’ testimony, especially that of the two officers
from the Manchester Police Department, it is reasonably
likely that the outcome of the trial would have been
different.
{¶23} Appellant raised the law of the case doctrine argument in the
post-evidentiary hearing briefing. The trial court, in its May 4, 2020
decision, began by addressing this argument. The trial court pointed out that
Appellant’s original assignment of error was that the court erred in
dismissing his petition without granting a hearing on the ineffective
assistance of counsel claim, and “not whether that was actually proven.”
Adams App. No. 20CA1115 15
(Emphasis added.) The trial court noted that if Appellant’s argument had
merit, then this appellate court would not have ruled as it did in Gaffin II at
¶ 90, that the error of the court was the failure to conduct the hearing and by
further remanding the case with the direction to conduct the evidentiary
hearing. “Rather, it would have granted the petition, reversed the
conviction, and remanded the case back to the trial court for further
proceedings including a new trial.”3 The trial court overruled the law of the
case claim. For the reasons which follow, we agree with the trial court’s
analysis.
{¶24} We quoted Crossley earlier at ¶ 13, in our discussion of a
petitioner’s “initial burden” when raising an ineffective assistance of counsel
claim. The language quoted by Crossley is from the Supreme Court of
Ohio’s decision in Jackson, which we also quoted at ¶ 13. Jackson
explicitly noted that this initial burden must be met before a hearing is
granted. (Emphasis added.)
{¶25} The language in Jackson and Crossley is admittedly more
precise than the language we utilized in Gaffin II. While in Gaffin II we
discussed the proper Strickland analysis at ¶ 83, we did not specifically
3
For example, see State v. Brant, 11th Dist. Portage no. 99-P-0037, 2000 WL 1114845 (Aug. 4. 2000). On
appeal of denial of postconviction petition after remand hearing, Brant’s assignment of error asserted that
trial court erred because Brant had stated a prima facie case of ineffective assistance of counsel. The 11th
District’s opinion explicitly found that counsel’s failure to call an available expert witness fell below the
objective standard of reasonable representation and also concluded counsel’s errors were prejudicial. The
judgment of the trial court was reversed and the matter remanded for a new trial.
Adams App. No. 20CA1115 16
discuss postconviction petitions in the context of ineffective assistance
claims, nor did we discuss the petitioner’s “initial burden” except in a
general manner relating to the determination of “substantive grounds for
relief.” Gaffin II at ¶ 82.
{¶26} However, it should be quite clear that Appellant faced only an
initial burden to establish sufficient operative facts to demonstrate both that
counsel’s assistance was deficient and that he was prejudiced by counsel’s
assistance in order to merit an evidentiary hearing.
{¶27} A similar law of the case argument as raised here by Appellant
was also considered in State v. Jones, 9th Dist. Summit No. 28063, 2019-
Ohio-289. Jones appealed the second denial of his petition for
postconviction relief claiming ineffective assistance after remand for an
evidentiary hearing. Jones asserted that under the “law of [the] case, defense
counsel’s performance was deficient.” Jones based his argument on a
statement in his prior appeal where the appellate court stated: “[i]f Mr.
Jones’s defense team did not do much mitigation investigation by the time
the trial started, they could not have formed an appropriate trial or mitigation
theory.” In resolving Jones’ appeal on this basis, the Ninth District noted:
Jones’s argument that this Court’s ‘if’ statement is law of
the case asks us to disassociate that statement not only
from the rest of the paragraph in which it is contained,
but also from our entire decision. Id. at ¶ 15.
Adams App. No. 20CA1115 17
{¶28} The Jones court concluded:
[T]he ‘if’ statement and the entire paragraph in which it
is contained are not necessary to the holding in Jones II
wherein we concluded that the trial court had improperly
denied Jones's petition for postconviction relief without
first holding a hearing. As such, the entire paragraph is
dicta intended to give guidance to the trial court upon
remand. ‘Dicta is not authoritative, and, by definition,
cannot be the binding law of the case.’ Gissiner v.
Cincinnati, 1st Dist. Hamilton No. C-070536, 2008-
Ohio-3161, ¶ 15. Accordingly, the law of the case
doctrine does not require us to conclude the defense
counsel's performance was deficient.
Id. at ¶ 16.
{¶29} As in Brant, supra, our decision in Gaffin II used language
which did not mention Appellant’s “initial burden” within the context of an
ineffective assistance of counsel claim. We found “that Gaffin established
that he received constitutionally ineffective assistance of counsel.” We also
found that “it is reasonably likely that the outcome of the trial would have
been different.” Id. at ¶ 88. However, we further found that “[b]ecause
Gaffin provided sufficient evidence in his petition for postconviction relief
to satisfy both prongs of an ineffective assistance of counsel claim, we find
that any rational court would have found substantive grounds for relief
existed and granted an evidentiary hearing.” Interpreting our decision as
having found the trial court found “ineffective assistance” to be the law of
Adams App. No. 20CA1115 18
the case going forward asks this court, as in Jones, to disassociate our
discussion from the final paragraph and disposition of Gaffin II, which
states: “Based on the foregoing reasons, we find that the trial court abused
its discretion in denying Gaffin’s petition for postconviction relief without a
hearing. * * * [W]e remand the matter to the trial court to conduct an
evidentiary hearing on Gaffin’s petition for postconviction relief consistent
with this opinion.” Id. at ¶ 90. If we intended to find as the law of the case
that Appellant had established his ineffective assistance claim, we would
have reversed the trial court’s judgment and remanded for a new trial, as the
court did in Brant, rather than remanding for the evidentiary hearing.
{¶30} It would have been preferable if our language in Gaffin II
utilized the more explicit language of Jackson, Wright, and Crossley in
discussing an appellant’s initial burden in asserting ineffective assistance of
counsel claims in the context of postconviction proceedings. However,
given our additional finding that “any rational trial court would have found
substantive grounds for relief existed and granted an evidentiary hearing,” it
is simply illogical at best or disingenuous at worst to conclude that our
decision in Gaffin II unequivocally found that Appellant established a prima
Adams App. No. 20CA1115 19
facie case of ineffective assistance of counsel and thus became the law of the
case.4 We find no merit to Appellant’s law of the case argument.
{¶31} Finally, under the first assignment of error, Appellant relies
solely on his argument that the law of the case doctrine applies to establish
deficiency, the first prong of his ineffective assistance claim. While
Appellant opens his brief by lengthy introduction of the background and
procedural posture of the case, as well as discussion of our decision in
Gaffin II, Appellant does not make additional argument regarding the
alleged deficiency of his trial counsel. We will not “further address this
‘undeveloped argument or assume Appellant’s duty and formulate the
argument for him.’ ” See State v. Dailey, 4th Dist. Adams No. 18CA1059,
2018-Ohio-4315, at ¶ 44, quoting State v. Palmer, 9th Dist. Summit No.
28303, 2017-Ohio-2639, at ¶ 33.5
4
We further observe that at the bottom of Page 10 of Appellant’s brief, Appellant argues: “The Fourth
District’s SOLE purpose in remanding the case for an evidentiary hearing was to allow Mr. Gaffin ‘to
further develop the substance of said witnesses’ testimony and demonstrate how the failure to call said
witnesses at trial was PREJUDICIAL.” Id. (Emphasis added). At no point in its decision did the Fourth
District state or suggest its finding Mr. Gaffin received ineffective assistance of counsel was up for
discussion.” First, here the brief inexplicably contradicts itself by having argued that both prongs of the
ineffective assistance of counsel claim, deficient performance and prejudice, were found by the Fourth
District, but somehow yet arguing that the matter was remanded to consider the issue of prejudice. Second,
the “id.,” citation seems to specifically reference this court’s remand instruction in Gaffin II at ¶ 88.
However, a closer reading demonstrates that the purported reference to Gaffin II at ¶ 88 is actually a
reference to another decision this court referenced in Gaffin II, State v. Erwin, 5th Dist. Licking No.
95CA82, 1996 WL 363815, *5 (June 10, 1996). This error is confusing in light of the same citation at the
bottom of page 16 which properly credits the Erwin case.
5
Under App.R. 16(A)(7), an appellant's brief shall include “[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.”
Appellate courts do not have any duty “to root out” an argument in support of an assignment of error.
Adams App. No. 20CA1115 20
{¶32} As to Appellant’s second assignment of error, again he relies
chiefly on his argument that the trial court failed to apply the law of the case
doctrine at the evidentiary hearing when the court declined to find Appellant
was prejudiced by his trial counsel’s representation. To some degree,
Appellant does recite the evidence presented at the hearing. However,
Appellant continues to base his argument on the trial court’s failure to apply
the law of the case doctrine, arguing as follows:
Each of Mr. Gaffin’s witnesses testified to substantially
the same facts as were contained in their affidavits. The
state’s cross-examination did not negate this. Where the
trial court was confronted with substantially the same
facts and issues as were involved in the prior appeal, the
court is bound to adhere to the appellate court’s
determination of the applicable law. Moreover, the trial
court is without authority to vary the mandate given.
(Internal citations omitted.) Despite the trial court’s
claim to the contrary, the Fourth District’s decision in
this case IS the law of the case, and the trial court was
obligated to give that decision effect in reaching its
decision regarding Mr. Gaffin’s Postconviction Petition.
{¶33} It is well established that, involving claims of ineffective
assistance of counsel, the “ ‘[f]ailure to establish either element is fatal to the
claim.’ ” State v. Bradford, 4th Dist. Adams No. 20CA1109, 2020-Ohio-
4563, at ¶ 17, quoting State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-
Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need not
Dailey, supra, at ¶ 43, quoting, Prokos v. Hines, 4th Dist. Athens Nos. 10CA51 and Athens Nos. 10CA57,
2014-Ohio-1415, at ¶ 55.
Adams App. No. 20CA1115 21
analyze both. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52(2000) (stating that a defendant's failure to satisfy one of the ineffective-
assistance-of-counsel elements “negates a court's need to consider the
other”).
{¶34} Consequently, in this case, having found Appellant’s claim that
his trial counsel’s performance was deficient as having no merit, we need
not consider whether Appellant was prejudiced by counsel’s representation.
{¶35} However, we would also emphasize that in this case, the
hearing took place on October 15, 2019. The trial court’s decision, a 24-
page document with findings of fact and conclusions of law, was rendered
May 4, 2020. This delay indicates the trial court carefully reviewed the
matter and took time to carefully analyze the issues presented. Notably, the
trial court’s decision states that the court ordered a transcript of the
proceedings and “carefully reviewed the transcript of the October 15th
hearing as well as the transcript of the trial” and also reviewed the “DVD
recording of the interview of R.A. at the Mayerson Center which was an
exhibit in the trial.” In the May 4th decision, the trial court set forth
summaries of his review of the witnesses whose testimony was most
relevant to the issues. We have likewise comprehensively reviewed the
record and the testimony of the witnesses at trial.
Adams App. No. 20CA1115 22
{¶36} In analyzing Appellant’s ineffective assistance claim in the
May 4, 2020 decision, the trial court discussed Appellant’s initial argument
that the trial court failed to adequately investigate those witnesses whose
names were given to him and who were subpoenaed for trial. However, the
trial court distinguished that at the evidentiary hearing, the evidence offered
through the witnesses called consisted solely of testimony thought to
impeach the testimony of R.A. and his mother Brianna. The trial court
found it necessary to evaluate the testimony together with all the evidence at
trial to determine if trial counsel’s performance was deficient or if it was
sound trial strategy. The trial court ultimately concluded that the trial
testimony and exhibits did not show that counsel’s decision against calling
other witnesses was not sound trial strategy.
{¶37} Our remand was specific. In Gaffin II, we found that the trial
court improperly applied Evid.R. 608(B) to find certain evidence
inadmissible. In Gaffin II, the trial court was mandated to conduct an
evidentiary hearing consistent with our opinion, and “[i]n light of the
admissible evidence Gaffin provided * * *, and especially that of the two
officers of the Manchester Police Department * * *.” Id at ¶ 88. As will be
discussed further in this opinion, the admissible testimony as outlined in
Gaffin II actually consisted of testimony from only three witnesses―Jimmy
Adams App. No. 20CA1115 23
Vaughn, Officer Bowling, and Officer Malott. In the May 4, 2020 decision,
the trial court discussed additional reasons for its finding these proffered
testimonies are inadmissible, and we will discuss these below as well. Even
if we had considered Appellant’s arguments in the first and second
assignments of error outside of the law of the case framework, we would
agree with the trial court’s conclusion that trial counsel’s performance was
not deficient and the above witnesses’ testimonies would not have changed
the outcome of the trial.
{¶38} Based on the foregoing, we find no merit to Appellant’s
first and second assignments of error. Accordingly, both assignments
of error are hereby overruled.
3. Assignment of Error Three: Did the trial court abuse its
discretion by failing to follow the law of the case by
denying Appellant the opportunity to develop the
substance of his witnesses’ testimony?
{¶39} Given our resolution of the first and second assignments of
error, the third assignment of error is arguably moot. However, in the
interests of justice we will consider Appellant’s arguments herein.
Appellant argues that despite his repeated requests to “develop the substance
of the witnesses’ testimony,” as ordered by the Fourth District, the trial court
refused. Appellant contends that the trial court constrained his ability to
develop the substance of his witnesses’ testimony as ordered by this court
Adams App. No. 20CA1115 24
when the trial court limited the witnesses to testimony provided in the
affidavits attached to Appellant’s petition. By doing so, Appellant argues
that the trial court refused to allow him to develop the testimony as ordered
by this court and thus abused its discretion by failing to follow the law of the
case.
{¶40} Before going further, we reiterate our explanation in Gaffin II,
at ¶ 23, regarding the trial court’s discretion in considering the credibility of
witnesses’ testimony in supporting affidavits:
In determining whether substantive grounds for relief
exist, a court must look at any supporting affidavits filed
by the defendant. R.C. 2953.21(C); In re B.C.S. at ¶ 12.
However, the court does not need to accept such
affidavits as true. Id., citing Calhoun at 284, 714 N.E.2d
905. A trial court should consider all relevant factors in
assessing the credibility of affidavit testimony. Calhoun
at 284-285, 714 N.E.2d 905. These factors include:
(1) Whether the judge reviewing the postconviction relief
petition also presided at the trial, (2) whether multiple
affidavits contain nearly identical language, or otherwise
appear to have been drafted by the same person, (3)
whether the affidavits contain or rely on hearsay, (4)
whether the affiants are relatives of the petitioner, or
otherwise interested in the success of the petitioner's
efforts, and (5) whether the affidavits contradict evidence
proffered by the defense at trial. Moreover, a trial court
may find sworn testimony in an affidavit to be
contradicted by evidence in the record by the same
witness, or to be internally inconsistent, thereby
weakening the credibility of that testimony. Id. at 285,
citing State v. Moore, 99 Ohio App.3d 748, 754-756, 651
N.E.2d 1319 (1st Dist.1994). “Depending on the record,
Adams App. No. 20CA1115 25
one or more of these or other factors may be sufficient to
justify the conclusion that an affidavit asserting
information outside the record lacks credibility.” Id. at
285, 714 N.E.2d 905.
{¶41} Furthermore, before considering Appellant’s argument, a
review of our discussion of the proposed witnesses’ testimony and a
clarification of our decision in Gaffin II is necessary. Appellant’s third
assignment of error in Gaffin II was set forth at ¶ 19 as follows:
THE TRIAL COURT VIOLATED MR. GAFFIN’S
RIGHT TO DUE PROESS UNDER THE OHIO AND
UNITED STATES’ CONSTITUTIONS WHEN IT
DENIED THE PETITION AS THE PETITION
STATED SUFFICIENT CONSTITUTIONAL CLAIMS
AND WAS SUPPORTED BY ADEQUATE
DOCUMENTARY EVIDENCE TO WARRANT
VACATION OF THE CONVICTION AND
SENTENCE.
{¶42} In Gaffin II, we began consideration of Appellant’s third
assignment of error at ¶ 44. We construed Appellant’s assignment of error
as arguing that “the trial court erred in finding that, under Evid.R. 608(B),
witnesses, whose affidavits referred to specific instances of conduct would
be prohibited from testifying regarding such acts.” Appellant contended that
the trial court applied the wrong rule of evidence and asserted that the
proposed testimony was permissible under Evid.R. 613(C). In Gaffin II, we
set forth Evid.R. 608(B) as follows at ¶ 46:
Adams App. No. 20CA1115 26
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’s character
for truthfulness, other than conviction of crime as
provided in Evid.R. 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the
court, if clearly probative of truthfulness or
untruthfulness, be inquired into upon cross-examination
of the witness (1) concerning the witness’s character for
truthfulness or untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness of another
witness as to the character the witness being cross-
examined has testified.
{¶43} In Gaffin II, we further discussed another method by
which a party may impeach a witness pursuant to Evid.R. 613(C). At
¶ 48, we set forth the rule as follows:
During examination of a witness, conduct of the witness
inconsistent with the witness’s testimony may be shown
to impeach. If offered for the sole purpose of impeaching
the witness’s testimony, extrinsic evidence of the prior
inconsistent conduct is admissible under the same
circumstances as provided for prior inconsistent
statements by Evid. R. 613(B)(2).
{¶44} Importantly, in our decision in Gaffin II, we observed that the
trial court listed eight witnesses whose affidavits contained statements that
referred to specific instances of conduct by R.A. or his mother: Tyler
Cantrell, Jimmy Vaughn, Mike Decker, Paula Gaffin, Brian Rau, Jeffrey
Bowling, Jason Malott, and Josie Frances. Id. at ¶ 49. We reviewed each
affidavit thoroughly and found the trial court correctly ruled as inadmissible
the proposed testimony of Tyler Cantrell, Mike Decker, Paula Gaffin, Brian
Adams App. No. 20CA1115 27
Rau, and Josie Frances. See ¶¶ 52-77. However, as previously discussed at
¶ 5, we also noted that in Gaffin II, “the trial court improperly found that
statements made in Decker’s, Bowling’s, and Mallott’s affidavits were
inadmissible under Evid.R. 608(B).” (Emphasis added.) Id. at ¶ 78. This
language is inexplicable as it relates to Mike Decker’s testimony. We
discussed his affidavit at length in Gaffin II at ¶¶ 59-61. At ¶ 61, we found:
[T]he trial court properly found that Decker’s statement
about R.A.’s mother’s drinking habits was inadmissible
under Evid.R. 608(B). Regarding Decker’s statement
about the hunting trip, we find that the trial court did not
abuse its discretion in finding this portion of Decker’s
affidavit inadmissible for being remote.
{¶45} Our finding at ¶ 78 is also set forth erroneously in that we
discussed Jimmy Vaughn’s testimony at length at ¶¶ 55-58. We concluded
at ¶ 58:
R.A.’s mother testified regarding the events that occurred
on Thanksgiving Day 2012, which she stated triggered
the end of her marriage to Gaffin. * * * Vaughn could
have been called to contest R.A.’s mother’s ability to
remember the events of that day. Therefore, we find that
this portion of Vaughn’s statement was admissible under
Evid.R. 613(C) and Evid.R. 616(B).
{¶46} Thus, closer review of Gaffin II reveals that we specifically
found Decker’s testimony inadmissible and Vaughn’s testimony admissible.
Again, this is a scrivener’s error. Our finding in Gaffin II at ¶ 78 should
have concluded that “the trial court improperly found that the statements
Adams App. No. 20CA1115 28
made in Vaughn’s, Bowling’s, and Malott’s affidavits were inadmissible * *
*.” (Emphasis added.)
{¶47} Turning to Appellant’s argument under the third assignment of
error in the current appeal, Appellant cites the transcript of the evidentiary
hearing at pages 8, 18, 47-50, 71, 97-98, and 159-166. The citations to these
pages reference the following proposed witnesses: Braxton Gaffin, Tyler
Cantrell, Mike Decker, and Officer Malott. We discuss these separately.
a. Braxton Gaffin
{¶48} The citations to the transcript at pages 8 and 159-166 concern
the testimony and proffered testimony with regard to Appellant’s son,
Braxton Gaffin. Braxton testified he gave Attorney Haslam, his father’s trial
counsel, a flash drive and DVD containing photos and a video of R.A. with
Mr. Gaffin. At the end of the evidentiary hearing, Appellant’s counsel
called Braxton Gafffin to provide a proffer. When Braxton Gaffin was
called, the State objected as “going outside of the Fourth District’s opinion.”
The trial court agreed and sustained the State’s objection. In the May 4,
2020 decision, the trial court found: “[T]he testimony of one witness,
Braxton Gaffin, was excluded by the court based upon its prior ruling on the
postconviction relief petition and the appellate court’s decision.”
Adams App. No. 20CA1115 29
{¶49} We agree. We find the trial court did not abuse its discretion in
excluding Braxton Gaffin’s testimony. Our discussion in Gaffin II regarding
the exclusion of certain witnesses did not include any discussion regarding
Braxton Gaffin. Braxton Gaffin’s testimony was not raised as an issue in
Gaffin II and is now barred by the doctrine of res judicata. In Gaffin II, at
¶ 78, we found the trial court erred in excluding the statements made in
Decker’s, (should have said Vaughn’s), Bowling’s, and Malott’s affidavits.
Our remand at ¶ 90 to conduct an evidentiary hearing consistent with this
opinion could not be reasonably read to have instructed the court to consider
any affidavit or testimony of Braxton Gaffin. Any argument with regard to
Braxton Gaffin’s proposed testimony is appropriately barred by res judicata
and we need not consider it.
b. Tyler Cantrell
{¶50} Concerning Attorney Cantrell’s testimony, Appellant also cites
to the transcript of the evidentiary hearing at pages 18, 47-50. Cantrell also
testified to receiving a video showing R.A. on an overnight hunting trip with
Mr. Gaffin after the alleged sexual assaults. The video evidence was also
proffered at pages 47-50.
{¶51} Attorney Cantrell represented Appellant in his divorce from
Adams App. No. 20CA1115 30
R.A.’s mother. The trial court refused to allow Mr. Cantrell to testify that,
contrary to the trial testimony of R.A.’s mother, she never alleged any acts
of domestic violence or sexual assault during the divorce proceedings.
Appellant asserts that if this information was used only to cross-examine
R.A.’s mother, it would have impeached her credibility on a critical issue in
the case.
{¶52} In Gaffin II, this court discussed the proposed testimony from
Attorney Cantrell at ¶ 52. In his affidavit, Cantrell had averred that he
reviewed a video of R.A. in a tree stand sleeping; that he was led to believe
the video was recorded on a trip approved by Brianna and after the alleged
assaults were committed. According to Cantrell, the video demonstrated
how comfortable R.A. was being alone with Appellant and how comfortable
R.A.’s mother was with allowing it. The trial court found Cantrell’s
statements inadmissible because they were based upon statements of others
that were clearly hearsay. In Gaffin II, this court agreed. Id. at ¶ 54.
{¶53} Appellant pursues a different argument in this appeal.
Appellant argues the trial court refused to allow Mr. Cantrell to testify that
contrary to the trial testimony of R.A.’s mother, she never alleged any acts
of domestic violence or sexual assault during the divorce proceedings.
Adams App. No. 20CA1115 31
Appellant contends this information would have impeached R.A.’s mother
on a critical issue.
{¶54} Our review indicates however that while Appellant alluded to
this potential testimony in his own affidavit attached to his postconviction
petition at ¶ 27, the issue regarding the absence of allegations of domestic
violence or sexual assault being asserted in the divorce proceedings was not
raised in Gaffin II, as it obviously was known to Appellant and could have
been raised in the prior appeal. As we noted in Gaffin II and herein, res
judicata applies to proceedings involving postconviction relief. Id. at ¶ 24,
citing State v. Szefck, 77 Ohio St. 3d 93, 95, 671 N.E. 2d 233 (1996). Thus,
res judicata prevents us from considering Attorney Cantrell’s proposed
testimony on this issue herein.
c. Mike Decker
{¶55} Appellant’s reference to page 71 of the evidentiary hearing
transcript concerns the testimony of Mike Decker. Here, despite our
confusing language at ¶ 78 in Gaffin II, we previously had found at ¶61:
Extrinsic evidence that serves no purpose other than to
attack the credibility of a witness is inadmissible under
Evid.R. 608(B) and Evid.R. 613(C). Therefore, we find
that the trial court properly found that Decker’s statement
about R.A.’s mother’s drinking habits was inadmissible
under Evid.R. 608(B). Regarding Decker’s statement
about the hunting trip, we find that the trial court did not
Adams App. No. 20CA1115 32
abuse its discretion in finding this portion of Decker’s
affidavit inadmissible for being remote.
{¶56} Again, while it is unfortunate that our language in Gaffin II at
¶ 78 caused confusion, our language previously at ¶ 61 clearly analyzed Mr.
Decker’s testimony and found that the trial court properly excluded it. As
with Attorney Cantrell’s testimony, any issue with regard to Mr. Decker’s
proffered testimony at the evidentiary hearing is now barred by res judicata
in this appeal.
d. Officer Malott
{¶57} Finally, the reference to pages 97-98 of the evidentiary hearing
transcript relates to the testimony of Officer Malott, formerly of the
Manchester Police Department in Adams County. At the evidentiary
hearing, Officer Malott testified to an incident in 2012 where R.A.’s mother
said she would do “whatever it took to get Mr. Gaffin arrested.” While
responding to the same incident, according to Officer Malott, R.A. said he
wanted to go with Mr. Gaffin, who was in the process of leaving the home.
The Fourth District found this testimony admissible to impeach the
credibility of both R.A. and his mother. Gaffin II at ¶ 74.
{¶58} Appellant asserts that at the evidentiary hearing, the trial court
prevented him from developing this testimony and improperly discounted it
Adams App. No. 20CA1115 33
because Officer Malott also admitted abuse victims could still have
attachment to their alleged abuser.
{¶59} After hearing the proposed testimony at the evidentiary
hearing, in the May 4, 2020 decision, the trial court found as follows:
[T]he testimony of Jason Malott that in August of 2012
Brianna told him that she would do anything to get
Defendant arrested because of a dispute over property is
of little import. This incident occurred prior to the
Defendant’s assault of [R.A.] on Thanksgiving Day of
2012. * * * This was over two year prior to the disclosure
of the sexual abuse by R.A. and there is no testimony that
this disclosure was tied in any way to the earlier
statement about having Defendant arrested. If Brianna
was determined to have the Defendant arrested in August
of 2012, she had ample opportunity to do so on
Thanksgiving Day * * *. R.A.’s disclosure of sexual
abuse occurred in February of 2015. * * * The Defendant
provided no evidence in the evidentiary hearing that
Brianna had been continuously making this threat. * * *
The testimony of such a remote comment would not have
changed the outcome of this case.
{¶60} Furthermore, in the May 4, 2020 decision, the trial
court found:
Michael Decker, Jason Malott, and Jeff Bowling’s
testimony would have been that R.A. did not act afraid of
the Defendant when they observed him. It is important to
remember that the sexual assaults occurred in May and
December of 2008 when R.A. was six years of age. * * *
Had the testimony of Decker, Vaugh, Malott and
Bowling been presented by trial counsel, it actually could
have strengthened the state’s case because of the
testimony of Dr. Connor regarding child accommodation
syndrome and the behavior of child victims towards their
Adams App. No. 20CA1115 34
abuser showing connection or affection for their [sic]
them despite being victimized. As noted there is no
evidence before the Court that the Defendant’s trial
counsel’s decision not to call these witnesses was not a
sound trial strategy as trial counsel was not called as a
witness at the evidentiary hearing. * * * The testimony of
Jimmy Vaughn, Michael Decker, Jason Malott and Jeff
Bowling about the behavior of R.A. could actually have
strengthened the state’s case because it was exactly what
Dr. Connor described in his testimony. Further, there
was already evidence in the trial record * * * that R.A.
continued to do things with the Defendant after the
assaults. Their testimony on this issue would have been
cumulative.
{¶61} Our review of the May 4, 2020 entry also reveals the trial
court’s observation that Officer Malott had no copy of his report about the
incident. In the evidentiary hearing, the trial court was within its discretion
to determine the credibility of Officer Malott’s testimony. Also, it appears
that the trial court allowed Appellant to develop the testimony of Officer
Malott but ultimately found the testimony to be remote, irrelevant, or
cumulative. Furthermore, the trial court analyzed Officer Malott’s testimony
in the context of possible reasonable trial court strategy and found it was
sound trial strategy not to call a witness that would have strengthened the
State’s expert witness.
{¶62} The trial court heard testimony from Officer Malott, analyzed
it, and discounted it for legitimate and articulable reasons. The trial court
further analyzed the evidence in light of its effect on Appellant’s ineffective
Adams App. No. 20CA1115 35
assistance claim, finding that it was reasonable trial strategy to exclude
testimony that would corroborate that of a State’s witness and that any
impeachment value as pertained to Brianna Wisecup would not have
changed the outcome of the trial. The trial court’s ruling was not arbitrary.
We find the trial court did not abuse its discretion with regard to the
development of Officer Malott’s testimony.
{¶63} For the foregoing reasons, we find no merit to Appellant’s third
assignment of error. Officer Malott’s testimony was properly considered.
The doctrine of res judicata applies to bar our review of the proffered
testimony of Braxton Gaffin, Tyler Cantrell, and Mike Decker.
Accordingly, the third assignment of error is overruled.
4. Assignment of Error Four: Did the trial court fail to
review Appellant’s petition and the witnesses’
testimony objectively?
{¶64} “ ‘ “Judicial bias has been described as a hostile feeling or spirit
of ill will or undue friendship or favoritism toward one of the litigants or his
attorney, with the formation of a fixed anticipatory judgment on the part of
the judge, as contradistinguished from an open state of mind which will be
governed by the law and the facts.” ’ ” Citibank v. Hine, 2019-Ohio-464,
130 N.E.3d 924, at ¶ 124 (4th Dist.), quoting State v. Gerald, 4th Dist.
Scioto No. 12CA3519, 2014-Ohio-3629, at ¶ 51, quoting State ex rel. Pratt
Adams App. No. 20CA1115 36
v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of
the syllabus. In Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147(1994), the Supreme Court held that “opinions formed by the judge on the
basis of facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or antagonism
that would make fair judgment impossible. Thus, judicial remarks during
the course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge.” On the other hand, “ ‘[t]hey may do so [support a bias
challenge] if they reveal an opinion that derives from an extrajudicial source;
and they will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.’ ” (Emphasis sic.) Id.Culp v. Olukoga, 2013-Ohio-5211, 3 N.E.3d 724 (4th Dist.), at ¶ 55; quoting
State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶¶ 47-
48. Further, as we noted in Culp at ¶ 55:
A trial judge is presumed not to be biased or prejudiced,
and the party alleging bias or prejudice must set forth
evidence to overcome the presumption of integrity.
Corradi v. Emmco Corp. (Feb. 15, 1996), 8th Dist.
Cuyahoga No. 67407, 1996 WL 65822 [at 3] citing State
v. Wagner, 80 Ohio App.3d 88, 93, 608 N.E.2d 852 (12th
Dist. 1992); citing State v. Richard, 8th Dist. Cuyahoga
No. 61524, 1991 WL 261331 (Dec. 5, 1991). “Bias
Adams App. No. 20CA1115 37
against a party is difficult to question unless the judge
specifically verbalizes personal bias or prejudice toward
a party. See In re Adoption of Reams, 52 Ohio App.3d
52, 59, 557 N.E.2d 159 (10th Dist. 1989).” Frank Novak
& Sons, Inc. v. Brantley, Inc., 8th Dist. Cuyahoga No.
77823, 2001 WL 303716 (Mar. 29, 2001) [.]
See Hine, supra, at ¶ 125.
{¶65} Under the final assignment of error, Appellant contends that the
trial court’s demeanor during all phases of presenting his petition, as well as
the tone in the court’s decisions suggest an unfavorable predisposition
indicating an inability to impartially determine the facts. Appellant points to
the court’s comments regarding witnesses’ credibility, and particularly that
of Officer Bowling, and argues that the trial court wrongly “took it upon
itself” to judge credibility of the witnesses at the hearing. Appellant
concludes that the trial court’s comments demonstrated bias and a
predetermined point of view which clouded the court’s ability to objectively
apply the law, thus compromising the integrity of the proceedings.
{¶66} As set forth above at ¶ 39, the trial court was well within its
discretion to consider the credibility of the witnesses who testified at the
evidentiary hearing. Again, we will review separately Appellant’s
arguments and the proposed testimony of the witnesses, our mandate from
Gaffin II, and the trial court’s rulings.
a. Witness Cantrell
Adams App. No. 20CA1115 38
{¶67} As discussed earlier in this opinion, the issue of Attorney
Cantrell’s testimony was considered by this court in Gaffin II. Any
argument raised with regard to his testimony in this appeal is now barred by
res judicata.
b. Witness Vaughn
{¶68} Appellant asserts that this court held Mr. Vaughn’s
testimony would have contested the credibility of R.A. and his mother as to
what happened on Thanksgiving 2012. The trial court disagreed, stating his
testimony was not impeaching. It further discounted its relevance by saying
Mr. Vaughn’s testimony was cumulative.
{¶69} In Gaffin II, we considered Mr. Vaughn’s affidavit, in which he
averred that in 2012 he had Thanksgiving dinner with Gaffin and R.A., and
according to Vaughn, Brianna was “too drunk to join them.” The trial court
previously found this testimony inadmissible under Evid.R. 608(B). This
court disagreed, finding that Evid.R. 616(B) permitted attacking the
credibility of testimony through evidence of a witness’s intoxication at the
time of the matter which the witness seeks to testify. Id. at ¶ 57. We held:
“Vaughn could have been called to contest R.A.’s mother’s ability to
remember the events of that day.” Id. at ¶ 58. Therefore, on remand, the
Adams App. No. 20CA1115 39
trial court’s mandate was to develop this possible testimony. Our review
demonstrates Appellant was allowed to do so.
{¶70} In the May 4, 2020 decision, the trial court wrote:
Mr. Vaughn had been invited to spend Thanksgiving with
Defendant and to go hunting. He testified that he arrived
at the house in the afternoon. * * * He testified that
Brianna did not eat Thanksgiving dinner with them and
that he observed her stumble on her way to the bathroom
and then saw her passed out in the bathroom which
caused him to conclude that she was intoxicated.
The Defendant asserts that this testimony impeaches the
testimony of Brianna * * * as to what occurred on that
weekend. At the trial, Brianna testified that while she
was cooking on Thanksgiving Day of 2012, that the
Defendant asked her to have R.A. get some things out of
their Suburban. R.A. was asleep so she woke him to do
that. After R.A. came back into the house and went to
his room, she saw Defendant grab R.A. by the throat and
carry him out of the house. * * * The testimony of Mr.
Vaughn did not contradict the testimony of Brianna
Wisecup as to what had happened since he did not arrive
until the afternoon. His testimony simply showed that
he did not observe any violence by the Defendant * * *.
The testimony that Brianna was intoxicated later that
afternoon does not impeach or contradict her testimony
as there is no indication that she was drinking or
intoxicated when the Defendant grabbed R.A by the
throat before the arrival of Mr. Vaughn.
{¶71} Having heard the fully developed testimony, the trial court
found that Mr. Vaughn was not present until later in the afternoon so his
testimony did not “actually impeach the testimony of either Brianna or R.A.”
This ruling is not inconsistent with our finding that Vaughn’s testimony
Adams App. No. 20CA1115 40
would be admissible if, pursuant to Evid.R. 616(B), it related to the
witness’s intoxication at the time of the matter which the witness seeks to
testify. (Emphasis added.) Gaffin II, at ¶ 57. (Internal citations omitted.)
We fail to see how the trial court’s ruling is suggestive of judicial bias.
c. Witness Decker
{¶72} Again, in this appeal, any issues with regard to Mr.
Decker’s testimony are barred by the doctrine of res judicata.
d. Witness Malott
{¶73} As discussed above in the third assignment of error, the trial
court did not abuse its discretion with regard to its ultimate rulings on
Officer Malott’s testimony. The trial court’s ruling was well-reasoned and
was not an abuse of discretion. Therefore, we do not view the trial court’s
ruling as indicative of judicial bias.
e. Witness England
{¶74} Appellant argues that at the evidentiary hearing, Mr. England, a
former investigator with the ACCS, recounted in great detail the absence of
any evidence to substantiate the 2008 allegation of sexual abuse against Mr.
Gaffin. Appellant contends that the trial court skimmed over the most
important details (R.A.’s multiple denials of any abuse, his mother’s denial
of any violence in the home, his mother’s accusation against her own family
Adams App. No. 20CA1115 41
for making this claim to break up her and Mr. Gaffin, and R.A.’s
identification of Mr. Gaffin as someone to whom he could report
inappropriate conduct) which could have been used to impeach both R.A.
and his mother. Appellant concludes the trial court’s findings regarding Mr.
England is further evidence of judicial bias.
{¶75} However, our review of Gaffin II at ¶ 44 reveals that the issue
of Mr. England’s possible impeachment testimony was not raised in Gaffin
II when it should and could have been. Our remand is specific. Appellant
did not raise this argument in Gaffin II, and res judicata prevents us from
considering it now.
f. Witness Bowling
{¶76} Like Officer Malott, Officer Bowling testified he responded in
2014 to a call from R.A.’s mother that R.A. was missing. Officer Bowling
found R.A. with Mr. Gaffin. When Officer Bowling told R.A. that he had to
go home, R.A. said he wanted to stay with Mr. Gaffin. Appellant asserts
that, given R.A.’s trial testimony that he was always afraid of Mr. Gaffin,
and that the state used this to explain why R.A. delayed reporting the alleged
assaults, the Fourth District found this testimony “does more than attack
R.A.’s testimony.”
Adams App. No. 20CA1115 42
{¶77} In Gaffin II, we found that “[b]ecause R.A.’s delayed reporting
is a fact of consequence to the action, the subject matter of Bowling’s
statement * * * would have been admissible under Evid.R. 613(C) and
Evid.R. 613(B)(2)(a).” Id. at ¶ 70. We further found that “no rational trial
court could find this evidence remote in light of the victim’s delayed
reporting.” Id. at ¶ 71. Appellant contends that this time the trial court
discounted the witness’s testimony because it was not credible.
{¶78} In the trial court’s May 4, 2020 decision, the court wrote:
During cross examination, Officer Bowling admitted that
he had made postings on his Facebook page that were
critical of the Adams County justice system and
supportive of Defendant. These comments strongly
suggest that he has a strong bias in favor of the
Defendant and against Brianna Wisecup. His demeanor
during his testimony on cross-examination was very
defensive and evasive particularly as to his postings
about the case on Facebook. Consequently, the Court
does not find his testimony to be credible.
{¶79} Once again, the trial court was in the best position to determine
the credibility of the witnesses. The court found Officer Bowling’s
credibility to be lacking. Credibility determinations being within the
province of the trial court, again we fail to find the court exhibited judicial
bias with regard to this ruling.
{¶80} Judges’ rulings of law are legal issues, subject to appeal, and
are not by themselves evidence of bias or prejudice. See Hine, supra, at
Adams App. No. 20CA1115 43
¶ 129, citing Cooke v. United Dairy Farmers, 10th Dist. Franklin No. 05-
AP1307, 2006-Ohio- 4365, at ¶ 45, citing Okocha v. Fehrenbacher, 101
Ohio App.3d 309, 322, 655 N.E.2d 744 (8th Dist.1995). Judge Coss’s
rulings at the evidentiary hearing do not constitute evidence that the trial
court was prejudiced or biased.
{¶81} Moreover, the Supreme Court of Ohio has held that an
appellate court has no jurisdiction to vacate a trial court's judgment based on
a claim of judicial bias. See Hine, supra, at ¶ 126; Cooke, supra, citing Beer
v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978). The
remedy for suspected judicial bias is to file an affidavit of prejudice with the
clerk of the Supreme Court of Ohio. See Polivka v. Cox, 10th Dist. Franklin
No. 02AP-1364, 2003-Ohio-4371. R.C. 2701.03 “provides the exclusive
means by which a litigant may claim that a common pleas judge is biased
and prejudiced.” See Jones v. Billingham, 105 Ohio App.3d 8, 11, 663
N.E.2d 657 (2nd Dist.1995). Only the Chief Justice of the Supreme Court of
Ohio or his designee has the authority to determine a claim that a common
pleas court judge is biased or prejudiced. See Beer, supra, 377 N.E.2d 775.
Thus, an appellate court is without authority to pass upon issues of
disqualification or to void a judgment on the basis that a judge should be
disqualified for bias or prejudice. Id.; State v. Ramos, 88 Ohio App.3d 394,
Adams App. No. 20CA1115 44
398, 623 N.E.2d 1336 (11th Dist.1993). Accordingly, we find no merit to
Appellant’s fourth assignment of error and it is hereby overruled.
CONCLUSION
{¶82} Based on the foregoing, we find no merit to Appellant’s four
assignments of error. Despite the confusing language in Gaffin II, we find it
incredible that Appellant would seriously argue that the law of the case
doctrine left the trial court no discretion to rule on the affidavits and
testimony proffered and admitted into evidence at the remand hearing. We
further find the trial court did not abuse its discretion when it conducted the
evidentiary hearing and made its well-reasoned evidentiary rulings. We also
find that Appellant failed to avail himself of the proper statutory procedure
for challenging a judge on the basis of judicial bias. Even so, having
reviewed the evidentiary hearing transcript, we do not view the trial court’s
rulings as suggestive of bias. Appellant’s assignments of errors are without
merit and are hereby overruled. The judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Adams App. No. 20CA1115 45
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Adams County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed 60 days upon the bail previously posted. The purpose of a continued
stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the
expiration of the 60-day period, or the failure of the Appellant to file a notice
of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior
to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
Adams App. No. 20CA1115 46
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J., concur in Judgment and Opinion.
For the Court,
______________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.