[Cite as State v. Hoseclaw,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-12-31

v.

CLINTON A. HOSECLAW, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR2011 0415

Judgment Affirmed

Date of Decision: August 12, 2013

APPEARANCES:

Christopher T. Travis for Appellant

Jana E. Emerick for Appellee Case No. 1-12-31

PRESTON, P.J.

{¶1} Defendant-appellant, Clinton A. Hoseclaw, appeals the Allen County

Court of Common Pleas’ judgment entry of conviction and sentence. For the

reasons that follow, we affirm.

{¶2} On December 15, 2011, the Allen County Grand Jury indicted

Hoseclaw on Count One of unlawful sexual conduct with a minor in violation of

R.C. 2907.04(A) & (B)(4), a second-degree felony, and Count Two of rape in

violation of R.C. 2907.02(A)(2), a first-degree felony. (Doc. No. 3).

{¶3} On December 22, 2011, Hoseclaw was arraigned, entered pleas of not

guilty, and was appointed trial counsel. (Doc. Nos. 9, 52).

{¶4} On January 9, 2012, Hoseclaw filed a motion to suppress statements

he made to law enforcement. (Doc. No. 13). On February 7, 2012, the trial court

held a hearing on the motion, and, on March 27, 2012, the trial court overruled the

motion. (Doc. No. 44).

{¶5} On March 26-27, 2012, a jury trial was held wherein the jury found

Hoseclaw guilty Count One of unlawful sexual conduct with a minor. (Doc. Nos.

45, 52). However, the jury could not reach a verdict on Count Two of rape, so the

trial court declared a mistrial as to that count. (Doc. No. 52); (Mar. 26-27, 2012

Tr., Vol. II at 461-467).

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{¶6} On June 25-26, 2012, a second jury trial was held on the rape charge,

and the jury found Hoseclaw guilty. (Doc. Nos. 97, 104). At the conclusion of the

trial, the trial court proceeded to sentencing. The trial court found that unlawful

sexual conduct with a minor was a lesser-included offense of rape pursuant to

State v. Johnson,

,

. (Doc. No. 104); (June 25-

26, 2012 Tr. Vol. II at 485). Thereafter, the State elected to proceed to sentencing

on the rape conviction, and the trial court sentenced Hoseclaw to eight years

imprisonment. (Id.). (Id. at 485-493). The trial court filed its judgment entry of

conviction and sentence on June 28, 2012. (Doc. No. 104).

{¶7} On July 23, 2012, Hoseclaw filed a notice of appeal. (Doc. No. 107).

Hoseclaw raises three assignments of error for our review, all relating to the

second trial on the rape charge.

Assignment of Error No. I

The trial court erred to the prejudice of appellant/defendant by entering a guilty finding upon a verdict that was against the manifest weight of the evidence.

{¶8} In his first assignment of error, Hoseclaw argues that his rape

conviction was against the manifest weight of the evidence. In particular,

Hoseclaw argues that the victim was not credible, because she did not make any

allegations against him until nearly nine months after the alleged incident. He also

argues that the victim was not credible, because, after the alleged rape occurred,

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she remained alone in his vehicle with access to her cell phone and yet she did not

flee or call anyone for help. Finally, Hoseclaw argues that the victim was not

credible because she threw away her clothing and took a shower destroying any

potentially exculpatory physical evidence.

{¶9} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘[weigh] the

evidence and all reasonable inferences, consider the credibility of witnesses and

[determine] whether in resolving conflicts in the evidence, the [trier of fact]

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’” State v. Thompkins,

(1997), quoting State v. Martin,

(1st Dist. 1983). A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass,

(1967).

{¶10} The criminal offense of rape is codified in R.C. 2907.02, which

provides, in relevant part: “[n]o person shall engage in sexual conduct with

another when the offender purposely compels the other person to submit by force

or threat of force.” R.C. 2907.02(A)(2).

{¶11} The victim, K.S., testified that, at the time of the second trial, she

was fourteen (14) years old, but she had just turned thirteen (13) years old prior to

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the rape. (June 25-26, 2012 Tr. at 185-186). K.S. testified that, in October 2010,

she was living with her brother, Anthony (10 years old), her sister, Elizabeth (14

years old), her mother, Antoinette, and her father. (Id.). K.S. also testified that

she has a half-brother, Eric (19 years old), and a half-brother, Wayne, but they did

not live with the family. (Id. at 186). Eric, according to K.S., was living two

doors down from her parents with Mona and Paul, her parents’ best friends, along

with his girlfriend, Mona and Paul’s daughter. (Id. at 186-187). K.S. testified

that, back in October 2010, she had known Hoseclaw for approximately a month

or so, and he was not a close friend but someone who would hang out with her

half-brother, Eric, at Mona and Paul’s house. (Id. at 187). K.S. testified that she

spent time with Hoseclaw only as part of a group of five to six people, and she

never went to Hoseclaw’s house on Dewey Avenue, nor was she aware that he

lived on Dewey Avenue. (Id. at 188). K.S. testified that, on October 28, 2010

after 4:30 p.m., she went home after volleyball practice, changed into some loose

blue jean shorts, and went to Mona and Paul’s house to visit their daughter and her

friend, Isabella. (Id. at 188-189). K.S. testified that Hoseclaw was at the house,

and Hoseclaw mentioned going to Subway for dinner, which she said sounded

good. (Id. at 190). K.S. testified that she told her mom that Hoseclaw and Eric

were going to get Subway, and she asked her mom if she could go with them to

get everyone in the family Subway for dinner. (Id. at 190-191). K.S. testified that

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her mom allowed her to go and gave the money to Hoseclaw, who went with her

to ask permission. (Id. at 191). K.S. testified that her mother knew Hoseclaw

through her brothers, and Hoseclaw would sometimes play X-box with her 11-

year-old brother, A.J., and, one time, helped A.J. put together a science kit. (Id. at

191-192). K.S. testified that something came up and Eric could not go to Subway

and to Speedway to get a pop for her mom. (Id. at 193). K.S. testified that they

went to Speedway for a drink for her mom, rather than Subway, because her mom

likes the foam cups Speedway has for their Pepsi drinks. (Id.). She testified that,

when they left for Subway, it was just starting to turn dark outside. (Id. at 205).

{¶12} K.S. testified that Hoseclaw was driving and she was seated in the

passenger seat. (Id. at 194). According to K.S., they drove out Leland Avenue,

where they live, and turned left at Jamison Avenue, though she was not paying

attention while Hoseclaw was driving since she was texting and listening to her

music. (Id. at 194-195, 197-198). She testified that she was not paying attention

after Hoseclaw turned left onto Jamison Avenue, and she figured that Hoseclaw

was going to the Speedway on Cable Road rather than the Speedway on Jamison

Ave. (Id. at 195). According to K.S., the next thing she heard was Hoseclaw say,

“Oops, took a wrong turn,” and when she glanced up, they were parked in an

alley, and Hoseclaw was coming over onto her side of the seat. (Id. at 195-196).

She testified that Hoseclaw came over on her side of the seat, knocking her cell

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phone to the floor, and her right arm was pinned against the door and in between

the seat. (Id. at 198-199). K.S. testified that Hoseclaw pinned her left hand up

against the seat, and he was wearing stretchy shorts and a white t-shirt. (Id.). K.S.

testified that Hoseclaw drives a white SUV, her seat was already all the way back,

but she could not recall where the gearshift was located or whether there was a

center console. (Id.); (Id. at 225). K.S. testified that Hoseclaw’s body was on top

of her chest, with all of his weight on her, and he was facing her. (Id. at 200).

K.S. testified that Hoseclaw then pulled down her pants and underwear together

with his left hand, put his knee in between her legs to separate them, and put his

penis inside her vagina. (Id. at 200-201). K.S. testified that Hoseclaw managed to

get her pants and underwear all the way down by pushing them down with his foot

after placing his knee in between her legs. (Id. at 202). K.S. testified that, when

Hoseclaw began to climb over on top of her, she was “in shock” and did not say

anything but later told him to stop. (Id. at 203). She testified that she was “scared

and didn’t really know what to do. And [she] just wanted out of it.” (Id.). When

asked if she fought Hoseclaw off of her, K.S. testified, “I couldn’t move. My

body was pretty much pinned.” (Id.). She testified that she could not see any

houses from where they were parked, just brick buildings and graffiti. (Id. at 204).

K.S. testified that she did not yell since she did not think anyone was around to

hear her. (Id. at 205).

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{¶13} K.S. testified that Hoseclaw put his penis in her vagina and went up

and down for “probably like 10 minutes, 15 minutes.” (Id. at 206). She testified

that she did not see Hoseclaw take out his penis, but she felt it inside her, and it

felt larger than a tampon and hurt. (Id.). K.S. testified that she did not know what

this felt like prior to this incident. (Id.). K.S. testified that Hoseclaw kissed her on

the cheek and was staring into her eyes, but she was looking toward the roof of the

car just wanting it to end. (Id. at 207). According to K.S., after Hoseclaw finished

he returned to his seat, and she laid there in shock not knowing what to do or if

anyone would believe her. (Id.). After a few minutes passed, Hoseclaw told her

to pull up her pants, which she did, though she continued crying. (Id. at 208).

K.S. testified that Hoseclaw told her not to tell anyone or he would hurt her and

her family. (Id.). After that, Hoseclaw drove to the Cable Road Speedway gas

station, and, on the way there, she noticed that they were near her neighborhood

but closer to St. Rita’s Hospital. (Id. at 209). K.S. testified that she waited in the

vehicle about five to ten minutes while Hoseclaw went into Speedway to get the

pop. (Id. at 210). K.S. testified that Hoseclaw then drove to the Subway on Elida

Road, and she again waited for him inside the vehicle, though she was not sure

how long she waited. (Id. at 211). K.S. testified that she still had her cell phone

with her, but she did not text or call anyone, nor did she leave the car and tell

someone what happened, because she did not think anyone would believe her. (Id.

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at 216-217). She testified that she did not think people would believe her because

her friend down the street is “boy crazy” and is always talking about boys. (Id. at

217). She also testified that she did not tell her mom since she does not talk to her

mom about boys or anything like that. (Id.).

{¶14} According to K.S., Hoseclaw then drove her home, she gave her

mom the subs, her mom gave her a sub sandwich, and she went up to her bedroom

and closed the door. (Id. at 211-213). K.S. testified that, as soon as she entered

her bedroom, she just sat down against the bedroom door and cried for five to ten

minutes. (Id. at 214). She testified that, when she changed her clothes, she

noticed blood on her underwear. (Id. at 214-215). K.S. testified that it was more

than spots of blood but also not like she had started her period, either. (Id. at 215).

She testified that she threw her clothes away, took a shower, and did not tell

anyone what happened. (Id.). K.S. testified that, in June 2011, she told her mom’s

best friend, Stephanie, about the rape after she had a bad dream about the rape at

Stephanie’s house. (Id. at 218-219). K.S. testified that Stephanie is like a second

mom and confidant. (Id. at 219-220). K.S. testified that she did not want to tell

her mom because she did not want to cause her mom, who suffers from Lupus, to

be hospitalized because of the stress. (Id. at 213, 220). She testified that she

thought Stephanie would keep her secret, but, after K.S. returned from summer

camp, her mom asked her if Hoseclaw raped her. (Id. at 221-222). After K.S. told

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her mom what happened, her mom called the police. (Id. at 222-223). K.S.

testified that she underwent a gynecological exam and was tested for sexually

transmitted diseases and for pregnancy, though both tests came back negative. (Id.

at 223-224). K.S. identified Hoseclaw, the defendant, as the person who attacked

her in the SUV on the night of October 28, 2010. (Id. at 224). K.S. denied asking

Hoseclaw to have sex and testified that she never agreed to have sex with him.

(Id. at 225). K.S. testified that Hoseclaw forced her to have vaginal intercourse

with him. (Id.).

{¶15} On cross-examination, K.S. testified that it was approximately three

or four minutes from the time she entered Hoseclaw’s vehicle to the time

Hoseclaw stated, “Oops, wrong turn.” (Id. at 232). K.S. testified that, during the

rape, her cell phone fell on the floor of the vehicle in front of her, and she did not

pick her cell phone back up until she arrived home. (Id. at 235). She testified that

she stayed in her bedroom the rest of the night after getting back home. (Id. at

236). She testified that she threw her clothes away in a trash can in her bedroom,

and she eventually emptied out the can when it was garbage night, which was a

Tuesday. (Id. at 237-238). K.S. explained that she did not think anyone would

believe her since her best friend, Mona and Paul’s daughter, lied about boys to

K.S.’s mom. (Id. at 240). K.S. testified that, by the time they reached Subway it

was “[a]lmost all the way dark.” (Id. at 242). K.S. testified that she never told

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anyone about the sexual encounter with Hoseclaw before talking to Stephanie.

(Id. at 243-244). On re-direct, K.S. testified that she told Lima Police Officer

Tiffany Najmowski about the details of the incident. (Id. at 245-246, 249-250).

She further testified that it was normal for her to eat in her room and fall asleep

afterwards since she would be tired from volleyball practice. (Id. at 247).

According to K.S., her mother would not have been able to go up and down stairs

to check on her due to her medical condition. (Id.). K.S. testified that her sister

never said anything about the clothes being in the trash since they have thrown out

clothes before. (Id. at 248). She also testified that, even if her bloody underwear

were visible in the trash can, her sister would probably have just thought she

started her period. (Id.). K.S. testified that she did not bleed through her pants

and did not notice anything on the seat of Hoseclaw’s SUV. (Id. at 249). K.S.

could not recall if she told Najmowski that Hoseclaw threatened her if she told

anyone. (Id. at 250).

{¶16} Stephanie Davenport testified that she has never met Hoseclaw, but

she knows K.S. and became acquainted with her through K.S.’s father who

worked at Domino’s pizza with a friend of hers. (Id. at 253). Stephanie testified

that she has been good friends with K.S.’s mother, Antoinette, for the last six

years. (Id. at 254). Stephanie testified that she treated Antoinette’s children as her

own, and she spent holidays with the family and bought them presents, and

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Antoinette’s children would stay overnight at her house. (Id.). Stephanie testified

that K.S. would often share things with her she might not share with her mother.

(Id. at 255). Stephanie testified that she generally kept K.S.’s secrets, unless it

was something that was harmful to K.S., and then she would give that information

to K.S.’s parents. (Id. at 256). Stephanie testified that K.S. told her that Hoseclaw

raped her last summer, and Stephanie told K.S. that she needed to tell her mother,

and if K.S. did not tell her mother that she would. (Id. at 258-259, 264).

Stephanie testified that she told K.S.’s mom about the rape after K.S. failed to tell

her. (Id. at 259-262). Stephanie testified that, during the beginning of the 2010

school year, K.S.’s behavior changed dramatically—K.S. was no longer excited

about school, did not want to join sports, became more defiant toward her parents,

and closed up to her. (Id. at 264). On cross-examination, Stephanie testified that

she noticed the changes in K.S. after the Allen County Fair, which was in August.

(Id. at 265-266). Stephanie testified that she had a prior theft conviction over eight

years ago. (Id. at 270). On re-direct, Stephanie testified that K.S. asked her not to

tell her mom, but Stephanie told K.S. that she could not do that and gave K.S. two

weeks to talk to her mom about it. (Id. at 271).

{¶17} Antoinette testified that she is the biological mother of K.S., who

was born in September 1997, and K.S. was thirteen years old and in the seventh

grade in October 2010. (Id. at 275-276). Antoinette testified that, in October

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2010, her step-son, Eric, was living at a neighboring house with Mona and Paul

Pongratz, her really good friends. (Id. at 276-277). Antoinette testified that, as of

October 2010, she had only known Hoseclaw for about a month, and he was

visiting with Eric at Mona and Paul’s house since Hoseclaw attended college with

Eric. (Id. at 278-279). Antoinette did not know where Hoseclaw lived, and she

never granted K.S. permission to visit Hoseclaw’s house. (Id. at 281). Antoinette

testified that she recalled that it was a school night after K.S. had returned from

volleyball practice when Hoseclaw and K.S. went to Subway. (Id. at 281-283).

According to Antoinette, K.S. was at the Pongratz’s house, and she came back to

the house with Hoseclaw asking if she could get Subway for the family. (Id. at

283). She testified that she asked K.S. to get her a Pepsi from Speedway, rather

than Subway, since she likes the foam cups Speedway provides for their fountain

drinks. (Id. at 284). Antoinette testified that it was just starting to get dark outside

when K.S. and Hoseclaw left, but it was completely dark by the time they returned

since they were gone for a little over an hour. (Id. at 285). Antoinette testified

that she asked K.S. what took her so long, and K.S. did not respond but simply

handed her the subs and Pepsi and headed upstairs to her bedroom. (Id. at 286).

Antoinette testified that K.S. did not come downstairs that entire evening, and

Hoseclaw did not come over to their house after that night. (Id. at 286-287). She

testified that she reported the rape to the police in July 2011 after Stephanie told

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her that Hoseclaw raped K.S. and K.S. confirmed it was true after K.S. returned

from Christian camp, which was the summer after the rape. (Id. at 287-289).

Antoinette testified that K.S. did not provide details of the rape; rather, she asked

K.S. if Hoseclaw touched her, and K.S. indicated “yes.” (Id. at 290). On cross-

examination, Antoinette testified that she thought Eric was going to go with K.S.

and Hoseclaw to Subway. (Id. at 291-292). She testified that she was not sure

whether Hoseclaw dropped K.S. off at her house or at the Pongratz’s house. (Id.

at 292). Antoinette testified that she believed K.S. (Id. at 294).

{¶18} Lima Police Detective Steven Stechschulte testified that, after

Officer Tiffany Najmowski contacted him about the rape, he spoke with Hoseclaw

on Friday, July 29, 2011, and Hoseclaw denied knowing K.S. (Id. at 295-297).

After Stechschulte told Hoseclaw that he was aware of Hoseclaw’s relationship

with someone living a couple doors down from K.S., Hoseclaw admitted that he

knew K.S.’s brother but said he did not know K.S. that well. (Id. at 298).

Hoseclaw denied having sex with K.S. and did not have any response when

Stechschulte asked about possible DNA evidence in Hoseclaw’s vehicle. (Id.).

Stechschulte testified that he then arrested Hoseclaw for suspicion of rape. (Id. at

299). Stechschulte testified that, on Monday, August 1, 2011, when Hoseclaw

was brought to the Sheriff’s Department for booking, a corrections officer

informed him that several detainees wanted to speak with him regarding

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statements made by Hoseclaw. (Id. at 300). The inmates informed Stechschulte

that Hoseclaw should be removed from the holding cell before he was beat up for

making statements about having consensual sex with a thirteen-year-old girl. (Id.).

Stechschulte testified that this was the first time he heard about Hoseclaw and K.S.

having consensual sex. (Id.). Stechschulte testified that he moved Hoseclaw to

another, separate holding room, and he explained to Hoseclaw that he was moving

him for his own protection due to the statements he made to the other detainees.

(Id. at 301). Stechschulte testified that two days later, on August 3rd, Hoseclaw

contacted him to discuss the sexual encounter with K.S. (Id. at 302). Stechschulte

testified that, during the interview with Hoseclaw when he asked about the

incident occurring in Hoseclaw’s vehicle, Hoseclaw indicated that law

enforcement would never find anything in his vehicle because he never had a

chance to “properly christen” his vehicle—meaning Hoseclaw never had sex in his

vehicle. (Id. at 304). Stechschulte identified State’s exhibit one as a copy of

portions of the August 3rd interview with Hoseclaw. (Id. at 305). Stechschulte

testified that he omitted portions of the interview that were concerning an

unrelated burglary that Hoseclaw alleged occurred at his home. (Id. at 306).

{¶19} Stechschulte testified that, at the time of the incident, Hoseclaw was

living at 169 South Dewey Avenue in Lima, about a block away from Lima

Memorial Hospital. (Id. at 308). Stechschulte testified that he located Hoseclaw’s

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vehicle, a 2002 white Chevy Blazer SUV, and removed the passenger-side bucket

seat and sent the upholstery to BCI for testing. (Id. at 310-316, 334). Hoseclaw’s

vehicle was an automatic transmission with the gear shift located on the floor

towards the front dash area, not in a console between the seats, according to

Stechschulte. (Id. at 315). Stechschulte testified that he located some of

Hoseclaw’s personal items, including a photograph, in the glove box of the

vehicle, so he called Hoseclaw and offered to return those items. (Id. at 316).

Stechschulte testified that he delivered the items to Hoseclaw and informed him

that he removed the seat of his vehicle for testing. (Id. at 318). Stechschulte

identified State’s exhibit two as a copy of the relevant portions of his second

interview with Hoseclaw, which was on October 11th. (Id. at 320). Stechschulte

testified that, during this interview, Hoseclaw changed some of the details of his

story again, including the sequence of the events, and whether they went back to

K.S.’s house first or straight to his house for consensual sex. (Id.). Stechschulte

also testified that, during the October 11th interview, Hoseclaw stated that he had

“christened” his vehicle, but just not with K.S. (Id. at 322). Stechschulte testified

that Hoseclaw would have been about twenty-six years old when the rape

occurred. (Id. at 324). Stechschulte testified that he tried to obtain the video

surveillance tapes from Speedway and Subway, but those businesses do not keep

video from that long ago. (Id. at 325). Stechschulte testified that the area where

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K.S. described Hoseclaw driving was near St. Rita’s hospital and that area has

several secluded alleys and vacant residences. (Id. at 327-328).

{¶20} Lima Police Officer Gregory Adkins testified that he collects

physical evidence at crime scenes for the police department. (Id. at 336-337). He

testified that he helped Stechschulte remove the front passenger seat from

Hoseclaw’s vehicle and brought it back to the police department. (Id. at 337-338).

Adkins testified that Stechschulte placed the seat in the property room at the police

department until they had further instruction from The Bureau of Criminal

Investigations (“BCI”). (Id. at 339). Adkins testified that BCI told them to send

the upholstered part of the seat, not the entire seat, so he cut the upholstered part

from the seat frame, which he identified as State’s exhibit three. (Id. at 340).

Adkins identified State’s exhibit four as the seat cushion upholstery and State’s

exhibit three as the back rest upholstery. (Id. at 345-346). Adkins identified

State’s exhibit five as a buccal DNA swab he took from Hoseclaw. (Id. at 347-

348).

{¶21} Peter James Tassi, Jr., a forensic biologist at BCI, testified that he

located sperm cells on the back portion of the seat (State’s exhibit three). (Id. at

354, 358, 364). He testified that further analysis was done at the lab to determine

if the sperm cells matched the submitted DNA sample (Hoseclaw’s DNA), but he

did not perform that testing. (Id. at 365). On cross-examination, Tassi testified

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that he located eight possible locations on the car seat upholstery for bodily fluid,

but only one location reacted to the color-change test, which indicates the presence

of semen. (Id. at 374, 378). Tassi identified State’s exhibit eight as a copy of his

report. (Id. at 357-358); (State’s Ex. 8).

{¶22} Raymond Peoples, a forensic scientist in the DNA section of BCI,

testified that he compared samples from three swabbings of the car seat, one of

which was the semen stain identified by Tassi. (Id. at 380, 385-386). Peoples

testified that he did not get any profile for the two blind swabs; however, he

obtained a profile from the semen stain, and it was consistent with Hoseclaw’s

DNA. (Id. at 386). Peoples identified State’s exhibit nine as a copy of his report.

(Id. at 385); (State’s Ex. 9).

{¶23} Thereafter, State’s exhibits one through nine were admitted into the

record without objection. (Id. at 397). The defense moved for acquittal pursuant

to Crim.R. 29(A), which was denied. (Id. at 398-400). The defense then rested

and renewed the motion for acquittal, which was again denied. (Id. at 400-401).

{¶24} Hoseclaw argues that the verdict was against the manifest weight of

the evidence since the victim, K.S., was not credible, pointing to several

uncontested facts. First, Hoseclaw argues that K.S. was not credible because she

waited nearly nine months to tell anyone about the incident. While this is true,

K.S. explained that she did not tell anyone because she did not think anyone would

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believe her because her girlfriend, Mona and Paul’s daughter, would lie about

boys all the time. (Id. at 216-217). The jury was free to believe or disbelieve the

victim’s rationale for not reporting the rape. State v. Abdussatar, 8th Dist.

Cuyahoga No. 86406,

(jury was free to believe victim even

though the victim did not report the rape for six months where the victim stated

she was scared). We are not persuaded that this diminishes K.S.’s credibility.

{¶25} Next, Hoseclaw argues that K.S. was not credible because she claims

that, immediately after the incident, she did not attempt to flee or call anyone even

though she was alone in the vehicle with her cell phone. It is true that K.S.

testified that she did not flee the vehicle or attempt to call anyone on her cell

phone after the rape occurred; however, K.S. gave the same explanation for this

behavior—she did not think anyone would believe her. Furthermore, K.S.

testified that Hoseclaw threatened to harm her and her family if she told anyone

what happened. (June 25-26, 2012 Tr. at 208). Besides the overwhelming shock

that K.S. felt from the rape, Hoseclaw’s threat may very well have kept her from

telling anyone, at least immediately after the incident. The jury was entitled—and

duty bound—to determine K.S.’s credibility in this matter. State v. Curtis, 8th

Dist. Cuyahoga No. 48011, *2 (Nov. 15, 1984) (jury was free to believe the

victim’s testimony that she was afraid to escape from her attacker while he was in

the shower). We are not convinced that this fact raises a sufficient issue with

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K.S.’s credibility to find that the jury clearly lost its way and created a manifest

injustice.

{¶26} Finally, Hoseclaw argues that K.S.’s credibility is questionable given

that she discarded her clothing and took a shower thereby destroying important

physical evidence. We are not persuaded by this argument, either. It is

completely understandable that a rape victim would want to destroy or discard the

clothing she was wearing during a rape—having that clothing around would serve

as an unwanted reminder of what happened. It is not uncommon that rape cases

lack physical evidence, and physical evidence is not required to prove the rape

occurred; testimony of a victim is sufficient. State v. Banks,

(3d Dist. 1991). Furthermore, it is not uncommon for victims of sexual assault

to bathe or shower afterwards to cleanse themselves—literally and even

psychologically—from the attack. K.S.’s behavior is not abnormal and is

understandable behavior, which does not significantly impact her credibility.

{¶27} The jury had ample reasons to believe K.S. and disbelieve Hoseclaw.

K.S. consistently maintained that Hoseclaw raped her in his vehicle. Hoseclaw’s

story, on the other hand, changed several times. When Hoseclaw was first asked

about the rape allegation, he denied knowing K.S. altogether. (June 25-26, 2012

Tr. at 297-298). Then, when Stechschulte told Hoseclaw that he knew Hoseclaw

knew Mona and Paul who lived near K.S. and her family, Hoseclaw admitted that

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he knew K.S.’s brother, Eric, but did not know K.S. that well. (Id.). Thereafter,

during his first interview with police and after Stechschulte confronted Hoseclaw

with statements he made to other detainees about him having sex with a thirteen-

year-old girl, Hoseclaw admitted he had consensual, vaginal sex with K.S. at his

house on Dewey Street. (State’s Ex. 1). Hoseclaw adamantly denied having sex

in his vehicle with K.S. or anyone else, stating that he never had an opportunity to

“properly christen” his vehicle. (State’s Exs. 1-2); (June 25-26, 2012 Tr. at 303,

310). Instead, Hoseclaw claimed that K.S. grabbed his face and kissed him while

they were driving from Speedway to Subway. (State’s Ex. 1-2). Hoseclaw also

alleged that K.S. asked him if he would have sex with her, because she has wanted

him since she first met him. (Id.). Hoseclaw alleged that he first said “no” but

later agreed, so they dropped off Subway at her house and went to his house and

had sex. (Id.).

{¶28} Hoseclaw also stated that K.S. was with him before on multiple

occasions, getting movies at his house, picking up Speedway, or picking up Eric.

(State’s Ex. 2). K.S. testified, however, that, as of October 2010, she had only

known Hoseclaw for about a month, she never spent time with Hoseclaw except

with a group of people, and she was never at his house. (June 25-26, 2012 Tr. at

187-188). Hoseclaw admitted taking K.S. to Subway, though he thought the date

was not October 28th since he was busy that night. (State’s Ex. 1-2). He also

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alleged that, after they returned from Subway, he stayed at K.S.’s house for 15-20

minutes. (Id.). K.S.’s mother, on the other hand, testified that Hoseclaw did not

come in the house after they returned with Subway. (June 25-26, 2012 Tr. at 286-

287). Hoseclaw stated that after he left K.S.’s house, he went to Mona and Paul’s

house, and then to his friend Sean Robie’s (phonetic) house in Elida. (State’s Ex.

2). When Stechschulte asked which friend’s house, presumably to check

Hoseclaw’s story, Hoseclaw stated that Sean had already moved back to

Michigan, anyway. (Id.). Hoseclaw also alleged that K.S. was wearing stretchy

pants the night they went to Subway, but K.S. testified that she was wearing blue

jean shorts. (June 25-26, 2012 Tr. at 188-189).

{¶29} Based upon our review of the evidence, we are not persuaded that the

jury clearly lost its way creating a manifest injustice. There was evidence upon

which the jury could have reasonably concluded that Hoseclaw purposefully

compelled K.S. to engage in sexual conduct by force. R.C. 2907.02(A)(2). While

K.S.’s story remained consistent, Hoseclaw changed his story several times after

Stechschulte presented him with reasons he thought Hoseclaw was not being

truthful. Under these circumstances, the jury could have believed K.S. and

disbelieved Hoseclaw, and we will not second-guess the jury’s credibility

determination.

{¶30} Hoseclaw’s first assignment of error is, therefore, overruled.

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Assignment of Error No. II

Appellant was deprived of his right to effective assistance of counsel as provided pursuant to the 14th and 6th Amendments to the U.S. Constitution.

{¶31} In his second assignment of error, Hoseclaw argues he was denied

effective assistance of trial counsel when trial counsel failed to object to irrelevant,

prejudicial, or otherwise inadmissible evidence that the State used to bolster the

victim’s credibility.

{¶32} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole,

(2001), citing Strickland v. Washington,

,

(1984). In order to show counsel’s conduct was

deficient or unreasonable, the defendant must overcome the presumption that

counsel provided competent representation and must show that counsel’s actions

were not trial strategies prompted by reasonable professional judgment.

Strickland,

. Counsel is entitled to a strong presumption that all

decisions fall within the wide range of reasonable professional assistance. State v.

Sallie,

(1998). Tactical or strategic trial decisions, even if

unsuccessful, do not generally constitute ineffective assistance. State v. Carter,

(1995). Rather, the errors complained of must amount to a

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substantial violation of counsel’s essential duties to his client. See State v.

Bradley,

(1989), quoting State v. Lytle,

(1976).

{¶33} Initially, we note that whether to object to the admission of testimony

is generally a matter of trial strategy and not grounds for ineffective assistance.

State v. Schlosser, 3d Dist. No. 14-10-30,

. As the Court in

State v. Hartman observed, “‘[b]ecause objections tend to disrupt the flow of a

trial, [and] are considered technical and bothersome by the fact-finder, * * *

competent counsel may reasonably hesitate to object in the jury’s presence.’”

(2001), quoting State v. Campbell,

(1994) (internal quotations omitted). With that in mind, we will address the

specific instances where Hoseclaw argues that trial counsel should have objected.

{¶34} The first instance where Hoseclaw alleges that defense counsel was

ineffective for failing to object to allegedly inadmissible hearsay was the

following:

Q: Okay. Why didn’t you tell your mom?

A: I really don’t talk to her about boys or anything like that.

Q: Okay. Did you eventually tell somebody what happened to you,

[K.S.]?

A: Yes, I did. (June 25-26, 2012 Tr. at 217-218).

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{¶35} The second instance where Hoseclaw alleges that defense counsel

was ineffective for failing to object to allegedly inadmissible hearsay was the

following, referring to a conversation K.S. had with her mother about the rape:

Q: Okay. And give the exact words that * * * [your mother] used

with you to ask you about it?

A: She -- as soon [sic] I walked in the door, she’s like -- after I sat

down she asked me, “Did [Hoseclaw] rape you?”

Q: Okay. And what did you tell her.

A: I told her yes. (Id. at 222).

{¶36} The third instance where Hoseclaw alleges that defense counsel was

ineffective for failing to object to allegedly inadmissible hearsay was the

following, referring to a conversation K.S. had with the law enforcement officer

that responded to the reported rape:

Q: Did you tell him what happened?

A: Yes. (Id. at 223).

{¶37} The fourth instance where Hoseclaw alleges that defense counsel was

ineffective for failing to object to allegedly inadmissible hearsay was the

following, referring to a conversation K.S. had with another law enforcement

officer:

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Q: Okay. But the primary person you were talking to would have

been Officer Tiffany?

A: Yes.

***

Q: Okay. And did you go through all these details with her?

A: Yes. (Id. at 246).

{¶38} Hoseclaw’s arguments are meritless. To begin with, the fourth

instance is cross-examination conducted by his trial counsel. Trial counsel was

not ineffective for questioning the victim concerning whether or not she shared the

details of the offense to the reporting officer. This was clearly a trial strategy to

question her credibility, especially in light of the fact that she took over nine

months to come forward.

{¶39} The first and third instances do not involve hearsay. “‘Hearsay’ is a

statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R.

801(C). The testimony here does not concern the statements K.S. made, only

whether she made any statements. Finally, the second instance is not hearsay

because it was not offered for the truth of the matter asserted—that Hoseclaw, in

fact, raped K.S.—but rather, for the fact that K.S. told her mother that Hoseclaw

raped her. Even if this testimony was inadmissible hearsay, trial counsel was not

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ineffective for failing to object to it since defense counsel’s trial strategy was

premised on the lack of evidence of force or threat of force and, more importantly,

the victim’s lack of credibility. (Id. at 182-183, 434-436). The testimony elicited

by the State was relevant because it explained why the victim did not initially

report the rape and how the rape was ultimately reported to law enforcement.

{¶40} Next, Hoseclaw argues that trial counsel was ineffective for failing to

object to irrelevant and prejudicial evidence of the victim’s lack of sexual history.

The line of questioning was as follows:

Q: Okay. Again, as graphic as this may seem, how do you know his

penis was inside your vagina, [K.S.]?

A: Because I can feel it.

Q: Okay. Did you know what that felt like prior to this time?

A: No. (Id. at 206).

Hoseclaw argues that trial counsel was ineffective for failing to object to this

irrelevant and inadmissible testimony concerning the victim’s past sexual

experiences. This argument lacks merit. The context of the testimony reveals that

the State was seeking to establish penetration, which is required to show sexual

conduct, an essential element of rape. R.C. 2907.02(A)(1), 2907.01(A).

Furthermore, this was not “evidence of specific instances of the victim’s sexual

activity” prohibited under R.C. 2907.02(D); rather, the testimony related to the

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victim’s perception of whether Hoseclaw penetrated. Trial counsel was not

ineffective for failing to object to this testimony.

{¶41} Finally, Hoseclaw argues that trial counsel was ineffective for failing

to object to testimony concerning the emotional impact the rape had upon the

victim. The testimony at issue is the following:

Q: Okay. Was there anything that you noticed during that school

year of 2010 when [K.S.] was in 7th grade, any changes in her

behavior?

A: A lot. She really got to the point where she didn’t -- she wasn’t

as excited about school. She didn’t want to join the sports like she

had the year before. She didn’t want to do anything. She became

more defiant toward her parents and toward people. She got closed

up with me to where she wouldn’t really come out and talk to me as

much or just her whole attitude had changed. She was not the [K.S.]

that I knew. (June 25-26, 2012 Tr. at 264).

{¶42} Hoseclaw cites State v. Presley, 10th Dist. Franklin No. 02AP-1354,

, in support of his argument that this testimony was overly

prejudicial and inflammatory. The victim in Presley testified that she had

nightmares and both she and her mother tried to commit suicide as a result of the

rape. Id. at ¶ 86. The testimony in this case is much less inflammatory than the

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testimony in Presley, and the testimony in this case was not from the victim but

from a third-party. Additionally, trial counsel cross-examined the witness

regarding this testimony to identify a timeframe for these observations, and the

witness testified that she noticed K.S.’s attitude change around the time of the

Allen County Fair, which was at the end of August a couple months prior to the

rape. (June 25-26, 2012 Tr. at 265-266). At that point, a reasonable juror might

have concluded that the victim’s change in attitude had nothing to do with the

rape; but rather, was related to her age (a teenage girl) and the fact that the school

year was going to begin again. In light of the nature of the testimony and

counsel’s cross-examination, we are not persuaded that trial counsel was

ineffective for failing to object to this testimony.

{¶43} Hoseclaw’s second assignment of error is overruled.

Assignment of Error No. III

The trial court erred to the prejudice of the appellant/defendant by admitting irrelevant hearsay evidence of prior consistent statements of an alleged victim.

{¶44} In his third assignment of error, Hoseclaw argues that the trial court

abused its discretion by admitting additional hearsay evidence. He argues that

even if the evidence was not hearsay it was nevertheless inadmissible under

Evid.R. 403.

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{¶45} “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Hearsay is inadmissible absent an applicable

exception. Evid.R. 802. All relevant evidence is generally admissible; however,

relevant evidence “may be excluded if its probative value is substantially

outweighed by considerations of undue delay, or needless presentation of

cumulative evidence.” Evid.R. 402, 403(B).

{¶46} A trial court’s decision whether to admit demonstrative evidence is

reviewed for an abuse of discretion. State v. Jones,

, 2012-

Ohio-5677, ¶ 82. An abuse of discretion is more than an error of judgment; rather,

it implies that the trial court’s attitude is unreasonable, arbitrary, or

unconscionable. State v. Adams,

(1980).

{¶47} Hoseclaw argues that the following testimony was inadmissible

hearsay, which the trial court should have excluded:

Q: * * * Stephanie, I’d like to direct your attention specifically to

last summer * * *[a]nd ask if [K.S.] made a revelation to you that

was somewhat startling and out of the ordinary?

A: Yes. She was at my house spending the night so was the other

kids, the other two (2) * * * her and her sister and brother had came

to my house to spend the night. We took a trip to Wal-Mart. A

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friend of mine, Rita, went with us. Rita had went into Wal-Mart to

pick some things up that she needed for the house. That is when

[K.S.] and me were sitting in my van and she proceeded to kind of

mumble words to me. I didn’t try to push her. I figured when she

was ready to talk she would talk. She then proceeded to tell me --

[DEFENSE COUNSEL]: Objection. Hearsay.

[PROSECUTOR]: Your honor, we are not offering it for it’s [sic]

truth.

THE COURT: It’s --

[PROSECUTOR]: We’re offering it --

THE COURT: It’s not being offered for the truth of the matter --

[PROSECUTOR]: for the circumstances of how the --

THE COURT: It’s by --

[PROSECUTOR]: -- the revelation was made.

THE COURT: -- being offered for the fact that she said it, if she

said it.

[DEFENSE COUNSEL]: And that’s the question that should be

asked, not what she said. She’s not -- she does not get to repeat

word for word the hearsay.

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[PROSECUTOR]: Your honor, first of all, I’m asking about a

statement made by [K.S.]. She’s not an out of court declarant. She

already testified. So by definition [sic] is not hearsay under the

evidence rules.1

THE COURT: Overruled. You may testify.

A: (BY THE WITNESS) she proceeded to tell me that she was

raped. And as far as getting into any other detail like that with her, I

did not. I did, however, ask her that she needed to speak with her

mother on the circumstances of what went on. And that I knew she

would be leaving for a camp or whatever and that if she didn’t let

her mother know so that the proper steps could be tooken [sic] that I

would in turn let her mother know what she had just confided in me

about.

***

Q: When she reported this to you did she, in fact, though

characterize it as a rape versus a consensual sexual encounter?

A: Yes. (June 25-26, 2012 Tr. at 256-259).

{¶48} The trial court did not abuse its discretion by allowing the witness to

testify concerning the victim’s statement that she was raped since it was offered

1 We recognize that the prosecutor incorrectly characterized the subject statement as non-hearsay due to the fact that the declarant was testifying in court. However, that incorrect statement of law by the prosecutor is immaterial to our ruling on this particular argument.

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not for its truth but to show why the witness reported the rape to the victim’s

mother, which the mother, then, reported to law enforcement. See State v.

Thomas,

(1980) (statements made by an out-of-court

declarant are properly admissible to explain the actions of a witness to whom the

statement was directed). Therefore, the testimony was not inadmissible hearsay

when offered for that purpose. Furthermore, Hoseclaw offers no reason why the

testimony should have been excluded under Evid.R. 403(B), and we find no

reason either. As such, we must conclude that the trial court did not abuse its

discretion here.

{¶49} Hoseclaw’s third assignment of error is, therefore, overruled.

{¶50} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr

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