[Cite as State v. Lundy,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-13-52

v.

MICHAEL LUNDY, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR20120236

Judgment Affirmed

Date of Decision: November 10, 2014

APPEARANCES:

F. Stephen Chamberlain for Appellant

Terri L. Kohlrieser for Appellee Case No. 1-13-52

WILLIAMOWSKI, P.J.

{¶1} Defendant-appellant Michael Lundy (“Lundy”) brings this appeal

from the judgment of the Court of Common Pleas of Allen County finding him

guilty of multiple charges and sentencing him to an aggregate prison sentence of

forty years. Lundy challenges the sufficiency of the evidence supporting his

conviction, the use of a peremptory challenge, and the sentence imposed. For the

reasons set forth below, the judgment is affirmed.

{¶2} On August 16, 2012, the Allen County Grand Jury indicted Lundy on

four counts: 1) Rape in violation of R.C. 2907.02(A)(2), a felony of the first

degree; 2) Rape in violation of R.C. 2907.02(A)(2), a felony of the first degree; 3)

Kidnapping in violation of R.C. 2905.01(A)(4), a felony of the first degree; and 4)

Aggravated Burglary in violation of R.C. 2911.11(A)(1), a felony of the first

degree. R. 3. A jury trial was held from August 6 to August 9, 2013. R. 208.

{¶3} The State’s first witness was Albert Hammond (“Hammond”)

Hammond testified that he lived with his girlfriend, the victim, in Lima. Tr. 201.

According to Hammond, he was sitting on the porch of their house when a man

came up and started speaking to him. Tr. 212. Hammond did not know the man,

but thought he might be a friend of the victim, so he continued to chat with him.

Tr. 214. The man was wearing denim shorts and a white or cream colored shirt.

Tr. 214. Hammond spoke to the man for approximately five minutes until the

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victim returned. Tr. 214. When the victim returned, she went in the house to put

the beer away and Hammond followed her. Tr. 215. At that point, they realized

that neither of them knew this man. Tr. 215. When they went back out onto the

porch, the man was standing on the porch. Tr. 215. Hammond told him to leave

and the man started walking away. Tr. 216. Hammond followed him to the screen

door, and the man turned around and struck Hammond. Tr. 216. Hammond

testified that the man repeatedly struck him and Hammond fell to the ground. Tr.

217. Hammond could hear the victim on the porch telling the man to stop. Tr.

218. Soon after Hammond hit the ground, he lost consciousness. Tr. 218.

{¶4} When Hammond came to, he did not see the victim or the man. Tr.

218. Hammond then tried to go in the house, but the door was locked. Tr. 218.

Hammond then went to the victim’s mother’s home and reported that the man had

taken the victim. Tr. 218. An ambulance was called and Hammond went to the

hospital while the victim’s family went to find her. Tr. 219. Later, Hammond saw

the victim at the hospital. Tr. 223.

{¶5} The next witness for the State was Mark Prinzi (“Prinzi”), who is

related to the victim. Tr. 226. On the evening in question, he was in the house

when there was a knock on the door. Tr. 231. When Prinzi opened the door,

Hammond was standing there with blood running from his mouth and he appeared

to be anxious. Tr. 232. When he learned that something had happened to the

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victim, he called for his wife to care for Hammond and he went to find the victim.

Tr. 232. When he got to the house, the door was locked. Tr. 232. His wife

eventually joined him, they broke into the house, and searched the house for the

victim, but she was not there. Tr. 233-34. They left the house and the victim’s

neighbor, Doug Moneer (“Moneer”) came out. Tr. 234. Prinzi and Moneer then

went looking down the street for the victim. Tr. 235. They proceeded to go

towards the riverwalk. Tr. 238. Just when they were about to turn around and

look in a different area, Moneer spotted the victim with a man, and Prinzi yelled

her name. Tr. 240. The man pushed away from the victim then and took off

running along the riverwalk. Tr. 240-41. The victim turned toward them and was

pulling her pants up. Tr. 242. Prinzi testified that the victim did not look like

herself because her face was swollen. Tr. 242. The person who ran away was a

male, but Prinzi did not see his face. Tr. 243. When the victim got to them, she

said that “he raped me” and Moneer then called 9-1-1. Tr. 243. The police and

ambulance arrived soon after and the victim was taken to the hospital. Tr. 244-45.

Once the victim was in the light, Prinzi saw that her “face was completely

distorted, swelled out, her jaw was way out here, it just didn’t look like her.” Tr.

245.

{¶6} While the EMT’s were treating the victim, Prinzi and Moneer were

speaking with the police. Tr. 245. During the discussion, Moneer saw the man

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that he identified as the attacker walking down the street and notified the police.

Tr. 245. Prinzi described the man he saw with the victim as wearing a white tank-

type T-shirt. Tr. 249.

{¶7} Moneer was the third witness for the State. Moneer testified that he

lived next door to the victim and had known her for years. Tr. 261. On June 21,

2012, Moneer was in his house watching the final game of the NBA finals with his

girlfriend and his children. Tr. 262. His girlfriend told him that she had seen the

victim and a guy walking past the window towards the girlfriend’s truck, so

Moneer went to the door to see what was happening. Tr. 263. Moneer saw the

victim leaning on the truck and an unknown black man was pulling her away. Tr.

264. He heard the victim say “Get away”, but he thought she was drunk and he

was just pulling her back to the party, so he went back in his house. Tr. 264. As

the victim was walking away, Moneer’s girlfriend told him that the victim’s face

was bleeding, so Moneer got back up and put on his shoes. Tr. 265. By the time

he got back outside, Prinzi came running up looking for the victim. Tr. 267.

Prinzi and Moneer then went to find the victim. Tr. 268.

{¶8} Moneer testified that he grabbed his big flashlight and he and Prinzi

started walking towards the river. Tr. 268. After they had gone three-fourths of

the distance, Prinzi wanted to turn around, but Moneer suggested they just go all

the way down. Tr. 268. Moneer shined his light down by the bridge and saw two

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people. Tr. 268. He recognized the woman as the victim and started running

towards her. Tr. 269. As he got closer, he could see a man “raping her from

behind.” Tr. 269. When the man heard them coming, he pushed the victim away,

picked up his shorts, and ran away. Tr. 270. The man ran towards Central

Avenue along the riverwalk. Tr. 270. Once Prinzi and Moneer reached the

victim, she kept repeating that the man had been raping her. Tr. 271. Moneer then

called 9-1-1 and requested an ambulance and the police. Tr. 271. Moneer was

able to give the officers a description of the man he saw. Tr. 272. While speaking

to the officers, Moneer looked up at the people and saw the man he had previously

seen. Tr. 273. He pointed him out to the police officer. Tr. 273. The officer then

called for assistance in apprehending the man as he could not leave the scene. Tr.

276. Moneer testified that he identified the man because he was wearing the same

pants, shirt, and shoes, and was the same height. Tr. 275. Moneer testified that he

“just knew that’s him.” Tr. 275.

{¶9} On cross-examination, Moneer testified that he was able to recognize

the victim immediately, but he did not know the man. Tr. 285. On redirect,

Moneer identified the assailant’s shorts as being black denim shorts. Tr. 293. The

man was carrying a white shirt in his hand when he ran off. Tr. 293.

{¶10} Patrolman George Caldwell (“Caldwell”) of the Lima Police

Department was the fourth witness to testify for the State. Tr. 296. Caldwell

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testified that on June 21, 2012, he was dispatched to the 200 block of South

Jackson Street in reference to an assault. Tr. 297. He was dispatched at around

10:00 p.m. Tr. 297. When he arrived, the victim was sitting on the street being

treated by the paramedics and a witness. Tr. 297. Caldwell testified that he took a

statement from Moneer. Tr. 298. Moneer told him that the assailant was a black

male who was wearing denim shorts and carrying a white t-shirt. Tr. 298. As

Caldwell was speaking to Moneer, Moneer told him that he had just seen the man

walking on Eureka Street after crossing Jackson Street. Tr. 299. Caldwell then

radioed that a possible subject was heading east and provided a description of the

clothing he was wearing. Tr. 300-301. The description of the clothing was

provided to Caldwell by Moneer prior to Moneer seeing the man walking on

Eureka Street. Tr. 301. Caldwell then learned that another patrolman had

approached the defendant and he ran before being apprehended. Tr. 301.

Caldwell did not go after the suspect, but instead went to the hospital with the

victim. Tr. 301.

{¶11} At the hospital, Caldwell was able to get information from the

victim, which he passed on to the detectives. Tr. 303. Caldwell also confiscated

the victim’s clothing and the linens from the ambulance as evidence. Tr. 303.

Caldwell identified State’s Exhibit 3 as the underwear taken from the victim. Tr.

305.

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{¶12} The next witness for the State was Patrolman Shane Huber (“Huber”)

of the Lima Police Department. Tr. 310. On the night of June 21, 2012, Huber

was assigned to street patrol. Tr. 311. On that night, Huber received a description

of a suspect in a rape case. Tr. 312. The description of the suspect was that he

was wearing shorts and carrying white t-shirt in his hands. Tr. 312. At the

intersection of Pine and Eureka, Huber saw an individual that matched that

description. Tr. 313. That individual was walking east when Huber saw him. Tr.

313. Huber then shined his spotlight on Lundy and told him to stop. Tr. 314. The

individual then ran away by going through yards and attempting to evade capture.

Tr. 314. Huber chased the man for three to four blocks before apprehending the

man. Tr. 315. When Huber caught him, the man was carrying a white t-shirt and

was wearing shorts. Tr. 316. The individual was transported to the station and his

clothing was confiscated as potential evidence. Tr. 317. The individual was

identified as Lundy. Tr. 313.

{¶13} Huber identified State’s Exhibit 7 as a “white tank undershirt” taken

from Lundy. Tr. 318. State’s Exhibit 8 was identified as a pair of denim shorts

also taken from Lundy. Tr. 318. State’s Exhibit 9 was identified as a pair of

Hanes striped boxer shorts taken from Lundy. Tr. 319. Huber also identified

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State’s Exhibit 11 as a white t-shirt that had been in Lundy’s hands when he was

apprehended.1 Tr. 319.

{¶14} Patrolman Jason Warren (“Warren”) of the Lima Police Department

testified that he transported Lundy to the station after he was arrested by Huber.

Tr. 330. When he arrived, Lundy was holding a white t-shirt in his hands. Tr. 33.

The t-shirt was placed in a bag in the trunk of his cruiser. Tr. 330. Once he

arrived at the station, the bag was turned over to Huber and Lundy was placed in a

holding room. Tr. 331. While processing Lundy, Warren noted that the zipper on

Lundy’s shorts was down. Tr. 332.

{¶15} Patrolman Zack Leland (“Leland”) of the Lima Police Department

testified that he was working the desk when Lundy was at the station. Tr. 335. He

was assigned to watch Lundy in the bathroom. Tr. 335. When he arrived in the

restroom, Lundy was using wadded up toilet paper to rub his nose and face area.

Tr. 337. After Lundy had finished using the restroom, he started washing his

hands and face before Leland stopped him. Tr. 337. Leland documented that

Lundy had been able to possibly destroy evidence in a report. Tr. 338.

{¶16} Officer Michael Carmen (“Carmen”) was the eighth witness for the

State. Carmen testified that he is an Identification Officer for the Lima Police

Department. Tr. 346. On June 21, 2012, he received a call at approximately 10:15

1 There were two different white shirts taken from Lundy.

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to respond to a crime scene. Tr. 349. He went to the two hundred block of South

Jackson near the riverwalk. Tr. 350. Carmen started processing the scene by

taking photographs. Carmen testified that they found an open condom wrapper

and a white towel with what appeared to be blood on it at the scene. Tr. 356.

After processing the scene under the bridge, Carmen went up to the victim’s home

to process that scene. Tr. 359.

{¶17} Like the scene by the riverwalk, Carmen started processing the scene

at the house by taking multiple photographs. Tr. 360. At the house, Carmen

observed drops of blood on the metal black iron railing and on the cement. Tr.

362. Carmen noted that the window was no longer in place as it had been

removed. Tr. 366. Carmen noted that there was a blood smear on the door frame

leading into the kitchen. Tr. 367. While working the scene, Carmen’s attention

was brought to footprints in the alley behind the home. Tr. 371. Carmen took

casts of the prints and compared them to Lundy’s shoes, but they did not appear to

match. Tr. 373.

{¶18} When Carmen returned to the station, he began processing evidence

from Lundy. Tr. 374. Carmen took swabs from Lundy’s penis, and the swabs

were identified as State’s Exhibit 1.1. Tr. 374-75. State’s Exhibit 1.3 were swabs

from Lundy’s right hand and Exhibit 1.4 were swabs from Lundy’s left hand. Tr.

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377. State’s Exhibit 1.5 was a buccal swab to obtain a DNA standard from Lundy.

Tr. 377.

{¶19} The ninth witness for the State was the victim. The victim testified

that on the night of June 21, 2012, she and Hammond were sitting on the front

porch, listening to music, and drinking beer. Tr. 409. Around 9:00 p.m., the

victim left with a relative to get more beer. Tr. 410. When she got back from the

carryout, she walked from the relative’s home to hers carrying the beer. Tr. 410.

The victim saw a man standing on the front porch talking to Hammond, but she

did not know the man. Tr. 411. The victim then went in the house to put the beer

away and asked Hammond, who had followed her into the house, who the man

was. Tr. 411. They realized that neither of them knew him. Tr. 411. They

returned to the porch and continued talking, but the man started giving her odd

looks. Tr. 411. Hammond then asked him to leave and a fight started. Tr. 412.

The man punched Hammond while on the steps and the fight continued into the

yard. Tr. 413. The victim kept telling the man to quit hitting Hammond. Tr. 413.

The man then turned and started punching the victim in the face while she was

outside. Tr. 413, 415. The victim identified the man who struck her and

Hammond as Lundy. Tr. 414. The victim then tried to run away to a neighboring

home when Lundy struck her again, grabbed her by the arm and started to drag her

up the steps toward the house. Tr. 415. Lundy took her into the home, but when

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he turned to lock the door, the victim ran towards the back door to try and escape.

Tr. 415. The victim testified that she got as far as the neighbor’s drive before

Lundy grabbed her again and punched her a couple more times. Tr. 416.

{¶20} After Lundy caught the victim, he began dragging her toward the

riverwalk. Tr. 416. The victim attempted to escape again, but was too

disoriented from the blows to be successful. Tr. 416-17. Lundy then took her to

beneath the railroad overpass on the riverwalk. Tr. 417. The victim testified that

Lundy pulled down her pants and had intercourse with her. Tr. 418. When she

started crying, Lundy threatened to strike her again and then forced her to engage

in anal sex. Tr. 418. The victim testified that she then heard Prinzi calling her and

saw the flashlight. Tr. 418. Lundy then pulled away from her and she started

running towards Prinzi. Tr. 418. The victim testified that while Lundy was doing

this, she was crying. Tr. 420. When Prinzi was coming towards her, Lundy took

off running in the opposite direction. Tr. 421. The victim looked over and saw

Prinzi and Moneer coming towards her, so she tried to pull up her pants and get to

them. Tr. 422. The victim testified that she told them that Lundy had raped her.

Tr. 422.

{¶21} After the ambulance and police arrived, the victim was taken to the

hospital. Tr. 422. At the hospital, a sexual assault examination was completed

and photographs were taken of the victim’s injuries. Tr. 4287. The victim

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identified State’s Exhibits 39-47 as photographs of her taken that night. Tr. 429.

The photographs showed the injuries to her head and face, the bruising to her

hand, scratches on her arms and legs, and bruising on her legs. Tr. 429-32. Prior

to the incident, the victim’s body did not have those injuries. Tr. 432. The victim

was discharged from the hospital and went to a relative’s home. Tr. 433.

{¶22} At the relative’s home, a police detective brought her a file with six

different mug shots. Tr. 433. The victim testified that she identified the picture of

Lundy as her attacker. Tr. 433. The victim testified that she was positive which

person was the assailant as soon as the detective set the pictures down. Tr. 434.

{¶23} On cross-examination, the victim admitted that she had been

drinking that evening. Tr. 435. She estimated that she had drank six beers and

Hammond had drank approximately ten or eleven beers before she went to the

carryout for more. Tr. 436. The victim was shown the photo line-up at around

4:00 a.m. Tr. 443. The victim admitted that she only looked at the photo line-up

for around two seconds before identifying Lundy. Tr. 444. On redirect, the victim

testified that she had gotten a good look at her assailant. Tr. 445.

{¶24} The next witness for the State was Detective Sean Neidemire

(“Neidemire”) of the Lima Police Department. Tr. 446. Soon after 10:00 p.m.

Neidemire received a call to respond to the scene of a rape. Tr. 448-49. Before

going to the scene, he went to the hospital, spoke to the victim, and took

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photographs of injuries. Tr. 449. Neidemire then went to the scene and checked

in with Carmen to see if he needed assistance. Tr. 451. No assistance was needed,

so he did not assist in gathering evidence. Tr. 451. Neidemire then returned to the

police station and assembled a photo line-up. Tr. 451. Neidemire identified

State’s Exhibit 71 as the photo line-up that he prepared. Tr. 452. Neidemire then

testified to the procedure he used to make the line-up. Tr. 452-53. At around 2:45

a.m., Neidemire went to see the victim and showed her the photo line-up he had

prepared. Tr. 456-57. After he told the victim that the suspect may or may not be

in the photos, he set the line-up down on the table. Tr. 457. The victim then

pointed to the photo of Lundy and said “That’s him, that’s the man who assaulted

me and that’s the man that raped me.” Tr. 457. There was no hesitation on the

part of the victim in identifying Lundy as the assailant. Tr. 457. The photo

identified was a photo of Lundy. Tr. 458. Prior to showing the victim the line-up,

Neidemire did not tell the victim anything about the suspect or even that they had

one. Tr. 459.

{¶25} Christina Umfleet (“Umfleet”) testified that she is a registered nurse

at Lima Memorial Hospital and works in the emergency room. Tr. 485-86. The

victim was brought into the emergency room by the paramedics for an alleged

assault. Tr. 487. When the victim arrived, Umfleet noticed that her face was

“swollen, bruised, and bloody, kind of unrecognizable to be a normal person by

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her face.” Tr. 488. The victim was able to communicate, but her face and jaw

were so swollen that she could barely open her mouth. Tr. 488. When questioned,

the victim indicated that she had been sexually assaulted. Tr. 490. Umfleet

testified that although she is not a certified Sexual Assault Nurse Examiner, there

was not one on duty at the time, so she did the exam and followed the instructions

on the rape kit. Tr. 493-94. Umfleet testified that she completed every step that

pertained to the victim. Tr. 499. When Umfleet questioned the victim, the victim

told her that there had been vaginal and anal penetration by the suspect’s penis.

Tr. 500-501.

{¶26} The next witness was Detective Scott Leland (“Det. Leland”) of the

Lima Police Department. Tr. 515. Det. Leland testified that he was called at

home to help investigate a crime at approximately 10:00 p.m. on June 21, 2012.

Tr. 516. After learning the basics of what had happened while at the station, Det.

Leland went to the hospital to speak with the victim and Hammond. Tr. 518. Det.

Leland spoke with Hammond first, who appeared intoxicated, but was also bloody

and “pretty beat up.” Tr. 519. Hammond was very upset that he had not been able

to protect the victim. Tr. 519. Then Det. Leland spoke to the victim, who was

“banged up” and appeared to be in pain. Tr. 520. The victim told him that she did

not know her assailant. Tr. 520. She was able to give him a basic overview of

what had happened, including that she had been physically assaulted, dragged into

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the house, dragged down to the riverwalk, and sexually assaulted both vaginally

and rectally. Tr. 521.

{¶27} From the hospital, Det. Leland went to the riverwalk and the house to

get a view of the scene. Tr. 521. He testified that he did not touch anything at the

scenes and did not spend much time there. Tr. 522. While walking the crime

scene, it occurred to him that a new shift had come on and he wanted to make sure

that they were aware that Lundy could not be given the ability to “wash up.” Tr.

523. He called the station to tell them, but learned it was too late. Tr. 523.

{¶28} Back at the station, Det. Leland prepared an affidavit for a search

warrant of Lundy’s person. Tr. 523. The warrant was issued by a judge the

morning of June 22, 2012. Tr. 527. At that time, Carmen obtained the evidentiary

samples from Lundy. Tr. 527. Det. Leland testified that numerous pieces of

evidence were submitted to the Ohio Bureau of Criminal Identification and

Investigation (“BCII”) for tests for blood and DNA analysis. Tr. 532-34.

{¶29} Julie Cox (“Cox”) is a forensic scientist at BCII and is assigned to

the forensic biology unit. Tr. 562. She examines evidence submitted for the

presence of bodily fluids, such as blood, semen, and saliva. Tr. 563. Cox

identified State’s Exhibit 63 as her report dated June 29, 2012. Tr. 567. Cox

testified there was no blood on the penile swabs or right hand swabs taken from

Lundy, but there was blood present on the left hand swab. Tr. 571-76. The swabs

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indicated that no semen was present on the vaginal or anal swabs of the victim.

Tr. 578-79. An examination of the victim’s underwear was also negative for the

presence of semen. Tr. 584.

{¶30} Cox also identified State’s Exhibit 65 as her report from September

14, 2012. Tr. 586. For this report, Cox was asked to examine a small towel or

washcloth, a shirt from Lundy, and shorts from Lundy for the presence of blood.

Tr. 586. All three of the items tested positive for the presence of blood. Tr. 589,

592, and 593. Cox then took samples and sent them for DNA testing. Tr. 594.

{¶31} The third report completed by Cox was done on October 1, 2012, and

identified as State’s Exhibit 66. Tr. 597. The item examined for blood in this

report was Lundy’s boxer shorts. Tr. 597. The boxer shorts tested positive for

blood in the fly area. Tr. 598-99. The stain was submitted for DNA testing. Tr.

599. On cross-examination, Cox admitted that she did not test every piece of

evidence. Tr. 606, 612.

{¶32} The final witness for the state was Sarah Smith (“Smith”), a forensic

scientist for BCII in the DNA section. Tr. 632. Smith identified State’s Exhibits

64 and 67 as her reports. Tr. 644. The date on State’s Exhibit 64 was August 29,

2012. Tr. 644. The date on State’s Exhibit 67 as November 1, 2012. Tr. 645.

State’s Exhibit 64 was the results of DNA testing of the swabs from Lundy, the

rape kit of the victim, and DNA standards from Lundy, the victim, and Hammond.

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Ex. 64. The results indicated that the DNA profile from the penile swabs was a

mixture consistent with contributions from Lundy and the victim. Tr. 646. The

statistical weight was that there was a 1 in 12,610 chance that the DNA found

came from the victim and Lundy. Tr. 649.

{¶33} Smith’s report labeled State’s Exhibit 67 analyzed DNA samples

from the rape kit of Lundy, the rape kit of the victim, the cloth found on the

riverwalk, the shirt taken from Lundy, the shorts taken from Lundy, and the

underwear taken from Lundy. Ex. 67. Smith testified that the blood stain on the

cloth came from the victim. Tr. 655. The expected frequency occurrence of the

DNA profile coming from someone other than the victim was one in four hundred

sixty-two quintillion, five hundred quadrillion (462,500,000,000,000,000,000).

Tr. 655. The blood stains from the shirt were consistent with the DNA profile of

Hammond as well as Lundy. Tr. 657-58. The odds of those blood stains coming

from anyone other than Hammond and Lundy were one in sixteen quintillion,

seven hundred-thirty quadrillion (16,730,000,000,000,000,000). Tr. 658. Smith

testified that the population of the world is approximately seven billion, so she

would not expect to see the profile she found in another individual. Tr. 659. The

test results for the swabs taken from the outside of the shorts indicated that a DNA

mixture was found belonging to Lundy and the victim. Tr. 660-61. The

likelihood that the mixture came from anyone other than Lundy and the victim

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was one in thirty-one million, eight hundred eighty thousand (31,880,000). Smith

also tested the DNA swabs from Lundy’s underwear. Tr. 662-63. The tests

revealed a mixture consistent with Lundy and the victim being the source. Tr.

663. The statistical weight of this test was one in two thousand, three hundred and

fifty-seven (2,357). Tr. 663.

{¶34} The State then questioned Smith concerning the reports from

Lundy’s independent DNA examination of the samples. Tr. 665-78. Smith had

prepared a report comparing the test results from BCII to those from the DNA

Diagnostics Center (“DDC”) and it was identified as State’s Exhibit 69. Tr. 679.

The chart was a summary of the results. Tr. 680. DDC’s report could not exclude

the victim as a source of the DNA found on the penile swabs. Tr. 681-82. Smith

testified that although her tests excluded the victim and Hammond as sources of

DNA on the swab from Lundy’s left hand, the DDC tests did not exclude the

victim as a source. Tr. 685. Additionally, the statistical weights to be assigned to

the tests were different in various tests. Tr. 686. In general, the report from DDC

was not inconsistent with that of BCII. Tr. 686.

{¶35} On cross-examination, Smith testified that the higher the statistical

weight, the higher the confidence in the conclusion is. Tr. 692. The statistics

mean nothing other than the level of confidence in the result. Tr. 699. Smith also

testified that she did not know what equipment DDC was using for testing. Tr.

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697. She also testified that she did not know the quality of the samples tested by

DDC. Tr. 697-98. Smith explained on redirect that the results may depend on

where the swab was taken from the sample as not every portion of a sample will

have the same amount of DNA. Tr. 703. Following this testimony, the State

rested its case. Tr. 707.

{¶36} Lundy presented the testimony of one witness during his case-in-

chief. Stacy Martin (“Martin”), who works for DDC. Tr. 714. Martin identified

State’s Exhibits 68 and 68a as reports that she prepared and that they were dated

August 8, 2013. Tr. 718. Martin testified that 68a was a supplement to 68

because some of the statistical results were changed as a result of clerical error.

Tr. 719-21. Martin testified that she was hired by Lundy to conduct independent

DNA testing on various items also tested by BCII. Tr. 722. Tests were run on the

penile swab, Lundy’s left hand swab, two stains from Lundy’s shorts, one stain

from Lundy’s underwear, and the three reference standards. Tr. 723. As for the

penile swab, the testing revealed that for the non-sperm fraction of the DNA,

Martin identified a mixed profile from which Lundy, the victim and a third party

could not be excluded. Tr. 725. The statistical weight given to this conclusion

was one in ninety-seven (97). Tr. 725. Martin testified that this number was not

very high. Tr. 725.

-20- Case No. 1-13-52

{¶37} Next, Martin tested the samples taken from the left hand swab of

Lundy. Tr. 725-26. The test results indicated that DNA consistent with that of

Lundy as the major contributor and the victim as a minor contributor was present.

Tr. 726-27. The statistical weight given to the possibility of someone other than

the victim being a minor contributor was put at one in twenty-one (21) individuals.

Tr. 727.

{¶38} The third item tested by DDC was two stain samples from Lundy’s

shorts. Tr. 727. A review of the non-sperm faction of the stains indicated that two

or more individuals contributed DNA to the sample. Tr. 728. Martin testified that

Lundy and the victim could not be excluded as contributors. Tr. 728-29. The

statistical probability of other individuals contributing was placed at one in one

hundred and seventy thousand (170,000). Tr. 729. According to Martin, this does

not rise to the level of “scientific reasonable certainty” because to reach that level

“you’d have to exceed the population of the earth, which is approximately seven

billion.” Tr. 729. The second stain was also tested. Tr. 729. In the non-sperm

fraction of the stain, the tests revealed a mixture of three or more contributors. Tr.

730. Lundy and the victim could not be excluded as contributors to the mixture.

Tr. 730. The statistical probability of a random person being a contributor was

“approximately one in forty-four” (44) individuals. Tr. 730.

-21- Case No. 1-13-52

{¶39} The last item tested by Martin was a stain from Lundy’s underwear.

Tr. 731. The non-sperm fraction again showed a mixture of three or more

individuals. Tr. 731. Lundy and the victim could not be excluded as contributors.

Tr. 731. The statistical weight assigned was one in two hundred and sixty (260)

individuals. Martin testified that this is a very low level of confidence. Tr. 731.

Martin also testified that although her statistics differed from those of BCII, the

results were consistent. Tr. 734. Martin’s conclusion was that she could not say

with scientific certainty that the victim was a contributor to the DNA mixture

found on the underwear. Tr. 736-37. Martin also testified that any probability

below one in seven billion was not scientifically certain. Tr. 737.

{¶40} On cross-examination, Martin testified that she had reviewed BCII’s

results. Tr. 767. After reviewing BCII’s reports, Martin had no reason to believe

that BCII’s results were incorrect. Tr. 767-68. Martin agreed that although the

statistical weight may be different, the conclusion whether to exclude or not was

the same. Tr. 768. Following this testimony, Lundy rested.

{¶41} The jury returned guilty verdicts on all four charges. R. 204-208.

The trial court entered a judgment accepting the verdicts on August 9, 2013. R.

208. On September 9, 2013, a sentencing hearing was held. R. 217. The trial

court found that none of the convictions merged.

The trial court then imposed

a sentence of eleven years in prison for each of the rape convictions and nine years

-22- Case No. 1-13-52

in prison each for the kidnapping and aggravated burglary convictions.

The

sentences were ordered to be served consecutively.

Lundy filed his notice of

appeal on October 8, 2013. R. 219. On appeal, Lundy raises the following

assignments of error.

First Assignment of Error

The trial court committed error in not merging the offenses of two counts of rape, aggravated burglary and kidnapping.

Second Assignment of Error

The trial court committed error in not granting [Lundy’s] challenge to the preemptory strike of an African American female from the jury.

Third Assignment of Error

[Lundy’s] convictions were against the manifest weight of the evidence and based upon insufficient evidence.

Fourth Assignment of Error

[Lundy’s] sentence is contrary to law.

Fifth Assignment of Error

[Lundy] received ineffective assistance of counsel.

In the interest of clarity, the assignments of error will be taken out of order.

{¶42} In the second assignment of error, Lundy claims that the trial court

erred in allowing the State to use a preemptory challenge to remove an African-

American from the jury in violation of Batson v. Kentucky,

, 106 S.Ct.

-23- Case No. 1-13-52

1712,

. In Batson, the U.S. Supreme Court held that African-

American defendants are denied equal protection under the law when they are

tried before a jury from which other African-Americans have been purposely

excluded.

“Although a prosecutor ordinarily is entitled to exercise permitted

peremptory challenges ‘for any reason at all, as long as that reason is related to his

view concerning the outcome’ of the case to be tried, United States v. Robinson, *

* * the Equal Protection Clause forbids the prosecutor to challenge potential jurors

solely on account of their race or on the assumption that black jurors as a group

will be unable impartially to consider the State’s case against a black defendant.”

.

“ ‘A court adjudicates a Batson claim in three steps.’ ” State v. Bryan,

,

,

, ¶ 106, quoting State v. Murphy (2001),

,

. “First, the opponent of the peremptory challenge must make a prima facie case of racial discrimination. Second, if the trial court finds this requirement fulfilled, the proponent of the challenge must provide a racially neutral explanation for the challenge. Batson, 476 U.S. at 96–98,

,

.”

Third, the trial court must decide, based on all the circumstances, whether the opponent has proved purposeful racial discrimination.

,

.

State v. Frazier,

,

,

, ¶ 64. A

determination by the trial court that there is no discriminatory intent by the State

will not be reversed absent an abuse of discretion.

-24- Case No. 1-13-52

In step three, the trial court may not simply accept a proffered race-neutral reason at face value, but must examine the prosecutor’s challenges in context to ensure that the reason is not merely pretextual. “[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it.” Miller–El v. Dretke (2005),

, 251–252,

,

. If the trial court determines that the proffered reason is merely pretextual and that a racial motive is in fact behind the challenge, the juror may not be excluded.

,

,

.

Id. at ¶65.

{¶43} During the voir dire of this case, the State used a preemptory

challenge to remove an African-American juror from the jury, leaving the jury

with no African-American members. Counsel for Lundy objected claiming a

violation of his right to be tried by a jury of his peers pursuant to Batson. Counsel

pointed out that the only other potential African-American juror was “well down

the list.” Tr. 138. The State presented the following race-neutral reason.

[S]ome of the family members that the uh, the juror listed, including - - in particular uh, her children’s last name is Harmon and her son’s name is [A.H.], Junior, who in speaking with Detective Leland and Miss Emerick, our office has prosecuted Mr. Harmon [Sr.] on a number of occasions. He’s got many, many criminal things in his past; not to say that she does, but that causes us serious concern about whether she would be fair and impartial from [our] standpoint. Nothing as far as challenging for cause.

But also again, the name Brownlow, there are a number of Brownlows uh, that the State has prosecuted in the past. I’m sure the Court’s aware, particularly Easter Brownlow and

-25- Case No. 1-13-52

Cornelius Brownlow. Again, not necessarily as an indication on the record that she is related to them, but not trying to take that chance, and certainly not wanting to point it out to her uh, embarrass her or anything like that. The State, quite frankly, just doesn’t feel comfortable having her as a juror. And it has nothing to do with her race, but her associates.

Tr. 140. The trial court then made a determination that there was no pattern of

discrimination as required by Batson to shift the burden of proof to the State. Tr.

143. However, the trial court continued and found that even if the burden had

shifted to the State, the State had put forth a race neutral reason for the challenge.

Tr. 143. The trial court then overruled the challenge. A review of the record

indicates that the State did provide a logical, race-neutral reason for the challenge.

Thus, we cannot conclude that the trial court’s ruling was an abuse of discretion.

The second assignment of error is overruled.

{¶44} In the third assignment of error, Lundy claims that the verdicts of the

trial court were not supported by sufficient evidence and were against the manifest

weight of the evidence.

Every criminal prosecution requires proof that the person accused of the crime is the person who committed the crime. This truism is reflected in the state’s constitutional burden to prove the guilt of “the accused” beyond a reasonable doubt. * * * Like any fact, the state can prove the identity of the accused by “circumstantial or direct” evidence. * * * The relevant question in a sufficiency-of-the-evidence review is whether, “after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”

-26- Case No. 1-13-52

State v. Tate, ___ Ohio St.3d ___,

, ___ N.E.2d ___, ¶ 15

(citations omitted).

{¶45} In this case, Lundy was charged with four counts – two counts of

rape, one count of kidnapping, and one count of aggravated burglary. To prove

the two counts of rape, the State was required to prove that Lundy engaged in

sexual conduct with the victim by force or threat of force. R.C. 2907.02(A)(2).

The definition for sexual conduct includes vaginal intercourse and anal

intercourse. R.C. 2907.01(A). The testimony at trial by the victim was that Lundy

struck her several times, then forced her to go to a secluded location. Lundy

threatened to strike her again if she fought. At that location, he pulled down her

pants and penetrated her both vaginally and anally with his penis. The victim

identified Lundy both outside of court and in court as her assailant. Both Moneer

and Prinzi testified that they saw a man forcing the victim to engage in anal

intercourse and that when he saw them, he took off running. The pictures of the

victim submitted to the jury showed the injuries to the victim’s body caused by

Lundy using physical force against her. DNA testing revealed mixed DNA from

penile swabs taken from Lundy and stains from Lundy’s underwear. The tests

could not exclude Lundy and the victim as the source of the mixed DNA.

Viewing this testimony in a light most favorable to the State, a reasonable juror

could conclude that Lundy had engaged in sexual conduct with the victim and that

-27- Case No. 1-13-52

he did so by means of force or the threat of force. Thus, the rape convictions are

supported by sufficient evidence.

{¶46} The third count of the indictment charged Lundy with kidnapping.

To prove the kidnapping charge, the State was required to prove that Lundy by

force, threat, or deception removed the victim from one place or restrained the

victim’s liberty for the purpose of engaging in sexual activity with the victim.

R.C. 2905.01(A)(4). The victim testified that Lundy struck her repeatedly and that

when she tried to run away, he dragged her into her home and locked the door.

She ran away again, only to be caught and struck again. Lundy then grabbed her

arm and forced her to walk to a secluded location. At that location, Lundy held

her and engaged in sexual conduct with her. The witness testified that she tried to

get away, but she could not do so. The victim also testified that Lundy told her as

he was hitting her that she “should have gave up the pussy in the first place, then

none of that would have happened.” Tr. 416. The victim stated that while Lundy

was engaged in sexual conduct, she was crying and he threatened to strike her

again if she did not stop. Tr. 418. Moneer testified that he heard the victim tell

Lundy to let her go, but he dragged her away. Viewing this evidence in a light

most favorable to the State, a reasonable juror could conclude that Lundy forced

the victim into her home so that he could engage in sexual activity with her, but

when she got away, he then forced her to go to a secluded location so that he could

-28- Case No. 1-13-52

engage in sexual activity with her. A reasonable juror could also conclude that the

victim only went with Lundy because he used force and threatened to use more

force if she did not comply. The conviction for kidnapping was supported by

sufficient evidence.

{¶47} Finally, Lundy was charged with one count of aggravated burglary.

To prove this charge, the State was required to prove that Lundy entered the

victim’s house by force with the purpose to commit a criminal offense and that he

inflicted and threatened to inflict physical harm on another. R.C. 2911.11(A)(1).

The testimony of Hammond was that Lundy struck him repeatedly until he passed

out. At that point, Lundy turned and started striking the victim. When she tried to

escape, he grabbed her and forced her into the home, where he turned and locked

the front door. Prinzi testified that when he went to the house, the front door was

locked and he had to break into the house by removing a window. Based upon

Lundy’s prior use of force against Hammond and the victim, and the fact that

when the victim tried to run away, Lundy stopped her and forced her into the

home, a reasonable juror could conclude that when Lundy entered the house and

turned to lock the door, he did so with the purpose of committing a criminal

offense. This inference is further supported by the subsequent actions of Lundy

against the victim. Given this evidence and viewing it in a light most favorable to

-29- Case No. 1-13-52

the state, the evidence was sufficient to support a conviction for aggravated

burglary.

{¶48} Lundy also claims that the convictions were not supported by the

manifest weight of the evidence. Unlike sufficiency of the evidence, the question

of manifest weight of the evidence does not view the evidence in a light most

favorable to the prosecution.

Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.”

State v. Thompkins,

,

(1997) (citing

Black’s Law Dictionary (6 Ed. 1990) 1594). A new trial should be granted only in

the exceptional case in which the evidence weighs heavily against conviction.

Although the appellate court acts as a thirteenth juror, it still must give due

deference to the findings made by the jury.

The fact-finder, being the jury, occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness’ reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord

-30- Case No. 1-13-52

due deference to the credibility determinations made by the fact- finder.

State v. Thompson,

,

(8th Dist. 1998).

{¶49} As discussed above, the rape charges were supported by the

testimony of the victim, the DNA results which indicates that the victim’s DNA

was found on Lundy’s penis, the DNA results which indicate that Hammond’s

blood was found on Lundy’s clothes,2 the testimony of Prinzi and Moneer about

what they saw, and the photographs of the injuries to the victim and to Hammond.

Although Lundy presented evidence that the statistical weight of the DNA

findings were low, even his own expert’s testing indicated that the victim could

not be excluded as one of the sources in the mixture of DNA found not only on

Lundy’s underwear, but on his penis as well. Given the evidence in this case, this

court does not find that the evidence weighs heavily against conviction on the two

rape charges.

{¶50} Similarly, the kidnapping charge is also supported by the evidence.

The victim testified to two separate instances when Lundy forced her to go with

him. One of these instances was witnessed by Moneer as well. The victim

testified that as Lundy was walking her to the riverwalk, he basically told her he

was going to sexually assault her, thus establishing his intent in moving her to a

2 Although this does not show that a rape occurred, it supports the version of events told by Hammond and the victim, and indicates that Lundy was indeed the person who engaged in a physical altercation with Hammond, thus helping establish identity.

-31- Case No. 1-13-52

secluded location. Prinzi was able to testify to the fact that the front door was

locked, although normally the victim did not lock it if she was home, which

supported the testimony of the victim. Hammond testified to Lundy assaulting

him and knocking him unconscious. The victim was found with Lundy, who took

off running when Prinzi and Moneer came near, and the victim ran to them crying

that she had been raped. All of this evidence along with the obvious signs of

physical force that had been used on the victim supports the conviction for

kidnapping. Thus, the conviction is not against the manifest weight of the

evidence.

{¶51} Finally, Lundy was convicted of aggravated burglary. As discussed

above, there was evidence that Lundy trespassed into the home by force, i.e.

dragging the victim after striking her several times and knocking out the other

resident of the home. Lundy then took the time to lock the door to keep others

out, indicating that he intended to commit some act for which he wanted privacy.

Although Lundy was not successful at engaging in sexual activity in the home due

to the victim’s escape, the events which followed are evidence of what his intent

was. Viewing the evidence in total, this court does not find that the evidence

weighs heavily against conviction on the charge of aggravated burglary. For the

reasons set forth above, the convictions are not against the sufficiency of the

-32- Case No. 1-13-52

evidence or against the manifest weight of the evidence. The third assignment of

error is overruled.

{¶52} The first and fourth assignments of error both have to do with the

sentence imposed on Lundy by the trial court. In the first assignment of error,

Lundy claims that his convictions should all have merged as allied offenses of

similar import. The premier case on the current state of law in Ohio as it relates to

merger of allied offenses is State v. Johnson,

, 2010-Ohio-

6314,

. In Johnson, the defendant was convicted of felony

murder and child endangering due to the death of a child in her custody during

daycare. The Ohio Supreme Court reviewed the situation and set forth a new test

for determining whether offenses were allied offenses of similar import.

Under R.C. 2941.25, the court must determine prior to sentencing whether the offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offenses are subject to merger.

In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. Blankenship, 38 Ohio St.3d at 119,

(Whiteside, J., concurring) (“It is not necessary that both crimes are always committed by the same conduct but, rather, it is sufficient if both offenses can be committed by the same conduct. It is a matter of possibility, rather than certainty, that the same conduct will constitute commission of both offenses.” [Emphasis sic]). If the offenses correspond to such a degree that the conduct of the defendant constituting

-33- Case No. 1-13-52

commission of one offense constitutes commission of the other, then the offenses are of similar import.

If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” * * *

If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.

Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.

Id. at ¶ 47-51. Thus, the first step this court must take is to determine if breaking

and entering and attempted theft of a firearm can both be committed by the same

act.

{¶53} In this case, the State conceded the first part of the test, that it is

possible to complete each of these offenses with the same act. Thus, we will not

address the first portion of the test. This leaves us with one question: In this case,

were all four charges completed with the same conduct and with the same animus?

The answer to this question is no.

{¶54} The first two counts of the indictment were for rape. One of the

charges was for an instance of vaginal intercourse and the other was for an

instance of anal intercourse. According to the victim, Lundy first penetrated her

vaginally with his penis. When he was done, he told her he was going to rape her

-34- Case No. 1-13-52

anally. He then penetrated her anally with his penis. Since these were two

separate acts with separate animus, they are not allied offenses of similar import in

this case. Thus, the trial court correctly determined that these charges should not

merge with each other.

{¶55} The third count of the indictment was a kidnapping charge where

Lundy moved the victim by force or threat of force from one location to another

for the purpose of engaging in sexual conduct. The evidence in this case indicated

that after striking the victim multiple times with his fist, Lundy forced the victim

to go into the home. When she escaped, he caught her in Moneer’s driveway,

struck her again with his fists, and then forced her to walk to a secluded location

where he raped her twice. This is not a case where the kidnapping charge stems

from the restraint of the victim during the rape. The evidence in this case indicates

that Lundy forced the victim from one location to another with the intent to

commit a sexual assault. They were separate acts and had separate animus.

Therefore, the kidnapping charge does not merge with the rapes.

{¶56} Finally, we address the aggravated burglary charge. This offense

occurred when Lundy forced his way into the home with the intent to commit a

criminal offense. Clearly, this offense was not done at the same time as the two

rapes, which occurred on the riverwalk. They were separate and distinct in time

and space, and thus were not conducted by the same act and animus. Thus, it does

-35- Case No. 1-13-52

not merge with the rapes. As to the kidnapping charge, the aggravated burglary

could be the same act as the kidnapping charge, but it is not necessarily so in this

case. If Lundy was charged with kidnapping for forcing the victim into the house

with the intent of sexual assault, that may also be an aggravated burglary.

However, there are two separate and distinct instance of kidnapping aside from the

entry into the home: 1) When Lundy prevented the victim from running to her

mother’s home and 2) When Lundy forced the victim from Moneer’s driveway

down to the riverwalk. The jury was not instructed as to which act was the basis

of the charges, though multiple instances of attempted escape which were thwarted

by Lundy were cited during the State’s closing arguments. Without any clear

indication that the kidnapping was also the trespass into the house, the jury might

just have likely based its kidnapping verdict upon when Lundy prevented the

victim from running away before forcing her into the home or when he forced her

to leave Moneer’s driveway and walk down to the secluded spot on the riverwalk

where he raped her. Either one of these two instances would meet the necessary

elements to convict Lundy of kidnapping.3 Thus, the record does not clearly

indicate that the kidnapping charge is based upon the same conduct as the

aggravated burglary charge.

3 The fact that Lundy was not charged with multiple counts of kidnapping was merely the discretion of the State in determining what charges to bring.

-36- Case No. 1-13-52

{¶57} Since none of the above counts are based upon the same conduct and

all were conducted with a separate animus, they are not allied offenses of similar

import. Thus, they do not merge for the purposes of sentencing. The first

assignment of error is overruled.

{¶58} Lundy’s fourth assignment of error challenges that the sentence was

contrary to law because the trial court imposed maximum, consecutive sentences.

“A trial court’s sentence will not be disturbed on appeal absent a defendant’s

showing by clear and convincing evidence that the sentence is unsupported by the

record; the sentencing statutes’ procedure was not followed or there was not a

sufficient basis for the imposition of a prison term; or that the sentence is contrary

to law.” State v. Rust, 3d Dist. Marion No. 9-12-49,

. A

trial court has discretion to impose any sentence within the statutory range. State

v. Saldana, 3d Dist. Putnam No. 12-12-09,

. When

imposing a sentence on a felony conviction, the trial court must consider the

purposes of sentencing as set forth in R.C. 2929.11, and the sentencing factors set

forth in R.C. 2929.12. Additionally, in order to impose consecutive sentences, the

trial court must make specific findings on the record as set forth in R.C.

2929.14(C)(4). “Specifically, the trial court must find that (1) consecutive

sentences are necessary to either protect the public or punish the offender; (2) the

sentences would not be disproportionate to the offense committed; and (3) one of

-37- Case No. 1-13-52

the factors set forth in R.C. 2929.14(C)(4)(a, b or c) applies.” State v. Peddicord,

3d Dist. Henry No. 7-12-24,

.

{¶59} In this case, Lundy was conviction of four felonies of the first

degree. For felonies of the first degree, the prison term shall be between three and

eleven years. R.C. 2929.14(A)(1). Before imposing the sentence, the trial court

reviewed the record, oral statements, victim impact statements, and the pre-

sentence report. The trial court then made the following statements at the

sentencing hearing.

Now, getting to 2929.12, taking into consideration all of the information here, the Court would find there are factors indicating the defendant’s conduct to be more serious than conduct normally constituting the offenses and that is the harm, the physical and psychological harm suffered by the victims. I find in this case that is a factor that weighs heavily because the facts, from the evidence, it was shown, and the photos, for example, that showed. In not all Agg. Burglaries and not all Kidnappings and not all Rapes is there such physical harm caused to the victims. So, I find that it is more serious in this case.

I don’t find any of the factors indicating the defendant’s conduct to be less serious.

I find there are factors indicating the defendant is likely to commit future crimes. Perhaps in not the same analysis that the State is arguing in terms of his propensity to commit future crimes such as this, and I understand the argument that his prior record doesn’t include any sex offenses, but at the time of committing this offense he was on community control in the 2008 case. That’s clear. He does have a prior record. That’s clear. I would find that he has not responded favorably to sanctions

-38- Case No. 1-13-52

previously imposed. So, all of those are factors that indicate that he is likely to commit future crimes.

The best information I have, however, is he did not have a juvenile record, unless the State found something that the P.S.I. didn’t find.

***

It just said, ‘no known prior record’ in the P.S.I. as a juvenile. But, I will make that determination that I don’t have any information of a prior adjudication as a delinquent. That is a factor that is under 2929.12(E), a factor indicating the defendant’s not likely to commit future crimes.

There’s no way around the Court’s determination that I’m making at this point that these were crimes of violence, obviously, by definition, but also by facts. Again, I’m judging the actions of the defendant in making my determination on sentencing. Short of ending a life, or short of grotesque disfiguration, there’s not too many cases that I’ll ever confront that would show more violence than this case. Whether a victim is a male or a female, what has happened to the victims in this case, is very, very violent. The circumstances of this case, how it happened, where it happened, weigh heavily on the Court’s consideration in this case.

Sent. Tr. 37-39. The trial court then imposed sentences of eleven years in prison

for each of the rape counts and nine years in prison for the aggravated burglary

count and the kidnapping count. The trial court in its judgment entry of

sentencing specifically stated that it had considered the purposes and principles of

sentencing as set forth in R.C. 2929.11. R. 217. The trial court also addressed the

statutory factors set forth in R.C. 2929.12. Each of the sentences was within the

statutory range for felonies of the first degree and the trial court considered all

-39- Case No. 1-13-52

applicable factors and the principles of sentencing. Additionally, the record

supports the determinations of the trial court as to the factors. Thus, the trial court

did not err in imposing the maximum sentences as to the two rape counts.

{¶60} Lundy also challenges the imposition of consecutive sentences in this

case. The trial court in this case found as follows.

The Court is going to order all four counts to be consecutive to each other because the Court finds that consecutive sentences are necessary to protect the public from future crime and to punish the defendant and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and the danger the offender poses to the public. The Court also finds that the offender committed these offenses while he was on community control in the 2008 case and that the multiple offenses were all committed as part of one or more courses of conduct. I find the harm caused by the offenses was so great and unusual that a single prison term for any of the offenses committed as part of the course of conduct would not adequately reflect the impact on the victim. Consecutive sentences adequately reflect the seriousness of the conduct.

Sent. Tr. 40. These findings were reflected in the judgment entry of sentencing.

R. 217. These findings satisfy the requirements of R.C. 2929.14(C)(4) which

must be met for the trial court to impose consecutive sentences. Since the

requirements were met, the trial court did not err in ordering the sentences to be

served consecutively. The fourth assignment of error is overruled.

{¶61} Finally, Lundy argues that he was denied effective assistance of

counsel at trial.

-40- Case No. 1-13-52

In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester (1976),

,

,

, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel’s essential duties to his client. Next, and analytically separate from the question of whether the defendant’s Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness.” State v. Lytle (1976),

, 396–397,

,

, vacated on other grounds (1978),

,

,

.

On the issue of counsel’s ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio St .2d 299,

,

; State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun,

, 1999–Ohio–102, 714 N .E.2d 905.

{¶62} Lundy argues that his counsel was ineffective for making the

following statements. Lundy claims that counsel basically conceded that the State

was telling the truth in their opening statement and cites to the statement. Taken

in context, the alleged error was as follows.

Ladies and gentlemen, there’s a reason opening statements aren’t evidence because nothing’s been presented to you. Let me tell you what I think is gonna come out in this case.

About eighty percent of what Ms. Emerick was telling you about uh, [the victim] being attacked uh, about Mr. Hammond being attacked, all that, we’re not gonna contest that. This thing

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happened on June twenty-first of 2012, that’s not gonna be contested. Okay?

The problem that we have, and what I believe the evidence is gonna show is, it’s gonna show the two main things. One, this identification of who the assailant was, was flawed; was only done by one person, and is not reliable. In other words, what I believe the evidence is gonna show is that [the victim’s] identification of [Lundy] is not reliable enough for anyone to include [sic] that he was the assailant.

Tr. 198-99. Contrary to what Lundy is arguing, trial counsel did not concede the

case to the State. Instead, counsel was arguing that although the victim and Mr.

Hammond were attacked, it was not his client who committed the crime.

Considering the photos and medical reports concerning the condition of the victim

and Mr. Hammond after they were attacked, arguing that they were not attacked

would not have been credible. This court has no reason to believe that counsel’s

statement was not a reasonable trial strategy, and thus was not ineffective

representation.

{¶63} Lundy also claims counsel was ineffective by conceding the attack in

closing arguments. Again, the statements made by trial counsel, when taken in

context show a different perspective.

Obviously, in cases where we have lots of evidence, the State is correct, it does have the burden of proof on all elements. I am not gonna sit here and go through every single element with you because as far as the defense is concerned, not every single element is part of our defense.

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As Miss Emerick said, there’s always those questions, you know, what happened, where did it happen, when did it happen, how did it happen, and the who? And essentially she’s right as to almost everything that we’re talking about in that scenario, there aren’t questions of what happened; there’s no question in anyone’s mind that [the victim] was raped. There’s no question that she got chased through her house, uh, that she got dragged down to the river and raped. There is no question of what happened.

There’s no question of where. We all agree where it happened, we all agree it happened where she was living - - her house and the riverwalk near then (sic]. We all agree as to when, on June twenty-first of 2012. And the means by which it happened, it’s pretty obvious from the testimony, okay?

So all those things, we’re not sitting up here and telling you, you know, the State didn’t - - maybe they technically didn’t say exact time on the twenty-first of July of 2012, or anything like that. So none of those things are really what I consider important for purposes of the defense. They are, because you have to find everything, we understand that, but if [sic] assists you when you’re going through those elements when you deliberate, it’s much easier if, in my opinion, if you focus on the issues in places where there is real dispute.

And that is, the who. Okay? That’s the dispute in this case, that’s it. What we spent three, three and a half, four days doing is debating the who: not really debating, we’ve been presenting evidence, now we’re debating.

Tr. 806-807. Again, the theory of the defense throughout the case was that the

State had not proven beyond a reasonable doubt who was responsible for the

offense. This was a reasonable trial strategy. The testimony of the officers was

that Lundy denied involvement. The defendant’s version of events as stated in the

PSI was that he was in the area on the way to a friend’s home, but he denied

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committing the crime. At sentencing, Lundy again stated that he was innocent.

Given the repeated denial of the defendant as to his involvement, trial counsel’s

strategy was sound. The record does not indicate that trial counsel was

ineffective. The fifth assignment of error is overruled.

{¶64} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Allen County is affirmed.

Judgment Affirmed

ROGERS and SHAW, J.J., concur in Judgment Only as to Assignment of Error No. 1.

/jlr

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