[Cite as State v. Reynolds,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-16-1080

Appellee Trial Court No. CR0201501852

v.

Darnell Reynolds DECISION AND JUDGMENT

Appellant Decided: January 5, 2018

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.

Stephen D. Long, for appellant.

*****

MAYLE, J.

{¶ 1} Appellant, Darnell Reynolds, appeals the April 11, 2016 judgment of the

Lucas County Court of Common Pleas sentencing him to 33 years in prison. For the

following reasons, we affirm. I. Background and Facts

{¶ 2} On May 22, 2015, Reynolds was indicted on three counts of rape in violation

of R.C. 2907.02(A)(2) and (B) and one count of aggravated robbery in violation of R.C.

2911.01(A)(1), all first-degree felonies. Two of the rape counts and the aggravated

robbery count included firearms specifications under R.C. 2941.145. The charges

stemmed from the rapes of three victims in 2010 and 2011.

{¶ 3} The case was tried to a jury beginning April 4, 2016. The state presented the

testimony of 19 witnesses, including officers and detectives who investigated the

incidents underlying the indictment; three sexual assault nurse examiners (“SANE”);

three analysts from the Bureau of Criminal Investigation (“BCI”); the three victims; and

one victim’s mother. Reynolds also presented a witness. The following facts were

developed at trial.

A. August 4, 2010 Rape

{¶ 4} On August 3, 2010, B.B. (“victim 1”) was arrested for disorderly conduct

and taken to the Lucas County jail. She was released on August 4, 2010, around 3:00 or

4:00 a.m. She testified that while she waited outside the jail for a ride home she saw a

man walking back and forth in front of the jail. She described him as thin, African-

American, about her height, in his early 30s, and wearing a white tank top and black

shorts with a white stripe down the sides. She asked the man for a cigarette. When she

approached him, he put something hard that victim 1 believed was a gun against her back

and told her to walk or he would kill her. She said that they walked approximately a

2. quarter of a mile from the jail before he stopped at an abandoned building and told victim

1 to lie down. Victim 1 testified that the man removed her pants and underwear and then

penetrated her vagina with his penis. While he raped her, victim 1 said that the man

reminded her that he had a gun and told her that he would kill her. When the man

finished, he told victim 1 to run. She ran from the scene to the jail where she reported

that she had been assaulted. Officers took her in a police cruiser to find the scene of the

rape. When they found the building, the officers observed an area of matted grass and

found victim 1’s booking papers from the jail in the area where she reported that the rape

occurred.

{¶ 5} The officers then took victim 1 to Mercy St. Vincent Medical Center where

she underwent a rape examination. Victim 1 described what happened during the

examination, including the SANE swabbing her vagina and taking pictures of her

injuries.

{¶ 6} Tiffany O’Neal, the SANE who examined victim 1, testified. O’Neal

collected swabs for forensic testing, which she documented using a rape kit and

instructions provided by the state. O’Neal documented and took photographs of bruises

and abrasions on victim 1’s shoulder, back, and legs and two small vaginal tears. O’Neal

also swabbed victim 1’s vagina, anus, and mouth; took scrapings from under her

fingernails; and collected her clothes to include in the rape kit. The state asked O’Neal to

read victim 1’s account of the events that O’Neal documented in the rape kit paperwork.

3. Reynolds objected to the recitation, but the trial court overruled the objection based on

Evid.R. 803(6), the business records exception to the hearsay rule.

{¶ 7} On August 4 or 5, 2010, Detective Bonnie Weis of the Toledo Police

Department (“TPD”) was assigned to investigate the rape. Detective Weis testified that

she sent victim 1 a letter requesting an interview. Victim 1 scheduled an appointment

with Detective Weis for August 17, 2010, but did not appear. Victim 1 said that she did

not meet with Detective Weis because she wanted to forget about the rape and did not

want to talk about it. Detective Weis claimed that she did not know at the time that a

rape kit was collected. Because she did not have assistance from victim 1 or any physical

evidence, Detective Weis closed the case.

B. September 19, 2010 Rape

{¶ 8} H.S. (“victim 2”) was raped on September 19, 2010. She testified that her

memories of the circumstances surrounding the rape are unclear, but she clearly

remembers the rape itself. Victim 2 said that she went to visit her boyfriend at the Lucas

County jail around dusk that evening. She was unable to see him, so she decided to take

a walk to clear her head. While she was walking, she ran into a man she did not know.

She described him as African-American, in his late 20s or early 30s, and about five feet

seven inches tall. She said that the man somehow got her between a building and a semi-

truck and blocked her path so that she could not leave. The man got behind her, put

something hard against her back, and pulled down her pants and underwear. He leaned

her over a concrete loading dock and penetrated her vagina with his penis. When the

4. man finished raping victim 2, he left the scene on a bike, and victim 2 went back to the

jail to report the rape.

{¶ 9} Officers took victim 2 to Mercy St. Vincent Medical Center where she

underwent a rape examination. Victim 2 described what happened during the

examination, including the SANE swabbing her vagina and taking pictures of her

injuries.

{¶ 10} Julia Benfield, the SANE who examined victim 2, testified. Benfield

collected swabs for forensic testing, which she documented using a rape kit and

instructions provided by the state. Benfield documented and took photographs of bruises

on victim 2’s thigh and cervix; abrasions on her back, labia minora, and posterior

forchette; and some swelling and redness on her lower lip. Benfield also swabbed victim

2’s vagina, anus, and mouth; took scrapings from under her fingernails; collected head

and pubic hair samples; and collected her clothing to include in the rape kit. The state

asked Benfield to read victim 2’s account of the events that Benfield documented in the

rape kit paperwork. Reynolds did not object to the recitation.

{¶ 11} On September 20, 2010, Detective John Rose of the TPD was assigned to

investigate the rape. Detective Rose testified that he called victim 2 and left her a

message, but she did not respond to his request for an interview. Victim 2 recalled that

Detective Rose sent her a letter, but she did not respond because she did not want to talk

about the incident any more. Detective Rose said that he learned later that a rape kit was

collected, but he did not send it for testing because victim 2 was not cooperating with the

5. investigation. Although Detective Rose kept the case open for several months, he

eventually closed the case because he did not have assistance from victim 2 or any

physical evidence.

C. July 14, 2011 Rape

{¶ 12} In the early morning hours of July 14, 2011, D.W. (“victim 3”), a juvenile,

was walking near City Park in Toledo when a man, whom she identified at trial as

Reynolds, approached her on a bike. She testified that she saw the man clearly and

described him as brown-skinned with a medium build and wearing jean shorts, a white

tee shirt, and black tennis shoes. She said that the man tried to talk to her, but she

rebuffed him and kept walking. When she walked past him, he grabbed her from behind,

put a gun to her hip, and dragged her into an alleyway. He told her to do as he said or he

would kill her. The man told victim 3 to lie down under a semi-trailer in the alley. He

then put his gun on the ground by the trailer, crawled under the trailer, removed victim

3’s shorts and underwear, and penetrated her vagina with his penis. When he finished, he

urinated beside the trailer, picked up his gun, took victim 3’s cellphone from her, and left

the scene on his bike. Victim 3 went to a relative’s home nearby and called her mother,

who called the police.

{¶ 13} When the police arrived at the relative’s home, victim 3 told them what had

happened and took the officers to the location where she was raped. The officers found

victim 3’s cellphone charger under the semi-trailer and noticed a wet spot where the man

had urinated.

6. {¶ 14} The officers then took victim 3 to Mercy St. Vincent Medical Center for a

rape examination. Although victim 3 initially refused the exam, she consented after

speaking with Sara Ward, the SANE who examined her. Victim 3 described what

happened during the examination, including the SANE swabbing her vagina, scraping

under her fingernails, collecting samples of her hair, and taking pictures of scrapes on her

back.

{¶ 15} Ward explained the procedure in more detail. During the rape exam, Ward

collected swabs for forensic testing, which she documented using a rape kit and

instructions provided by the state. Ward documented and photographed a scratch on

victim 3’s left buttock. Ward also swabbed victim 3’s vagina, anus, and mouth; took

scrapings from under her fingernails; collected head and pubic hair samples; and

collected her clothing to include in the rape kit. The state asked Ward to read victim 3’s

account of the events that Ward documented in the rape kit paperwork. Reynolds did not

object to the recitation.

{¶ 16} On July 14, 2011, Detective Shelli Kilburn of the TPD was assigned to

investigate the rape. Detective Kilburn testified that she called victim 3’s mother and

scheduled an interview. Victim 3’s mother called Detective Kilburn the morning of the

interview and told her that victim 3 had run away from home, so she would not be at the

interview. Victim 3 recalled that she spoke to an officer at the hospital, but never

followed up with the police because she did not want to have to go to court. Detective

Kilburn told victim 3’s mother that she could not proceed with investigating the case

7. without victim 3’s cooperation. Detective Kilburn also testified that she knew that a rape

kit had been collected, but did not send it for testing because victim 3 was not

cooperating with the investigation. Although Detective Kilburn kept the case open, she

assigned it to inactive status because she did not have the victim’s cooperation.

D. Rape Kit Testing

{¶ 17} In 2012, the TPD sent all of its untested rape kits to BCI for testing in

response to the Ohio attorney general’s sexual assault kit initiative. The rape kits from

victim 1, victim 2, and victim 3 were among those sent to BCI. Detective Vincent Mauro

is a member of the TPD’s sexual assault task force, which reviews the test results the

department receives from BCI and investigates cases when appropriate. In December of

2014, Detective Mauro identified Reynolds as a possible suspect in the rapes of victim 1,

victim 2, and victim 3. He obtained a search warrant for Reynolds’s DNA and sent the

samples to BCI for testing.

{¶ 18} BCI analyst David Niemeyer testified that he conducted DNA testing on a

sample from victim 1’s rape kit. The testing found two DNA profiles on victim 1’s

vaginal swab, one from her and one from an unknown male. Niemeyer compared

Reynolds’s sample with the unknown male’s DNA profile and found that Reynolds’s

profile is consistent with the unknown male’s profile. He claimed that the frequency of

occurrence of the unknown male’s DNA profile is one in 4 sextillion, 93 quintillion

unrelated individuals. Put another way, the probability of randomly selecting an

unrelated person with the same DNA profile as the unknown male is one in 4 sextillion,

8. 93 quintillion, a number that is approximately a trillion times more than the population of

the earth.

{¶ 19} Niemeyer also conducted DNA testing on a sample from victim 2’s rape

kit. The testing found two DNA profiles on victim 2’s vaginal swab, one from her and

one from an unknown male. Niemeyer compared Reynolds’s sample with the unknown

male’s DNA profile and found that Reynolds’s profile is consistent with the unknown

male’s profile. He claimed that the frequency of occurrence of the unknown male’s DNA

profile is one in 4 sextillion, 93 quintillion unrelated individuals. In other words, the

probability of randomly selecting an unrelated person with the same DNA profile as the

unknown male is one in 4 sextillion, 93 quintillion, a number that is approximately a

trillion times more than the population of the earth.

{¶ 20} BCI analyst Heather Bizub testified that she conducted DNA testing on a

sample from victim 3’s rape kit. The testing found two DNA profiles on victim 3’s

vaginal swab, one from her and one from an unknown male. Bizub compared Reynolds’s

sample with the unknown male’s DNA profile and found that Reynolds’s profile is

consistent with the unknown male’s profile. She claimed that the frequency of

occurrence of the unknown male’s DNA profile is one in 4 septillion, 93 quintillion

unrelated individuals. That is, the probability of randomly selecting an unrelated person

with the same DNA profile as the unknown male is one in 4 septillion, 93 quintillion, a

number that is over a trillion times more than the population of the earth.

9. {¶ 21} Based on the DNA results, Detective Mauro spoke to the three victims,

who all agreed to cooperate with the investigation.

E. Outcome

{¶ 22} After hearing the evidence, the jury found Reynolds guilty of the three rape

counts and the two related gun specifications and not guilty of the aggravated robbery

count. The court proceeded directly to sentencing and sentenced Reynolds to 9 years in

prison on each rape count and 3 mandatory years in prison on each gun specification.

The court ordered Reynolds to serve his sentences consecutively for an aggregate

sentence of 33 years.

F. Request to Withdraw

{¶ 23} Appellant’s appointed counsel filed a request to withdraw pursuant to

Anders v. California,

,

,

(1967). In support of

his request to withdraw, counsel states that, after reviewing the record of proceedings in

the trial court, he was unable to find any appealable issues. Counsel asserted that after

thoroughly reviewing the transcript of proceedings from the trial court as well as the

applicable case law, no meritorious assignments of error could be presented. Counsel

did, however, submit six potential assignments of error:

Assignment of Error One: The trial court erred in refusing to sever

counts in the indictment for trial.

Assignment of Error Two: The trial court erred in failing to dismiss

the indictment for pre-indictment delay.

10. Assignment of Error Three: The trial court improperly admitted

victim statements to the SANE in violation of Evid.R. 803(4).

Assignment of Error Four: Appellant’s convictions are unsupported

by sufficient evidence and are against the manifest weight of the evidence.

[Assignment of Error Five:] The trial court erred where it denied

Appellant’s September 24, 2015 Motion to Dismiss all counts/suppress all

evidence/dismiss Count 1 due to the State’s failure to preserve evidence.

[Assignment of Error Six:] Appellant was denied the effective

assistance of trial counsel where the trial counsel failed to preserve his

objections to certain medical records which were read before the jury and

failed to renew his Motion to Sever thus preserving the issue for appeal.

{¶ 24} The procedure to be followed by appointed counsel who desires to

withdraw for want of a meritorious, appealable issue is set forth in Anders. In Anders,

the Supreme Court of the United States found that if counsel, after a conscientious

examination of the case, determines it to be wholly frivolous, he should so advise the

court and request permission to withdraw.

. This request must be

accompanied by a brief identifying anything in the record that could arguably support the

appeal.

In addition, counsel must furnish the client with a copy of the brief, request

to withdraw, and allow the client sufficient time to raise any matters he chooses.

Once these requirements have been satisfied, the appellate court must conduct a full

examination of the proceedings held below to decide if the appeal is indeed frivolous. Id.

11. If the appellate court determines that the appeal is frivolous, it may grant counsel’s

request to withdraw and dismiss the appeal without violating constitutional requirements,

or it may proceed to a decision on the merits if required by state law. Id.

{¶ 25} Here, counsel fulfilled the requirements set forth in Anders. Reynolds did

not file a pro se brief or otherwise respond to counsel’s request to withdraw. We shall

proceed with an examination of the potential assignments of error set forth by counsel as

well as the entire record below to determine if this appeal lacks merit and is, therefore,

wholly frivolous.

II. Law and Analysis

A. Motion to Sever

{¶ 26} Counsel’s first potential assignment of error alleges that the trial court erred

when it did not sever the counts in the indictment for trial. The state contends that

Reynolds waived this issue when he failed to renew his pretrial motion to sever at the

time of trial, or, if he did not waive the issue, the counts were properly joined. We agree

with the state.

{¶ 27} When a defendant makes a pretrial Crim.R. 14 motion to sever, he is

required to renew the motion at the close of the state’s case or the conclusion of all the

evidence so that the trial court can conduct a Crim.R. 14 analysis based on all of the

evidence presented at trial. State v. Rojas, 6th Dist. Lucas No. L-11-1276, 2013-Ohio-

1835, ¶ 34. Failure to renew the motion forfeits all but plain error on appeal. Id.; and see

State v. Payne,

,

,

(an appellant

12. forfeits an error by failing to preserve an objection, but forfeiture does not extinguish a

claim of plain error under Crim.R. 52(B).)

{¶ 28} We generally review a trial court’s decision on a motion to sever for an

abuse of discretion. State v. Hand,

,

,

,

¶ 166. But when the appellant forfeits an issue we review only for plain error. State v.

Underwood,

,

,

, ¶ 62. Here, Reynolds’s

trial counsel failed to renew his motion to sever after the state presented its case or at the

close of the evidence. Thus, he has forfeited all but plain error.

{¶ 29} Plain error is error that affects substantial rights. Crim.R. 52(B). In

determining whether plain error occurred, we must examine the alleged error in light of

all of the evidence properly admitted at trial. State v. Hill,

,

(2001). Plain error should be found “only in exceptional circumstances and

only to prevent a manifest miscarriage of justice.”

citing State v. Long,

,

(1978), paragraph three of the syllabus. Plain error is not present

unless the outcome of the trial would have been different but for the complained of error.

State v. Gardner,

,

,

, ¶ 78.

{¶ 30} Under Crim.R. 8(A), two or more offenses can be charged in one

indictment if the offenses (1) are of the same or similar character, (2) are based on the

same act or transaction, (3) are based on two or more acts or transactions connected

together or constituting parts of a common scheme or plan, or (4) are part of a course of

criminal conduct.

13. {¶ 31} Criminal Rule 14 provides, however, that separate trials shall be ordered if

it appears that a defendant is prejudiced by joinder of the offenses in one indictment.

Because joinder is favored for judicial economy, the defendant bears the burden of

claiming prejudice and providing sufficient information for the trial court to weigh the

right to a fair trial against the benefits of joinder. State v. Schaim,

,

(1992); State v. Torres,

,

(1981),

syllabus. A claim of prejudice depends on whether the advantages of joinder and

avoidance of multiple trials are outweighed by the right of a defendant to be tried fairly

on each charge.

.

{¶ 32} The state can use two methods to defeat a defendant’s claim of prejudice

under Crim.R. 14: the “other acts” test or the “joinder” test. State v. Lott,

,

(1990).

{¶ 33} Under the other acts test, the state must show that evidence of the other

charged offenses would be admissible as “other acts” under Evid.R. 404(B) even if the

counts are severed for trial. State v. Gibson, 6th Dist. Lucas Nos. L-13-1222 and

L-13-1223,

, ¶ 28, citing State v. Townsend, 6th Dist. Lucas No.

L-00-1290,

, 21-22 (Apr. 12, 2002). Under the joinder test,

the state can defeat a claim of prejudice by showing that the jury is capable of separating

the proof of each crime because the evidence of each crime is simple and direct.

“Ohio appellate courts routinely find no prejudicial joinder where the evidence is

presented in an orderly fashion as to the separate offenses or victims without significant

14. overlap or conflation of proof.” State v. Robinson, 6th Dist. Lucas No. L-09-1001, 2010-

Ohio-4713, ¶ 51.

{¶ 34} We find that the trial court’s denial of Reynolds’s motion to sever does not

constitute plain error because the evidence of each crime was separate, direct, and

capable of being separated—thereby satisfying the joinder test. The record shows that

the state presented its evidence in an orderly fashion and without significant overlap of

testimony or conflation of proof. Reynolds does not point to anything that suggests

otherwise. We find that the evidence in this case was sufficiently simple and direct to

outweigh any prejudice joint trials might have caused Reynolds. Thus, joinder was

proper, and the trial court did not commit any error—let alone plain error—when it

denied Reynolds’s motion to sever. Accordingly, Reynolds’s first potential assignment

of error is not well-taken.

B. Motions to Dismiss

{¶ 35} In counsel’s second and fifth potential assignments of error, he contends

that the trial court erred by failing to grant Reynolds’s motions to dismiss. Reynolds

claims that the case should have been dismissed for two separate reasons:

(1) preindictment delay and (2) failure to preserve evidence. We address each motion in

turn.

1. Motion to Dismiss for Preindictment Delay

{¶ 36} Reynolds first contends that the trial court should have dismissed his case

based on preindictment delay. We disagree.

15. {¶ 37} “[P]reindictment delay violates due process only when it is unjustifiable

and causes actual prejudice * * *.” State v. Jones,

,

,

. The test for preindictment delay is a two-step burden-shifting test.

First, the defendant must present evidence of actual prejudice. Id. at ¶ 13. If he does, the

burden shifts to the state to produce evidence of a justifiable reason for the delay; the

reason for the state’s delay is irrelevant if the defendant cannot establish actual prejudice.

Id. at ¶ 13, 17. In reviewing the trial court’s decision on a motion to dismiss for

preindictment delay, we give deference to the trial court’s findings of fact, but review the

court’s application of the law to the facts de novo. State v. Zimbeck,

,

,

(6th Dist.).

{¶ 38} “Actual prejudice exists when missing evidence or unavailable testimony,

identified by the defendant and relevant to the defense, would minimize or eliminate the

impact of the state’s evidence and bolster the defense.” Jones at ¶ 28, citing State v.

Luck,

,

(1984). But “[t]he ‘possibility that

memories will fade, witnesses will become inaccessible, or evidence will be lost is not

sufficient to establish actual prejudice.’” (Emphasis sic.) Id. at ¶ 21, quoting State v.

Adams,

,

,

.

{¶ 39} In his motion, Reynolds does not identify any relevant evidence that he

would have been able to present in his defense but for the state’s five-year delay in

prosecuting him for the rapes. Rather, his motion states only that “[i]t becomes, after a

period of time, difficult to locate witnesses, identify and analyze physical evidence,

16. determine a person’s whereabouts, as well as numerous other factors.” This is

insufficient to show that he was actually prejudiced by the delay. Jones at ¶ 21. Without

a showing of actual prejudice, Reynolds was not entitled to have his case dismissed for

preindictment delay, and the trial court did not err in denying the motion. Consequently,

we find that counsel’s second potential assignment of error is not well-taken.

2. Motion to Dismiss Based on the State’s Failure to Preserve Evidence

{¶ 40} In his fifth potential assignment of error, counsel contends that the trial

court erred by denying Reynolds’s motion to dismiss based on the state’s failure to

preserve evidence. In his motion, Reynolds argues that his due process rights were

violated when the TPD destroyed the clothes that victim 1 wore at the time of the rape.

The clothes were destroyed in March 2013, which was after victim 1’s rape kit was sent

to BCI for testing, but before Reynolds was identified as a suspect. In its response to

Reynolds’s motion, the state conceded that the TPD destroyed the clothing, but argued

that Reynolds failed to show that the clothes were materially exculpatory and that

Reynolds had no evidence that the state destroyed the clothes in bad faith.

{¶ 41} Lost or destroyed evidence in criminal cases is classified into two types:

materially exculpatory and potentially useful. Evidence is materially exculpatory if its

exculpatory value is apparent on its face and it is of such a nature that the defendant

cannot obtain comparable evidence by other reasonably available means. California v.

Trombetta,

,

,

(1984). Further, there

must be a “reasonable probability” that the result of the proceeding would have been

17. different if the evidence had been disclosed to the defendant. State v. Wilson, 6th Dist.

Lucas No. L-08-1380,

, ¶ 39, citing State v. Johnston,

,

(1988). Destruction of materially exculpatory evidence is a per se

due process violation. State v. Powell,

,

,

, ¶ 74. The defendant bears the burden of showing that the destroyed evidence was

materially exculpatory.

{¶ 42} On the other hand, evidence is potentially useful if “no more can be said

than that it could have been subjected to tests, the results of which might have exonerated

the defendant.” Arizona v. Youngblood,

,

,

(1988). For destruction of potentially useful evidence to rise to the level of a due process

violation, the defendant must show bad faith on behalf of the state. Powell at ¶ 76. Bad

faith generally requires something more than bad judgment or negligence; it requires

dishonesty, conscious wrongdoing, ulterior motive, or ill will. Id. at ¶ 81.

{¶ 43} The record does not support Reynolds’s contention that the destroyed

clothing was materially exculpatory. The clothing was not exculpatory on its face and

Reynolds points to no evidence showing that the outcome of his trial would have been

different if he had been given access to the clothes. And, as the state points out in its

response to Reynolds’s motion, DNA consistent with Reynolds’s DNA was found in or

around victim 1’s vagina; finding another person’s DNA profile on victim 1’s clothes

would not change that fact. All that can be said of the clothes is that they could have

18. been subjected to further testing, the results of which might have exonerated Reynolds.

Thus, we find that the destroyed clothing was only potentially useful evidence.

{¶ 44} Because the clothing was potentially useful evidence, Reynolds is required

to show that the TPD acted in bad faith by destroying it. He does not do so. Reynolds’s

motion to dismiss does not allege any wrongdoing (aside from the destruction of the

clothes) or attribute any dishonesty, ulterior motive, or ill will to the TPD. Without such

evidence, Reynolds cannot meet his burden of showing that his due process rights were

violated. We find, therefore, that counsel’s fifth potential assignment of error is not well-

taken.

C. Admission of Victims’ Hearsay Statements

{¶ 45} In his third potential assignment of error, counsel contends that the trial

court improperly admitted the victims’ statements to the SANEs. He argues that the

statements are inadmissible hearsay and are not admissible under Evid.R. 803(4) because

they are not statements for the purposes of medical diagnosis or treatment. The state

counters that Reynolds did not object to any of the statements as hearsay and, further, the

statements were properly admitted under Evid.R. 803(6), the business records hearsay

exception.

{¶ 46} Our review of the transcript shows that Reynolds did not object to the

SANEs’ reading of victim 2’s or victim 3’s transcribed statement from their medical

records, or object to the statements of any victim being admitted as part of the medical

records. Because Reynolds failed to preserve those errors, he forfeited them, and we

19. review only for plain error. Reynolds did, however, object to O’Neal’s testimony

regarding victim 1’s statement.

1. Victim 1’s Statement

{¶ 47} While O’Neal was testifying, the prosecutor asked her to read the statement

by victim 1 that O’Neal documented in victim 1’s rape kit. Reynolds’s attorney objected.

At sidebar, the prosecutor argued that the statement was admissible under Evid.R. 803(4)

as a statement for the purpose of medical diagnosis or treatment. The court admitted the

statement as business records under Evid.R. 804(6). Reynolds now contends that the trial

court erred by admitting the statement.

{¶ 48} “On appeal, challenged hearsay is subject to de novo review under the

applicable hearsay rule, rather than the more deferential review employed for

discretionary rulings” because “[w]hile there is discretion to admit or exclude relevant

evidence, there is no ‘discretion’ to admit hearsay.” State v. Richcreek,

,

,

(6th Dist.), citing State v. Sutorius,

,

(1st Dist. 1997); and State v. Sorrels,

,

(1st Dist. 1991).

{¶ 49} The challenged testimony is hearsay within hearsay. That is, the medical

records and victim 1’s statement in the medical records are both hearsay—i.e., out of

court statements offered to prove the truth of the matter asserted—making both the

records and victim 1’s statement presumptively inadmissible. Evid.R. 801(C), 802.

20. Evidence Rule 805 provides that hearsay within hearsay is admissible “if each part of the

combined statements conforms with an exception to the hearsay rule * * *.”

{¶ 50} We first consider whether the medical records are admissible under a

hearsay exception. The Ohio Supreme Court has identified the requirements to establish

admissibility of records under Evid.R. 803(6), the business record exception to the

hearsay rule:

“To qualify for admission under Rule 803(6), a business record must

manifest four essential elements: (i) the record must be one regularly

recorded in a regularly conducted activity; (ii) it must have been entered by

a person with knowledge of the act, event or condition; (iii) it must have

been recorded at or near the time of the transaction; and (iv) a foundation

must be laid by the ‘custodian’ of the record or by some ‘other qualified

witness.’” Weissenberger, Ohio Evidence Treatise (2007) 600, Section

803.73. Even after these elements are established, however, a business

record may be excluded from evidence if “the source of information or the

method or circumstances of preparation indicate lack of trustworthiness.”

Evid.R. 803(6). State v. Davis,

,

,

, ¶ 170.

{¶ 51} Victim 1’s medical records meet the requirements for admissibility under

Evid.R. 803(6). First, O’Neal testified that the medical records were regularly kept in the

course of the hospital’s business. She also testified that when she performs a rape

21. examination, she regularly transcribes the patient’s statement into her medical record.

O’Neal testified that she was the person who examined victim 1, heard her statement, and

transcribed the statement at the time it was made. Additionally, the state established the

proper foundation for the records before they were admitted (without objection from the

defense). Finally, there is no evidence that “the source of information or the method or

circumstances of preparation indicate lack of trustworthiness.” Evid.R. 803(6).

Accordingly, we find that the medical records are admissible business records.

{¶ 52} We find, however, that the majority of victim 1’s statement within the

medical records is inadmissible hearsay because it fails to satisfy Evid.R. 803(4), which

exempts from the hearsay rule “[s]tatements made for purposes of medical diagnosis or

treatment and describing medical history, or past or present symptoms, pain, or

sensations, or the inception or general character of the cause or external source thereof

insofar as reasonably pertinent to diagnosis or treatment.”

For such statements to be

admissible under this exception, the declarant’s motive must be consistent with that of a

patient seeking treatment and it must be reasonable for the medical provider to rely on the

information in diagnosing and treating the declarant. State v. Ridley, 6th Dist. Lucas No.

L-10-1314,

, ¶ 49, citing State v. Clary,

,

(10th Dist. 1991). We have previously found that a description of the injuring

event and identification of the perpetrator fall within the medical diagnosis or treatment

hearsay exception. Id. at ¶ 52, citing State v. Stahl, 9th Dist. Summit No. 22261, 2005-

Ohio-1137, ¶ 15.

22. {¶ 53} The only part of victim 1’s statement that is admissible under Evid.R.

803(4) is the sentence where she briefly described her rape, i.e., the injuring event. The

rest of the statement describes what led up to the assault and victim 1’s actions after the

assault. Nothing else in the statement constitutes information that is “reasonably

pertinent to diagnosis or treatment,” describes the actual event that caused victim 1’s

injuries, or identified the perpetrator. Therefore, the majority of the statement does not fit

within the medical diagnosis and treatment exception and should have been excluded

from evidence.

{¶ 54} Nevertheless, any error caused by the admission of victim 1’s statement

was harmless. Harmless error is “Any error, defect, irregularity, or variance which does

not affect substantial rights * * *.” Crim.R. 52(A). Error is harmless if “there is no

reasonable possibility that the evidence may have contributed to the accused’s

conviction.” State v. Bayless,

,

(1976), paragraph

seven of the syllabus. In considering the issue of harmless error appellate courts are to

“assess the impact” of the inadmissible testimony on the jury. State v. Rahman,

,

(1986). Improper admission of hearsay is harmless

when the declarant is examined on the same matters that are contained in the

impermissible hearsay and the admission of the hearsay is essentially cumulative. State

v. Noles, 6th Dist. Lucas No. L-12-1310,

, ¶ 42, quoting State v.

Tomlinson,

,

(12th Dist. 1986).

23. {¶ 55} Here, the impact of O’Neal reading victim 1’s statement from her medical

records was negligible because the statement’s admission was cumulative of other

admissible testimony. Moreover, victim 1 testified to the facts in her statement during

the trial and was subject to cross-examination. Reynolds was also able to cross examine

O’Neal regarding her recording and recitation of victim 1’s statements. Thus, we

conclude that the court admitting victim 1’s statement was harmless error.

2. Victim 2’s and Victim 3’s Statements

{¶ 56} Counsel also contends that the trial court erred by allowing the two other

SANEs, Benfield and Ward, to read victim 2’s and victim 3’s statements from their

medical records. Trial counsel did not object to either statement, however, so Reynolds

has forfeited all but plain error regarding the admission of the statements. Underwood,

,

,

, at ¶ 62.

{¶ 57} Again, the challenged testimony is hearsay within hearsay, and the medical

records fall within the business records exception of Evid.R. 803(6). The statements by

victim 2 and victim 3, however, are similar to victim 1’s statement in that they both

contain some information that falls under the Evid.R. 803(4) hearsay exception because

they are statements for the purpose of medical diagnosis or treatment, but the majority of

the victims’ statements is inadmissible hearsay. Also like victim 1’s statement, we find

that the admission of the other victims’ statements was harmless because both victims

testified and were cross examined, as were both of the SANEs who recorded the

statements, and the admission of the statements was cumulative to other admissible

24. testimony. Accordingly, we cannot find that the outcome of the trial would have been

different but for the admission of victim 2’s and victim 3’s statements. Therefore, no

plain error exists.

{¶ 58} Accordingly, counsel’s third potential assignment of error is not well-taken.

D. Sufficiency and Manifest Weight of the Evidence

{¶ 59} In the fourth potential assignment of error, counsel contends that

Reynolds’s convictions are not supported by sufficient evidence and are against the

manifest weight of the evidence. The state argues that all of Reynolds’s conviction are

supported by sufficient evidence and are not against the manifest weight of the evidence.

1. Sufficiency of the Evidence

{¶ 60} Reynolds first contends that his convictions are not supported by sufficient

evidence. We disagree.

{¶ 61} In reviewing a challenge to the sufficiency of the evidence, we view the

evidence in a light most favorable to the prosecution and determine whether “any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Internal citations omitted.) State v. Smith,

,

(1997). In making that determination, the appellate court will not weigh

the evidence or assess the credibility of the witnesses. State v. Were,

,

,

, ¶ 132. Whether there is sufficient evidence to support

a conviction is a question of law. State v. Thompkins,

,

(1997).

25. {¶ 62} Reynolds was convicted of three counts of rape under R.C. 2907.02(A)(2),

two of which included gun specifications under R.C. 2941.145. The rape statute requires

the state to prove that the defendant engaged in sexual conduct with another by

compelling the other person to submit by force or threat of force. R.C. 2907.02(A)(2).

“Force” for purposes of a rape conviction is defined as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” R.C.

2901.01(A)(1). “A defendant purposely compels another to submit to sexual conduct by

force or threat of force if the defendant uses physical force against that person, or creates

the belief that physical force will be used if the victim does not submit.” Schaim,

,

, paragraph one of the syllabus.

{¶ 63} Conviction of a gun specification under R.C. 2941.145 requires the state to

prove that the defendant had a firearm on or about his person or under his control while

committing the charged offense and that he displayed, brandished, or indicated that he

possessed the firearm, or used the firearm to facilitate the offense.

{¶ 64} At trial, each victim testified that an unknown man engaged in penetrative

sex with her against her will, which he accomplished by placing an object he said was a

gun against her body and threatening to shoot or otherwise injure her if she did not

comply with his demands. Victim 3 saw the gun that the man was carrying. And victim

2 testified that the man physically pushed her against the edge of a loading dock before

raping her. Further, victim 3 identified Reynolds as her assailant, and two BCI scientists

testified that the DNA found in or around each victim’s vagina was consistent with

26. Reynolds’s DNA and that the chance of randomly finding the same DNA profile in a

group of unrelated individuals was one in a number roughly a trillion times greater than

the earth’s population. This evidence is sufficient to support the jury’s findings that

Reynolds committed all three rapes. It is also sufficient to show that Reynolds indicated

that he possessed a gun at the time of the rapes of victim 1 and victim 3 or used the gun

to facilitate the rapes of victim 1 and victim 3.

{¶ 65} We conclude that a rational trier of fact could have found all of the

essential elements of rape and the gun specifications proven beyond a reasonable doubt.

Thus, Reynolds’s convictions are supported by sufficient evidence.

2. Manifest Weight of the Evidence

{¶ 66} Reynolds also contends that his convictions are against the manifest weight

of the evidence. When reviewing a claim that a verdict is against the manifest weight of

the evidence, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the jury clearly lost its way

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. Thompkins,

,

. We do not view the evidence in a light most favorable to the

state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of

the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-

Ohio-6068, ¶ 15, citing

. Reversal on manifest weight grounds is

reserved for “the exceptional case in which the evidence weighs heavily against the

27. conviction.”

, quoting State v. Martin,

,

(1st Dist. 1983). Although under a manifest weight standard we consider the

credibility of witnesses, we extend special deference to the jury’s credibility

determinations given that it is the jury that has the benefit of seeing the witnesses testify,

observing their facial expressions and body language, hearing their voice inflections, and

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.

Lucas No. L-10-1162,

, ¶ 14.

{¶ 67} After reviewing the evidence and the credibility of the witnesses, we are

not convinced that the evidence weighs heavily against Reynolds’s convictions. Nor can

we say that the jury lost its way or created a manifest miscarriage of justice by convicting

Reynolds of the three rape counts and two gun specifications. We find, therefore, that

Reynolds’s convictions are not against the manifest weight of the evidence. Accordingly,

counsel’s fourth potential assignment of error is not well-taken.

E. Ineffective Assistance of Counsel

{¶ 68} In the final potential assignment of error, appellate counsel asserts that

Reynolds received ineffective assistance of trial counsel because trial counsel failed to

preserve certain issues for appellate review by failing to renew Reynolds’s motion to

sever and failing to object to the nurses reading victim 2’s and victim 3’s statements from

their medical records.

{¶ 69} In order to prevail on a claim of ineffective assistance of counsel, an

appellant must show that counsel’s conduct so undermined the proper functioning of the

28. adversarial process that the trial court cannot be relied on as having produced a just

result. Strickland v. Washington,

,

,

(1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” State v.

Bradley,

,

(1989), quoting

.

{¶ 70} To establish ineffective assistance of counsel, an appellant must show

“(1) deficient performance of counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability

that, but for counsel’s errors, the proceeding’s result would have been different.” State v.

Hale,

,

,

, citing Strickland at

687-688. “A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” State v. Sanders,

,

(2002).

{¶ 71} Counsel is “strongly presumed” to have rendered adequate assistance and

“the defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” State v. Smith,

,

(1985), quoting

. Generally, trial

strategy and tactical decisions—even debatable ones—cannot form the basis of a claim of

ineffective assistance of counsel. State v. Grissom, 6th Dist. Erie No. E-08-008, 2009-

Ohio-2603, ¶ 22.

{¶ 72} In evaluating an ineffective assistance of counsel claim, the critical inquiry

is the effect of counsel’s errors on the trial. State v. Halsell, 9th Dist. Summit No. 24464,

, ¶ 34. “Failure to preserve error on appeal—even if professionally

29. unreasonable—is not tantamount to ineffective assistance of counsel when there is no

effect on the judgment below.”

Furthermore, “[t]he failure to object to error, alone, is

not enough to sustain a claim of ineffective assistance of counsel.” State v. Holloway,

,

(1988). Rather, the appellant must first show that

there was a substantial violation of defense counsel’s essential duties to his client and,

second, that he was materially prejudiced by counsel’s ineffectiveness. State v. Shaw, 6th

Dist. Lucas No. L-15-1165,

, citing

.

{¶ 73} Here, there is no evidence in the record that counsel’s failure to renew the

motion to sever fell below an objective standard of reasonable representation. As we

discussed above, given that the evidence of each charge was simple and direct, the trial

court did not err in refusing to sever the counts of the indictment. Thus, Reynolds cannot

show that he was materially prejudiced by counsel’s failure to renew the motion.

Accordingly, we find that counsel’s failure to renew the motion to sever was not

ineffective assistance.

{¶ 74} Likewise, there is no evidence in the record that counsel’s failure to object

to the admission of the victims’ statements was a violation of their essential duties to

Reynolds or fell below an objective standard of reasonable representation. And, as we

discussed above, any error in allowing the nurses to read the inadmissible portions of the

statements to the jury was harmless, preventing Reynolds from showing that he was

materially prejudiced by counsel’s failure to object. We find, therefore, that the record

does not demonstrate that Reynolds’s trial counsel were ineffective by failing to object to

30. the hearsay statements. Therefore, counsel’s sixth potential assignment of error is not

well-taken.

III. Conclusion

{¶ 75} This court has thoroughly reviewed the record of proceedings in the trial

court, including the trial testimony and exhibits. We find that the trial court did not err

by refusing to sever the counts in the indictment for trial, admitting evidence from the

victims’ medical records, or denying Reynolds’s motions to dismiss; Reynolds’s

conviction is supported by sufficient evidence and is not against the manifest weight of

the evidence; and Reynolds’s trial counsel provided effective representation. Appointed

counsel’s potential assignments of error are without merit.

{¶ 76} Upon our own independent review of the record, we find no grounds for a

meritorious appeal. Accordingly, this appeal is found to be without merit and is wholly

frivolous. Appellant’s counsel’s motion to withdraw is found well-taken and is hereby

granted.

{¶ 77} The April 11, 2016 judgment of the Lucas County Court of Common Pleas

is affirmed. Reynolds is ordered to pay the costs of this appeal pursuant to App.R. 24.

{¶ 78} The clerk is ordered to serve all parties with notice of this decision.

Judgment affirmed.

31. State v. Reynolds C.A. No. L-16-1080

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE James D. Jensen, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE

32.