[Cite as State v. Lewis,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 15-20-04

v.

ASHLEY L. LEWIS, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court Trial Court No. CR-19-08-099

Judgment Affirmed

Date of Decision: December 28, 2020

APPEARANCES:

L. Patrick Mulligan and Laura M. Woodruff for Appellant

Eva J. Yarger for Appellee Case No. 15-20-04

WILLAMOWSKI, J.

{¶1} Defendant-appellant Ashley L. Lewis (“Lewis”) appeals the judgment

of the Van Wert County Court of Common Pleas, alleging that (1) his convictions

were against the manifest weight of the evidence; (2) that his convictions were not

supported by sufficient evidence; (3) that the prosecutor made unfairly prejudicial

remarks; (4) that the trial court admitted an irrelevant, prejudicial exhibit; (5) that

he was denied his right to the effective assistance of counsel; and (6) that he was

deprived of a fair trial by these cumulative errors. For the reasons set forth below,

the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} Emily Johns (“Emily”) has a daughter, S.J., and a son, A.J. Tr. 48, 83.

S.J. was born in 2007, and A.J. is roughly five years younger than S.J. Tr. 83. In

September of 2014, Emily moved back to Ohio from Florida and began living with

her father and stepmother, Alice Johns (“Alice”), in their house on Tully Street in

Convoy, Ohio (“Tully Street house”). Tr. 49, 84. Emily and her children would

live in this residence until the spring of 2018. Tr. 84. While Emily lived with her

parents, she and her children had their own bedroom. Tr. 50, 85. A.J. slept in a

crib, but Emily slept on the bottom of a bunkbed while S.J. slept on the top of this

bunkbed. Tr. 85. The bedroom would also serve as a play area for the children. Tr.

158.

-2- Case No. 15-20-04

{¶3} In between 2014 and 2017, Emily and Lewis were in a relationship. Tr.

92, 246. At this time, Lewis lived in a residence on Mentzer Church Road in Van

Wert County (“Mentzer Church Road house”). Tr. 93, 249. During the course of

their relationship, Lewis and Emily would occasionally stay overnight at the other’s

residence. Tr. 94. Emily usually brought her children with her when she stayed the

night at Lewis’s house. Tr. 94. However, Lewis would generally not bring any of

his three sons with him to Emily’s house. Tr. 93, 94, 97.

{¶4} Lewis would also come to Emily’s residence after S.J. and A.J. were

home from school. Tr. 97. Oftentimes, Emily was not yet back from work. Tr. 97.

During these occasions, Lewis would be by himself with the children and Alice. Tr.

97. At times, Lewis would be alone with the children in the bedroom. Tr. 67. Emily

suggested that Lewis wait to come over until she was back from work, but he

continued to come to her residence and spend time with her children when she was

not present. Tr. 97. Emily testified that she felt that Lewis spent more time with

her children than with his own and that S.J. was Lewis’s favorite. Tr. 98, 99.

{¶5} Emily ended her relationship with Lewis in October of 2017. Tr. 107.

Subsequently, Lewis stopped by Emily’s house. Tr. 109. When S.J. saw Lewis,

she ran upstairs. Tr. 109. Emily thought that S.J. “maybe * * * was in a hurry to

go do something * * *.” Tr. 109. However, at A.J.’s kindergarten graduation

ceremony in May of 2019, S.J. saw Lewis and “flip[ped] out.” Tr. 111. Emily asked

-3- Case No. 15-20-04

S.J. why she reacted to seeing Lewis. Tr. 112. S.J. did not immediately provide an

explanation. Tr. 212. Several nights later, after Emily continued to ask S.J.

questions, S.J. told her mother that Lewis had inappropriately touched her. Tr. 212.

Emily then reported this to police. Tr. 114.

{¶6} On May 16, 2019, the police took an initial report of S.J.’s allegations.

Tr. 232. On May 20, 2019, Detective Nathan Huebner (“Detective Huebner”), who

works for the Van Wert County Sheriff’s Office, sat down for an interview with

Emily and S.J. at Van Wert County Children’s Services. Tr. 230, 232-233.

Afterwards, Detective Huebner set up an interview with Lewis that occurred on May

22, 2019. Tr. 238. This interview was recorded. Tr. 241. This recording was later

played for the jury at Lewis’s trial. Tr. 241.

{¶7} S.J. would allege that Lewis inappropriately touched her in three

different locales. The first alleged locale was the Tully Street house. Tr. 153, 157.

She testified that Lewis would come to her grandparents’ house “pretty often” while

her mother was still at work. Tr. 157. She stated that Lewis would come into the

bedroom where she would play after school and would let her play games on his

phone. Tr. 158. She stated that Lewis would have her sit on his lap while he was

sitting on the bottom bunk of the bunkbed. Tr. 158-159. As she was playing games

on his phone, Lewis would put one of his hands around her waist and would put his

other hand down her pants. Tr. 158. S.J. testified that his hand would be inside her

-4- Case No. 15-20-04

underwear, touching and rubbing her vaginal area. Tr. 159-160. S.J. indicated that

this happened “several times” at her grandmother’s house. Tr. 163.

{¶8} The second alleged locale was at Lewis’s Mentzer Church Road house.

S.J. reported that she was at Lewis’s house watching a movie with him on his bed

at night. Tr. 164. She testified that, during the movie, he put his hands down her

pants and touched her vaginal area. Tr. 164-165.

{¶9} The third alleged locale was in Emily’s Ford Expedition. Tr. 167. S.J.

testified that Lewis was driving her around in Emily’s vehicle. Tr. 167-168. While

he was driving, Lewis had Emily on his lap and would let her help steer the vehicle.

Tr. 168. S.J. testified that, as she was steering, he would put his hand down her

pants, beneath her underwear and would touch her vaginal area. Tr. 169.

{¶10} On August 1, 2019, Lewis was indicted on three counts of gross sexual

imposition in violation of R.C. 2907.05(A)(4). Doc. 2. The first count was for

Lewis’s alleged actions at Emily’s then residence on Tully Street. The second count

was for Lewis’s alleged actions at his house on Mentzer Church Road. The third

count was for Lewis’s alleged actions in Emily’s Ford Expedition. On January 21,

2020, S.J. was deposed by the prosecutor and Lewis’s defense counsel. Tr. 145-

146. This deposition was recorded. Tr. 146. This recording was later played for

the jury at Lewis’s trial. Tr. 146.

-5- Case No. 15-20-04

{¶11} A jury trial on these charges was held on February 3 and 4, 2020. Tr.

21. On February 4, 2020, the jury found Lewis guilty of the first and third counts

of gross sexual imposition that had been charged against him. Doc. 40, 42. The

jury found Lewis not guilty of the second count of gross sexual imposition that had

been charged against him. Doc. 40, 42. On March 18, 2020, the trial court

sentenced Lewis and issued a judgment entry of sentencing. Doc. 46.

{¶12} The appellant filed his notice of appeal on March 19, 2020. Doc. 60.

On appeal, Lewis raises the following assignments of error:

First Assignment of Error

The convictions were against the manifest weight of the evidence.

Second Assignment of Error

The convictions were not supported by sufficient evidence.

Third Assignment of Error

The prosecutor’s remarks during opening statements were unfairly prejudicial.

Fourth Assignment of Error

The trial court erred in admitting an unfairly prejudicial and irrelevant exhibit.

Fifth Assignment of Error

Trial counsel was ineffective.

-6- Case No. 15-20-04

Sixth Assignment of Error

The cumulative errors of the trial deprived the defendant of a fair trial.

For the sake of analytical clarity, we will consider Lewis’s second assignment of

error before we consider his first assignment of error.

Second Assignment of Error

{¶13} Lewis argues that both of his convictions for gross sexual imposition

were not supported by sufficient evidence.

Legal Standard

{¶14} A challenge to the sufficiency of the evidence supporting a conviction

“is a question of law and a ‘test of adequacy rather than credibility or weight of the

evidence.’” State v. Beaver, 3d Dist. Marion No. 9-17-37,

,

quoting State v. Berry, 3d Dist. Defiance No. 4-12-03,

. “The

sufficiency-of-the-evidence analysis addresses the question of whether adequate

evidence was produced for the case to be considered by the trier of fact and, thus,

whether the evidence was ‘legally sufficient to support the verdict * * *.’” State v.

Luebrecht, 3d Dist. Putnam No. 12-18-02,

, quoting State v.

Worthington, 3d Dist. Hardin No. 6-15-04,

. On appeal, the

applicable standard

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that

-7- Case No. 15-20-04

the essential elements of the crime were proven beyond a reasonable doubt.

State v. Brown, 3d Dist. Hancock No. 5-17-19,

, quoting State

v. Plott,

,

, ¶ 73 (3d Dist.).

{¶15} In order to prove a defendant committed the offense of gross sexual

imposition in violation of R.C. 2907.05(A)(4), the State must establish that the

defendant (1) “ha[d] sexual contact with another, not the spouse of the offender;

cause[d] another, not the spouse of the offender, to have sexual contact with the

offender; or cause[d] two or more other persons to have sexual contact” and (2) “the

other person, or one of the other persons, is less than thirteen years of age, whether

or not the offender knows the age of that person.” R.C. 2907.05(A)(4).

{¶16} R.C. 2907.01 defines “sexual contact” as “any touching of an

erogenous zone of another, including without limitation the thigh, genitals, buttock,

pubic region, or, if the person is a female, a breast, for the purpose of sexually

arousing or gratifying either person.” R.C. 2907.01(B). Thus, “[t]hrough the

definition of sexual contact in R.C. 2907.01(B), gross sexual imposition as

described in R.C. 2907.05(A)(4) requires proof of touching ‘for the purpose of

sexually arousing or gratifying either person.’” (Emphasis sic.) State v. Dunlap,

,

,

, ¶ 25, quoting R.C.

2907.01(B).

-8- Case No. 15-20-04

Legal Analysis

{¶17} In this case, Lewis was convicted of the offenses that were alleged to

have occurred in the Tully Street house and in Emily’s Ford Expedition. Doc. 40,

42. First, Lewis asserts that neither of his convictions is supported by sufficient

evidence because Emily and Alice did not witness him touch S.J. inappropriately.

However, the State, at trial, presented S.J.’s testimony to substantiate the essential

elements of the charged offenses. On January 21, 2020, S.J. was deposed by the

prosecutor and the defense counsel. Tr. 145. A video recording of this deposition

was played for the jury at trial. Tr. 145. We will examine her testimony regarding

each of the alleged incidents for which Lewis received a conviction to determine

whether they are supported by sufficient evidence.

{¶18} Regarding the incidents alleged at the Tully Street house, S.J. testified

that Lewis would come over before her mother got home from work. Tr. 157-158.

She stated that he would come into her bedroom where she would play after school

and would let her play games on his phone. Tr. 157-158. On several of these

occasions, Lewis would sit on the bottom bunk of the bunkbed while she sat on his

lap. Tr. 158. S.J. testified that, as she was playing games on his phone, Lewis put

one of his hands around her waist and put his other hand down her pants. Tr. 159-

160. She further stated that Lewis put this hand beneath her underwear and would

rub her vaginal area. Tr. 160, 162. S.J. stated that, when this happened, her

-9- Case No. 15-20-04

grandmother was outside of the room and that “[i]t happened when nobody was

really around * * *.” Tr. 162, 163. She said that she “never really reacted” and

“would just keep playing [on] the phone.” Tr. 163. She also testified that this

“happened several times at my grandma’s house.” Tr. 163.

{¶19} Regarding the alleged incident in the Ford Expedition, S.J. indicated

that Lewis’s vehicle was not working and that he was, for this reason, driving

Emily’s vehicle. Tr. 167-168. S.J. testified that Lewis allowed her to sit on his lap

and let her help to steer the vehicle. Tr. 169. While her hands were on the wheel,

Lewis reached his hand down her pants and touched her vaginal area. Tr. 169. On

this occasion, S.J. “asked him to stop and * * * pulled his hand away * * *.” Tr.

169. However, she stated that “he’d stop for, like, about five minutes and then he’s

[sic] just keep going again.” Tr. 169. She stated that this continued until they

arrived at his home. Tr. 170.

{¶20} Further, S.J. testified that she was, at the time of the trial, twelve years

old. Tr. 147. Thus, S.J. could not have been over the age of thirteen at the time that

these incidents were alleged to have occurred. S.J. also testified that she was seven

or eight around the time that her mom was dating Lewis. Tr. 155. S.J.’s testimony

provided some evidence that substantiates each of the essential elements of the

offenses that were alleged to have occurred at the Tully Street house and in the Ford

Expedition. Thus, S.J.’s testimony, if believed, provided some evidence regarding

-10- Case No. 15-20-04

each of the essential elements of these charged offenses. See State v. White, 3d Dist.

Seneca No. 13-16-21,

.

{¶21} While Emily and Alice provided testimony that corroborated elements

of S.J.’s description of events, we can, given the facts of this case, determine that

Lewis’s convictions are based on sufficient evidence without reference to Alice or

Emily’s testimony. See State v. Alsip, 8th Dist. Cuyahoga No. 93105, 2010-Ohio-

1757, ¶ 14 (holding “[t]he victim’s testimony alone is sufficient to withstand a

Crim.R. 29 motion on the charge of gross sexual imposition.”); In re C.S., 10th Dist.

Franklin No. 11AP-667,

, ¶ 29, citing State v. West, 10th Dist.

Franklin No. 06AP-11,

.

{¶22} Second, Lewis argues that State failed to establish that the alleged

incident in the Ford Expedition occurred in Van Wert County and, therefore, failed

to establish venue. “Although venue is not a material element of any criminal

offense, it must nevertheless be proven at trial beyond a reasonable doubt, unless

waived.” State v. Patterson, 3d Dist. Hancock No. 5-11-15,

.

Ohio’s venue statute is located in R.C. 2901.12, which reads, in its relevant part, as

follows:

(A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and * * * in the territory of which the offense or any element of the offense was committed.

***

-11- Case No. 15-20-04

(G) When it appears beyond a reasonable doubt that an offense or any element of an offense was committed in any of two or more jurisdictions, but it cannot reasonably be determined in which jurisdiction the offense or element was committed, the offender may be tried in any of those jurisdictions.

R.C. 2907.12(A), (G).

{¶23} The following exchange took place during S.J.’s deposition regarding

the charge arising from the alleged incident in the Ford Expedition:

[Prosecutor]: So where was, where were his hands?

[S.J.]: Around my waist and down my pants.

***

[S.J.]: Once or several times I’m pretty sure I asked him to stop and I pulled his hand away, but he wouldn’t like, he’d stop for, like about five minutes and then he’s [sic] just keep going again.

[Prosecutor]: Okay.

[S.J.]: And, just, I couldn’t do anything.

[Prosecutor]: Okay. How did you feel when he was doing these things to you?

[S.J.]: At that moment not very good.

***

[Prosecutor]: Okay. So how would the truck be moving while this was going on?

[S.J.]: Yes.

-12- Case No. 15-20-04

[Prosecutor]: Okay. So how would it, how long would that go on, how far would you go, do you know?

[S.J.]: No.

[Prosecutor]: Okay. Why would it stop?

[S.J.]: I think just taking us to his house, I think we were kind of just driving around.

[Prosecutor]: Okay. Kind of just driving around till you got back to his house?

[S.J.]: Yeah.

Tr. 169-170. In her deposition, S.J. testified that Lewis was inappropriately

touching her repeatedly as they drove towards his house in Emily’s Ford Expedition.

Tr. 170. Her testimony suggests that Lewis’s pattern of reaching his hand in and

out of her pants stopped when they reached his house. Tr. 169-170. Other evidence

at trial established that Lewis’s house was located on Mentzer Church Road in Van

Wert County, Ohio. Tr. 84-85, 93, 234.

{¶24} Even if we concluded that S.J.’s testimony did not establish that an

element of this offense was committed in Van Wert County, venue would still lie

under R.C. 2901.12(G). S.J.’s testimony establishes that this offense occurred

within the vicinity of Lewis’s house, which is located in Van Wert County. This

testimony ties this offense to a location inside Van Wert County. Thus, if we were

to conclude that the precise location of the offense in relation to the relevant

jurisdictional boundaries could not “reasonably be determined,” S.J.’s testimony

-13- Case No. 15-20-04

still directly connects this offense to Van Wert County, and Lewis could be tried in

Van Wert under R.C. 2901.12(G). R.C. 2901.12(G). Contrary to Lewis’s assertion,

the evidence presented at trial was sufficient to establish venue.

{¶25} Third, Lewis argues that the State failed to establish that his alleged

contact with S.J. was for the purpose of sexual arousal or gratification. He asserts

that S.J. did not testify that he “used sexual language, made noises, or engaged in

other behavior * * * that [was] suggestive of sexual gratification.” Appellant’s

Brief, 13. However, “there is no requirement that there be direct testimony

regarding sexual arousal or gratification.” State v. Gerardi, 5th Dist. Delaware No.

01CA-A-07-029,

, *2 (Feb. 4, 2002). The requisite purpose “may

be discerned from the type, nature, and circumstances of the contact * * *.” State v

Jones, 3d Dist. Auglaize No. 2-98-1,

, *3 (July 22, 1998), quoting

State v. Uhler,

,

(9th Dist. 1992).

{¶26} In this case, S.J. testified that Lewis, at the Tully Street house, put his

hands down her pants, beneath her underwear and rubbed her front, private area

when no one else was around. Tr. 67, 75, 160-163. Similarly, S.J. testified that

Lewis, while driving the Ford Expedition, put his hands down her pants, beneath

her underwear and touched the outside of her vaginal area. Tr. 169. She testified

that she pulled Lewis’s hand away but that he put his hand down her pants again

and continued to touch her vaginal area. Tr. 169.

-14- Case No. 15-20-04

{¶27} This Court has previously found that testimony regarding similar

conduct was sufficient to establish that the defendant acted with the purpose of

obtaining sexual arousal or gratification. State v. Harrold, 3d Dist. Seneca No. 13-

2000-02,

, *4-5 (Oct. 31, 2000); Jones, supra, at *3;

. See also State v. Adams, 5th Dist. Licking No. 02-CA-00043, 2002-Ohio-

5953, ¶ 22; State v. Cochran, 5th Dist. Coshocton No. 03-CA-01,

. Thus, we conclude that S.J. provided testimony from which the jurors could

find that the purpose of Lewis’s contact was for sexual arousal or gratification.

{¶28} After reviewing the record in a light most favorable to the prosecution,

we conclude that S.J.’s testimony provided evidence of each of the essential

elements for both of Lewis’s convictions for gross sexual imposition. A rational

finder of fact could conclude from this evidence that the State had carried its burden

of production at trial. Thus, both of these convictions are supported by sufficient

evidence. Lewis’s second assignment of error is, therefore, overruled.

First Assignment of Error

{¶29} Lewis advances a number of arguments to prove that both of his

convictions are against the manifest weight of the evidence.

Legal Standard

{¶30} “When ‘deciding whether a conviction is against the manifest weight

of the evidence, an appellate court determines whether the state has appropriately

-15- Case No. 15-20-04

carried its burden of persuasion.’” Brown,

, supra, at ¶ 8, quoting

State v. Blanton,

,

(3d Dist. 1997). “In a

manifest weight analysis, ‘the appellate court sits as a “thirteenth juror” * * *.’”

State v. Davis, 3d Dist. Seneca No. 13-16-30,

, quoting State

v. Thompkins,

,

(1997). Appellate courts

“must review the entire record, weigh the evidence and all of the reasonable

inferences, consider the credibility of witnesses, and determine whether in resolving

conflicts in the evidence, the factfinder ‘clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’” State v. Brentlinger,

,

(3d Dist.),

quoting

.

{¶31} “A reviewing court must, however, allow the trier of fact appropriate

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

witnesses.” State v. Sullivan,

,

(3d Dist.),

quoting State v. Coleman, 3d Dist. Allen No. 1-13-53,

. “[I]t

is well established that the * * * credibility of the witnesses [is] primarily a matter

for the trier of fact.” State v. Gervin,

,

, ¶ 142 (3d

Dist.), quoting State v. Clark,

,

(8th Dist.

1995). “Only in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court's judgment.” State v.

-16- Case No. 15-20-04

Little,

,

, ¶ 27 (3d Dist.), quoting State v. Hunter,

,

,

, ¶ 119.

Legal Analysis

{¶32} In her video deposition, S.J. testified that she lived with Emily and

A.J. at her grandparents’ house on Tully Street. Tr. 153. S.J. recalled that she was

seven or eight when Emily was dating Lewis. Tr. 155. S.J. stated that Lewis favored

her over his own children but “didn’t really do anything with [her] brother.” Tr.

155, 222. S.J. testified that Lewis would come over to her house “[p]retty often”

while her grandmother was watching her and while Emily was still at work. Tr.

157. On these occasions, Lewis would not “socializ[e] with [her] grandmother * *

*, he’d always come in to our room * * *.” Tr. 158.

{¶33} Regarding the incidents at the Tully Street house, S.J. stated that, while

her grandmother was in the other room, Lewis would sit on the bed and allow her

(S.J.) to play games on his phone while she sat on his lap. Tr. 158-159, 162. S.J.

testified that Lewis would put one hand around her waist and would put his other

hand down her pants, beneath her underwear. Tr. 159. She further testified that he

would touch and rub the outside of her vaginal area. Tr. 161-162. S.J. indicated

that, in response, she “never reacted, which now seems pretty stupid * * *.” Tr.

162-163.

-17- Case No. 15-20-04

{¶34} S.J. further testified that this happened when she was roughly seven

years old and that Lewis inappropriately touched her “several times at [her]

grandma’s house.” Tr. 163. S.J. could not remember what she was wearing

specifically as Lewis was touching her but stated that she usually wore jeans. Tr.

161. She affirmed that Emily was never home when Lewis was inappropriately

touching her. Tr. 167. S.J. indicated that A.J. was in the room at these times but

that “he was pretty much in diapers still. He would just sit there and play with

blocks.” Tr. 162.

{¶35} Regarding the incident in the Ford Expedition, S.J. testified that Lewis

was borrowing Emily’s vehicle “because his wasn’t working and my mom had just

gotten a Saturn Outlook.” Tr. 167. S.J. testified that, while Lewis was in the driver’s

seat, he had her sit on his lap and “let [her], like, kind of drive.” Tr. 168. She stated

that her hands were on the wheel and that she was steering the vehicle “[u]nless

[she] lost a little control * * *.” Tr. 169. S.J. said that Lewis put one of his hands

around her waist. Tr. 169. She reported that Lewis put his other hand down her

pants and touched her vaginal area. Tr. 169.

{¶36} She further testified, “[o]nce or several times I’m pretty sure I asked

him to stop and I pulled his hand away, but he wouldn’t, like, he’d stop for, like

about five minutes and then he’s [sic] just keep going again.” Tr. 169. S.J. stated

that, in response, she “couldn’t do anything” and did not feel “very good” as this

-18- Case No. 15-20-04

was happening. Tr. 170. According to her testimony, Lewis did not say anything

as he was touching her in the vehicle. Tr. 170. She testified that they were “kind

of driving around” until they got to Lewis’s house. Tr. 170.

{¶37} S.J. stated that, while Emily and Lewis were dating, she did not tell

anyone that Lewis was inappropriately touching her. Tr. 171. She stated that she

saw Lewis about three times after Emily and Lewis ended their relationship. Tr.

171. On the first occasion, Lewis stopped over to help Emily with her vehicle. Tr.

171. S.J. next saw Lewis at a Halloween function. Tr. 171. The third time that she

saw him was at A.J.’s kindergarten program. Tr. 172. S.J. testified that, when she

saw Lewis, she was “[s]cared” and “ran to [her] mom.” Tr. 172. She stated that

Emily was “confused” as to why she (S.J.) “was scared.” Tr. 172. S.J. then said,

“And [Emily] asked why and I just said—I didn’t really tell her, I didn’t at all. But

she kept asking so for, like, the few days and I finally told her and she was not

happy.” Tr. 173.

{¶38} On cross-examination, S.J. admitted that, when she was first

interviewed at Children’s Services, she did not remember all of the incidents

because she felt “under pressure.” Tr. 216. She then clarified that she “was stressed

* * * not really under pressure * * * because [she] was scared.” Tr. 217. She further

stated that she “didn’t want to tell them [the social workers] anything because

they’re strangers to me.” Tr. 217. She also affirmed that she did not tell Children’s

-19- Case No. 15-20-04

Services everything about the incidents until her third visit with them. Tr. 217. S.J.

affirmed that no one was pressuring her. Tr. 218.

{¶39} At trial, Emily testified that she was in a relationship with Lewis from

2014 to 2017. Tr. 92. She stated that Lewis would not generally bring his children

over to the Tully Street house and would spend time with S.J. while she was at work.

Tr. 97. Emily also testified that she felt that Lewis spent more time with her kids

than with his kids and that S.J. was Lewis’s favorite. She said that Alice was

concerned by Lewis’s presence at the house when she (Emily) was at work and that

Lewis’s visits caused tensions with Alice. Tr. 97, 117-118. Emily stated that, for

this reason, she suggested to Lewis that he wait to come over until after she got off

of work. Tr. 97.

{¶40} Emily stated that Lewis would allow S.J. to play on his phone. Tr. 98,

99, 105-106. Emily reported that she attempted to limit S.J.’s time on Lewis’s

phone and “actually stated to both of them one day that [S.J.] needed to stay off the

phone * * *.” Tr. 106. However, S.J. reported to Emily that Lewis had “told [her

(S.J.)] it was OK to be on the phone * * *” and “told [her (S.J.)] not to tell [Emily].”

Tr. 106. Emily confronted Lewis about this several times, but he continued to allow

S.J. to play on his phone. Tr. 106-107.

{¶41} In her testimony, Emily confirmed that she had a Ford Expedition and

that Lewis was allowed to drive this vehicle. Tr. 102. She testified that, for a time,

-20- Case No. 15-20-04

Lewis borrowed her Ford Expedition because his vehicle was in the repair shop for

a couple of weeks or months. Tr. 102. Emily also confirmed that, after she and

Lewis had ended their relationship, Lewis came to her house to bring her a back

brace and that S.J. ran upstairs when she saw Lewis come in the front door. Tr. 109.

She also stated that S.J. saw Lewis again at a Halloween activity and then at A.J.’s

kindergarten program. Tr. 110.

{¶42} On cross-examination, Emily admitted that she did not have personal

knowledge regarding the allegations against Lewis and that she did not see Lewis

engage in any inappropriate behavior towards S.J. Tr. 119. She testified that she

was shocked when she heard S.J.’s allegations and that she did not, before May of

2019, have any reason to be concerned about Lewis’s prior interactions with her

children. Tr. 121. Emily also stated that S.J. did not state the full extent of the

allegations on the night that she finally explained why she was fearful of seeing

Lewis at the kindergarten program. Tr. 122.

{¶43} Alice also testified at trial. Tr. 47. She testified that S.J. and Emily

began living in her house in September of 2014 and that S.J. turned twelve in

December of 2019. Tr. 49, 50. Alice stated that Lewis would come to the house

while Emily was still at work. Tr. 59. She noted that Lewis would pay attention to

S.J. but would not pay much attention to S.J.’s younger brother. Tr. 66. Alice

testified that Lewis would go into S.J.’s room and play with her. Tr. 60. She

-21- Case No. 15-20-04

remembers Lewis “sitting there, sitting there on the bed and her [S.J.] too, either on

his lap or sitting beside him and it just, then it went from sitting to laying down on

the bed together.” Tr. 61. Alice stated that Lewis and S.J. would sometimes have

a blanket “on their lap.” Tr. 67. She also saw S.J. playing on Lewis’s phone even

after Emily told Lewis not to allow S.J. to play as much on his phone. Tr. 62.

{¶44} Alice stated that she was not always in the same room as Lewis and

S.J. Tr. 63. She testified that she was sometimes watching television or caring for

A.J. in another room while Lewis and S.J. were in the bedroom. Tr. 63-64. She

affirmed that she did not have “eyes on them 100% of the time.” Tr. 67. Alice also

stated that she has issues with mobility and had to use a cane to get around her house

during the time in which S.J. was living with her. Tr. 66. She further testified that

she could not see into the bedroom where S.J. and Lewis were sitting from the place

she often was in the kitchen. Tr. 68.

{¶45} On cross-examination, Alice stated that she did not want Lewis

coming over before Emily returned from work. Tr. 71. However, she also stated

that she did not tell Lewis to stop coming to the house when Emily was not present.

Tr. 70. Alice testified that, besides sitting or lying down on the bed with S.J., she

did not see Lewis engage in any other inappropriate behavior. Tr. 74. She also

admitted that she did not have any personal observations regarding the allegations

-22- Case No. 15-20-04

that S.J. had raised because she (Alice) was in the other room at the times of the

alleged incidents. Tr. 75.

{¶46} At trial, Detective Huebner testified that he sat down for an interview

with S.J. and Emily on May 20, 2019. Tr. 232. He stated that he then scheduled an

interview with Lewis for May 22, 2019. Tr. 233. A recording of the interview

between Detective Huebner and Lewis was played for the jury. Tr. 241. In this

interview, Lewis stated that he did not sexually abuse S.J. and that he did not touch

her vaginal area. Tr. 253, 261. He further stated that S.J. was lying about him

inappropriately touching her and that S.J. had previously gotten in trouble with

Emily for lying. Tr. 262. Lewis did admit that he let S.J. play games on his phone

and that S.J. had sat on his lap while they were watching television. Tr. 255, 256.

He also stated that he saw S.J. on Halloween and at a kindergarten program he

attended with a friend. Tr. 252, 254. He said that he would watch Emily’s kids at

her house but that other people were around when he was with S.J. Tr. 260, 265.

{¶47} After the interview was played, Detective Huebner testified that he

had another interview with S.J. because she had remembered another incident. Tr.

273-274. He then explained that they did not use a SANE kit to collect physical

evidence because of the length of time that had passed since the alleged incidents.

Tr. 274. He also stated that, given S.J.’s description of the inappropriate touching,

he would not expect any identifiable injuries on S.J.’s body. Tr. 275. He also

-23- Case No. 15-20-04

testified that, in his experience, it was common for a child not to report abuse of this

nature immediately after the incident. Tr. 276. Detective Huebner further testified

that, if a person was grooming a child for sexual abuse, that person would not

generally behave negatively towards that child. Tr. 277.

{¶48} Based on the testimony presented at trial, Lewis raises several

arguments to establish that his convictions are against the manifest weight of the

evidence. First, he argues that Emily and Alice’s testimony was not based on

firsthand knowledge of the allegations. See Tr. 75. However, they did not need to

witness the alleged incidents and provide direct corroboration for S.J.’s allegations

for the jury to find Lewis guilty. See State v. Shifflet,

,

, ¶ 98 (4th Dist.); State v. Patterson,

,

(8th

Dist.); In re C.S., supra, at ¶ 29-30; State v. Tiggett, 11th Dist. Trumbull No. 2018-

T-0036,

.

{¶49} Further, Emily and Alice’s testimony did corroborate a number of

contextual details surrounding S.J.’s essential allegations. Alice testified that Lewis

would come to spend time alone with the children at her house when Emily was at

work; that S.J. would sit on Lewis’s lap on the bed; that S.J. would play on Lewis’s

phone; and that she (Alice) was not always in the same room as S.J. during Lewis’s

visits. Tr. 58, 59, 62, 67, 68, 73. Emily’s testimony established that Lewis spent

time with the children while she was at work; that Lewis let S.J. play on his phone;

-24- Case No. 15-20-04

that Lewis favored S.J.; and that Lewis had driven her Ford Expedition. Tr. 98, 100,

106. This testimony tends to support the credibility of S.J.’s allegations. For these

reasons, we find this argument to be without merit.

{¶50} Second, Lewis argues that the lack of physical evidence renders his

convictions against the manifest weight of the evidence. However, physical

evidence is “not required to sustain a sex offense conviction.” State v. Branch, 3d

Dist. Allen No. 1-12-44,

, citing State v. Sauto, 9th Dist. No.

26404,

. See State v. Thomas, 2d Dist. Montgomery No.

27362,

;

. Further, in this case, Detective

Huebner provided testimony as to why the State was unable to produce any physical

evidence. He explained that physical evidence would not have been available given

the delay in between the alleged incidents and the investigation. Tr. 274. He also

stated that he would not expect S.J. to have any identifiable, physical injury based

on her description of the inappropriate touching. Tr. 275. After considering the

record, we find Lewis’s argument to be without merit.

{¶51} Third, Lewis argues that S.J. failed to identify a specific date for the

allegations. We note that, in this case, more precise dates for the alleged incidents

were not necessary to prove an essential element of these offenses. The testimony

at trial indicates that Emily and Lewis dated in between 2014 and 2017, placing the

alleged incidents during that period of time. Tr. 92. In this timeframe, S.J. was

-25- Case No. 15-20-04

roughly between the ages of seven and ten. Tr. 83. Thus, the State established that

S.J. was under the age of thirteen at all relevant times as is required to prove the

offense of gross sexual imposition under R.C. 2907.05(A)(4).

{¶52} Further, this Court has previously held that, in cases when young

children are the victims of a crime,

‘it is reasonable that they [are] not able to remember exact times and dates of the rapes. This is especially true where the crimes involve several instances of conduct spread out over an extended period.’ State v. Humfleet, 12th Dist. Clermont No. CA84-04-031, CA84-05-036,

, *7 (Sept. 9, 1985), citing State v. Madden,

,

(12th Dist. 1984). See State v. Geboy,

,

(3d Dist. 2001). ‘It is well settled that, particularly in cases involving sexual misconduct with a child, the precise times and dates of the alleged offense or offenses oftentimes cannot be determined with specificity.’ [State v.] Henderson, [8th Dist. Cuyahoga No. 87236,

,] ¶ 14, quoting State v. Koelling, 10th Dist. Franklin Nos. 94APA06-866 and 94APA06- 868,

(March 21, 1995).

State v. Cook, 3d Dist. Auglaize No. 2-18-21,

.

{¶53} While the case before this Court involves the crime of gross sexual

imposition, the logic of Cook is still herein applicable. Cook at ¶ 10. See also State

v. Triplett, 11th Dist. Ashtabula No. 2013-A-0018,

. S.J. was

a young child at the times of the incidents. Tr. 83. Further, the alleged incidents

occurred on multiple occasions in different locations over a period of time. Tr. 160,

163, 167. In the end, Lewis has not, given the facts of this case, demonstrated how

-26- Case No. 15-20-04

the lack of more specific dates for the alleged offenses tends to establish that his

convictions are against the manifest weight of the evidence.

{¶54} Fourth, Lewis also points to the facts that S.J. did not immediately

report the alleged offenses as evidence that this convictions are against the manifest

weight of the evidence. Lewis also questions S.J.’s silence on the grounds that she

never indicated that she had been threatened if she came forward with the

allegations. Detective Huebner addressed both of these issues in his trial testimony.

He stated that, in his experience, it was common for abuse of this nature not to be

reported immediately. Tr. 276. He also stated that, if a child is being groomed, the

abuser would ordinarily not behave negatively towards that child, indicating that

threats may not accompany all abuse of this nature. Tr. 277.

{¶55} Further, courts across this state have concluded that a delay in

reporting allegations of sexual abuse does not necessarily indicate that a conviction

for the related offenses is against the manifest weight of the evidence. State v.

Bones, 2d Dist. Montgomery No. 26017,

, ¶ 33-34; State v. Lykins,

4th Dist. Adams No. 18CA1079,

; State v. Weaver, 7th Dist.

Columbiana No.

,

, ¶ 8, 17; State v. Mathis, 8th Dist.

Cuyahoga No. 83311,

. Thus, we conclude that this

argument is without merit.

-27- Case No. 15-20-04

{¶56} Fifth, Lewis argues that S.J.’s testimony regarding the alleged

incidents was not sufficiently specific. While we have already concluded that S.J.’s

testimony contained enough specificity to provide sufficient evidence to support

Lewis’s convictions, this argument addresses the credibility of S.J.’s testimony.

“[T]he credibility of witnesses is primarily an issue for the trier of fact.” State v.

Sharp, 3d Dist. Putnam No. 12-13-01,

. For this reason, “[w]e

will not substitute our judgment for that of the trier of fact on the issue of witness

credibility unless it is patently clear that the fact finder lost its way.”

{¶57} In this case, the jurors apparently determined that S.J.’s testimony was

credible. For each of these two incidents, S.J. described where she was located;

what she was doing; what Lewis was doing; the area of her body that Lewis touched;

and how Lewis touched her. After reviewing the record, we cannot conclude that

the jury lost its way and created a manifest miscarriage of justice in determining that

S.J.’s testimony was credible. Thus, we find this argument to be without merit.

{¶58} Sixth, Lewis argues that the S.J. did not present any testimony

regarding sexual motivation. While we have already determined that S.J.’s

testimony provided some evidence from which a trier of fact could infer that the

purpose of Lewis’s alleged contact was sexual arousal or gratification, this argument

is about whether such an inference is against the manifest weight of the evidence.

-28- Case No. 15-20-04

Further, we also have already found that the jury did not lose its way in relying on

the credibility of S.J.’s testimony in reaching a verdict.

{¶59} In her deposition, S.J. stated that Lewis put his hand down her pants,

beneath her underwear and rubbed her vaginal area on more than one occasion while

she was at the Tully Street house. Tr. 160-162. She also testified that Lewis put his

hand down her pants, beneath her underwear and touched her vaginal area while

they were in Emily’s Ford Expedition. Tr. 167. There is no indication from S.J.’s

testimony that Lewis’s alleged contact with her vaginal area was accidental or was

undertaken for a non-sexual purpose.

{¶60} Given the circumstances surrounding these incidents and the nature of

this contact, a jury could reasonably infer from S.J.’s testimony that Lewis was

motivated by the purpose of sexual arousal or gratification. Matter of R.C., 2020-

Ohio-1486, --- N.E.3d ---, ¶ 60 (4th Dist.). Further, while Lewis’s statements to

Detective Huebner conflict with S.J.’s testimony as he denied acting in this manner,

the jurors, as finders of fact, were permitted to resolve the conflicts between S.J.’s

testimony and Lewis’s statements in favor of the State. Tr. 253, 261-262. State v.

Harvey, 3d Dist. Marion No. 9-19-34,

.

{¶61} Seventh, Lewis also asserts that S.J.’s testimony about the alleged

incident at his house on Mentzer Church Road was not credible. However, the jury

acquitted Lewis of the charge that arose from this alleged incident. Doc. 40, 42.

-29- Case No. 15-20-04

We assume that Lewis points to S.J.’s testimony underlying this charge to argue that

S.J. was not a credible witness. But in evaluating the charges against Lewis, the

jury, as finder of fact, “was free to believe [or disbelieve] all, part, or none of [the]

* * * testimony” offered by S.J. State v. Dixon, 3d Dist. Crawford No. 3-06-17,

.

{¶62} As is often the case, it is not clear why the jurors chose to acquit Lewis

of one of the three charges against him. However, even if the jurors acquitted Lewis

of this charge because they found S.J.’s testimony not to be credible on this matter,

this would not mean that every word of S.J.’s testimony was entirely lacking in

credibility and that Lewis should have, therefore, been acquitted of all of the charges

against him. A jury does not have to choose between believing all or none of a

witness’s testimony. Dixon at ¶ 26. Thus, the arguments against the charge for

which Lewis was acquitted do not establish that the charges for which he received

convictions are against the manifest weight of the evidence.

{¶63} After considering the evidence presented at trial, we find that this case

does not present the exceptional circumstance in which the evidence presented at

trial weighs heavily against the conviction. Further, we do not find any indication

that the jury lost its way and created a manifest miscarriage of justice. Thus, neither

of Lewis’s convictions are against the manifest weight of the evidence.

Accordingly, Lewis’s first assignment of error is overruled.

-30- Case No. 15-20-04

Third Assignment of Error

{¶64} To argue that the State engaged in prosecutorial misconduct, Lewis

alleges that the prosecutor made improper comments during opening and closing

arguments that were not based on evidence presented at trial.

Legal Standard

{¶65} “The test for prosecutorial misconduct is [1] whether remarks are

improper and, if so, [2] whether they prejudicially affected substantial rights of the

accused.” Lott at 165, citing State v. Smith,

,

(1984). In determining whether the prosecutor’s remarks were improper and

prejudicial, appellate courts generally consider four factors:

(1) the nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant. [State v.] Johnson[,

,

,] ¶ 87 [(3d Dist.)], quoting State v. Braxton,

,

(8th Dist. 1995).

State v. Potts,

,

, ¶ 84 (3d Dist.).

{¶66} In determining whether a prosecutor made improper comments,

appellate courts are to remain mindful of the fact that “the State has ‘wide latitude’

in its closing argument.” State v. Call, 3d Dist. Marion No. 9-03-21, 2004-Ohio-

288, ¶ 15, citing State v. Maurer,

,

(1984). “The

State is largely free to comment on ‘what the evidence has shown and what

-31- Case No. 15-20-04

reasonable inferences may be drawn therefrom.’” Call at ¶ 15, quoting State v. Lott,

,

(1990).

{¶67} In determining whether the remarks were prejudicial, appellate courts

must “evaluate the allegedly improper statements in the context of the entire trial.”

Klein at ¶ 60, citing State v. Treesh,

,

(2001).

“To establish prejudice, a defendant must show that a reasonable probability exists

that, but for the prosecutor’s improper remarks, the result of the proceeding would

have been different.” State v. Thompson,

,

, ¶ 23 (3d

Dist.). “An improper comment does not affect a substantial right of the accused if

it is clear beyond a reasonable doubt that the jury would have found the defendant

guilty even without the improper comments.”

.

Legal Analysis

{¶68} On appeal, Lewis identifies the following portion of the prosecutor’s

opening statement as the basis for this assignment of error:

The evidence is going to show that the Defendant is guilty of at least three counts of Gross Sexual Imposition of a child less than thirteen years of age.

This, ladies and gentlemen of the jury, is what we expect the evidence to show. It will prove that between September of 2014 and October of 2017, the defendant committed, at least, three counts of Gross Sexual Imposition. We think that there were more at the grandmother’s house, but we have at least three counts.

-32- Case No. 15-20-04

Tr. 40-41. Lewis also identifies a portion of the prosecutor’s closing arguments in

this assignment of error:

In the indictment, there are three counts. We believe, and the evidence showed, this happened at the grandparents’ house on Tully Street in Convoy, the Defendant’s house on Mentzer Church Road, and in the Ford truck probably somewhere between the two.

And it probably happened more than once at the grandparents’ house in Convoy.

Tr. 297. Lewis asserts that a prosecutor was not permitted to make statements that

were not based on the evidence at trial on matters that were foreign to the case.

{¶69} We will begin our analysis by considering the nature of these remarks.

In this case, S.J. testified that Lewis touched her under her clothing “several times

at my grandma’s house” and that “[i]t happened when nobody was really around,

which was often.” Tr. 163. Thus, there was testimony at trial that indicated S.J.

was inappropriately touched by Lewis on multiple occasions at the Tully Street

house. Tr. 163. Contrary to Lewis’s assertions, the prosecutor’s remarks were

based on evidence presented to the jury at trial.

{¶70} Given the context of this trial, it is clear that the prosecutor was

explaining that Lewis had only one charge for his actions at the Tully Street house

even though the evidence indicated that he may have committed multiple offenses

there. These statements were not purely conjectural or based on matters that had

not been presented as evidence to the jury. This was an appropriate explanation of

-33- Case No. 15-20-04

the evidence that had been presented at trial to the jury. Since Lewis has not

established that the prosecutor’s comments were improper, he cannot, under the

facts of this case, establish that he was unfairly prejudiced by these remarks.

{¶71} In the end, Lewis has not carried the burden of demonstrating that the

prosecutor made comments that were improper and unfairly prejudicial. For this

reason, he is unable to establish that the State engaged in prosecutorial misconduct.

Accordingly, Lewis’s third assignment of error is overruled.

Fourth Assignment of Error

{¶72} Lewis argues that the trial court erred by admitting an unfairly

prejudicial photograph at trial.

Legal Standard

{¶73} Evidence is relevant if it “ha[s] any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Evid.R. 401. Relevant

evidence is generally admissible. Evid. 402. However, relevant evidence must be

excluded “if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A).

{¶74} Under the Ohio Rules of Evidence, “the admission of photographs is

left to the sound discretion of the trial court.”

, citing Evid.R.

403, 611(A). Thus, “[a]n appellate court reviews a trial court’s determination on

-34- Case No. 15-20-04

the admission of evidence under an abuse of discretion standard.” State v. Duncan,

3d Dist. Allen No. 1-19-75,

. An appellate court is not to

substitute its judgment for that of the trial court but will reverse the trial court’s

decision if it is unreasonable, arbitrary, or capricious. State v. Howton, 3d Dist.

Allen No. 1-16-35,

.

{¶75} However, “if the party wishing to exclude evidence fails to

contemporaneously object at trial when the evidence is presented, that party waives

for appeal all but plain error.” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-

Ohio-1787, ¶ 53-54. Under Crim.R. 52(A), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.” Crim.R. 52(B).

“In order to find plain error under Crim.R. 52(B), there must be an error, the error must be an ‘obvious’ defect in the trial proceedings, and the error must have affected ‘substantial rights.’” State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009- Ohio-6524, ¶ 12, quoting State v. Barnes,

,

(2002). ‘The standard for plain error is whether, but for the error, the outcome of the proceeding clearly would have been otherwise.’ State v. Hornbeck,

, 2003- Ohio-6897,

(2d Dist.), citing State v. Long,

,

(1978).

State v. Taflinger, 3d Dist. Logan No. 8-17-20,

. “The

defendant bears the burden of establishing an obvious defect in the proceedings.”

State v. Queen, 3d Dist. Logan No. 8-19-41,

. Further, “[w]e

recognize plain error ‘with the utmost caution, under exceptional circumstances and

-35- Case No. 15-20-04

only to prevent a manifest miscarriage of justice.’” State v. Cartlidge, 3d Dist.

Seneca No. 13-18-33,

, quoting State v. Frye, 3d Dist. Allen

No. 1-17-30,

.

Legal Analysis

{¶76} Lewis argues that the trial court erred by admitting a picture of S.J.

into evidence as an exhibit. Ex. 7. He asserts that the admission of this exhibit was

unfairly prejudicial because the picture depicted S.J. in an emotional state. We note,

however, that the Defense did not raise an objection to the admission of this

evidence at trial. Tr. 235, 277-278, 280. For this reason, we will only review the

admission of this picture for plain error. State v. Wendel,

,

, ¶ 23 (3d Dist.).

{¶77} At trial, Detective Huebner identified the challenged picture as a

screenshot from a video recording of the interview that he had with S.J. Tr. 236.

Detective Huebner brought a copy of this screenshot to an interview he subsequently

had with Lewis. Tr. 267. At this interview, Detective Huebner presented Lewis

with this picture to convey S.J.’s emotional state at the time she was reporting her

allegations about Lewis’s conduct. Tr. 267. In this interview, Detective Huebner

and Lewis engaged in the following exchange over this picture:

[Detective Huebner]: Well, I mean to be honest with you, um, like I said I sat through and was a huge part of the interview with [S.J.] and a lot of the details and information she shared, she did not

-36- Case No. 15-20-04

come across to me as making up this story and making up all of this information.

***

[Detective Huebner]: This is what, this is during the interview, it’s a picture of how that girl was crying and acting when trying to share the details that she said happened to her. And I find it, I don’t find an 11-year-old kid to be making up that type of emotions if it didn’t happen to them.

[Lewis]: No. Like I said, you can confer Emily too [sic] back it [sic] when her and I were still together and Emily was having a problem with her lying, [S.J.] would act the exact same way and it’d be a screaming match between her and Emily.

[Detective Huebner]: This wasn’t screaming.

[Lewis]: Oh I understand that.

[Detective Huebner]: This was a girl that was very, very upset and had a very, very hard time sharing the details of what she’s reporting took place with her. This is how her mom and her broke down at the end of the interview.

Tr. 266-267. Ex. 7. A recording of this interview was played at trial. Tr. 241.

{¶78} We note that Detective Huebner described this picture in the interview

and that the jury would have heard this description in the recording regardless of

whether the photograph had been admitted as an exhibit. Tr. 266-267. The State

argues persuasively that, under the circumstances in this case, “[i]t would have been

more prejudicial to permit the jury to speculate about the content of the photograph

referenced as opposed to simply showing it to them.” Appellee’s Brief, 19. This

-37- Case No. 15-20-04

picture enabled the jurors to understand this portion of the recorded interview and

was, therefore, relevant evidence.

{¶79} On appeal, Lewis has not demonstrated how this picture was unfairly

prejudicial. He also has not explained, pursuant to the plain error standard, how the

outcome of his trial would have been different in the absence of this one picture.

After reviewing the evidence in the record, we conclude that Lewis would have been

convicted even if this one picture had been excluded. Since Lewis has not carried

the burden of establishing plain error, his fourth assignment of error is overruled.

Fifth Assignment of Error

{¶80} Lewis points to three instances in which his trial counsel made

decisions that allegedly deprived him of his right to the effective assistance of

counsel.

Legal Standard

{¶81} “Under Ohio law, ‘a properly licensed attorney is presumed to carry

out his duties in a competent manner.’”

, quoting State v.

Gee, 3d Dist. Putnam No. 12-92-9,

(July 22, 1993). “For this

reason, the appellant has the burden of proving that he or she was denied the right

to the effective assistance of counsel.” State v. Cartlidge, 3d Dist. Seneca No. 13-

19-44,

. “In order to prove an ineffective assistance of counsel

claim, the appellant must carry the burden of establishing (1) that his or her

-38- Case No. 15-20-04

counsel’s performance was deficient and (2) that this deficient performance

prejudiced the defendant.” State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-

3618, ¶ 24, quoting Strickland v. Washington,

,

,

(1984).

{¶82} In order to establish deficient performance, the appellant must

demonstrate that trial “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

, quoting

. In order to establish prejudice,

“the defendant must show a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different.” State v.

,

quoting State v. Bibbs,

,

, ¶ 13 (3d Dist.). If the

appellant does not establish one of these two prongs, the appellate court does not

need to consider the facts of the case under the other prong of the test. State v.

Baker, 3d Dist. Allen No. 1-17-61,

, citing State v. Walker,

,

, ¶ 20 (3d Dist.).

Legal Analysis

{¶83} Failure to object during opening and closing statements: Lewis argues

that his defense counsel should have objected to several allegedly improper remarks

that the prosecutor made during opening and closing arguments. Lewis identified

these allegedly improper comments in his third assignment of error. We begin our

-39- Case No. 15-20-04

analysis by noting that “[t]he failure to object is not a per se indicator of ineffective

assistance of counsel because counsel may refuse to object for tactical reasons.”

State v. Wuensch,

,

(8th Dist.).

{¶84} Further, in disposing of the third assignment of error, we determined

that the comments that Lewis identified were not improper. We cannot find that

defense counsel’s performance was deficient because he failed to object to

permissible comments. State v. Jackson, 4th Dist. Pickaway No. 11CA20, 2012-

Ohio-6276, ¶ 34 (holding that, “[i]f prosecutorial misconduct did not occur, the

failure to object cannot constitute ineffective assistance of counsel.”). We also

cannot find that the result of this trial would have been different had Lewis’s defense

counsel objected to these permissible comments. Thus, this argument is without

merit.

{¶85} Failure to challenge jurisdiction: Lewis argues that his defense

counsel should have challenged his conviction for the incident in the Ford

Expedition on the grounds that the State failed to establish venue. Lewis alleged

that the State failed to establish venue for this charge in his second assignment of

error. In our analysis of those arguments, we determined that the State did properly

establish venue for this particular charge.

{¶86} Since the State proved venue, the defense counsel’s decision not to

challenge venue does not constitute deficient performance. State v. Walker, 5th

-40- Case No. 15-20-04

Dist. Licking No. 01-CA-00091,

, ¶ 15; State v. Cornwell, 4th Dist.

Pickaway No. 10CA7,

. Further, we also cannot find that the

outcome of Lewis’s trial would have been different if his defense counsel had raised

a challenge before the trial court that has since failed on appeal. State v.

Witherspoon, 8th Dist. No. 94475,

, ¶ 33 (holding that “the failure to

do a futile act cannot be the basis for claims of ineffective assistance of counsel and

is not prejudicial.”). For these reasons, this argument is without merit.

{¶87} Failure to object to State’s Exhibit: Lewis argues that his defense

counsel should have objected to the admission of State’s Exhibit 7. This exhibit

was the subject of Lewis’s fourth assignment of error. In that analysis, we

concluded, pursuant to the plain error standard, that the outcome of his trial would

not have been different in the absence of this one exhibit. Thus, we cannot find that

the outcome of this trial would have been different if his defense counsel had

objected to this same picture at trial. State v. Drippon, 9th Dist. Medina No. 2417-

M,

, *3 (Oct. 4, 1995); State v. Daniels, 9th Summit No. 26406,

. Thus, this argument is without merit.

{¶88} After examining each of these arguments, we conclude that Lewis has

not carried the burden of establishing that his defense counsel’s performance was

deficient and prejudiced his substantial rights. He has not, therefore, demonstrated

-41- Case No. 15-20-04

that he was denied his right to the effective assistance of counsel. Accordingly,

Lewis’s fifth assignment of error is overruled.

Sixth Assignment of Error

{¶89} Lewis argues that he was deprived of a fair trial because of the

cumulative effect of the errors that he has identified his first five assignments of

error.

Legal Standard

{¶90} “The constitutional ‘guarantee of a fair trial does not mean an error-

free or perfect trial * * *.’”

, quoting City of Columbus v.

Forest,

,

, (10th Dist. 1987). However,

“[u]nder the doctrine of cumulative error, ‘a conviction will be reversed where the

cumulative effect of errors in a trial deprives a defendant of the constitutional right

to a fair trial even though each of numerous instances of trial court error does not

individually constitute cause for reversal.’”

, quoting State v.

Garner,

,

(1995). “To find cumulative error,

a court must first find multiple errors committed at trial and determine that there is

a reasonable probability that the outcome below would have been different but for

the combination of the harmless errors.” State v. Stober, 3d Dist. Putnam No. 12-

13-13,

, quoting In re J.M., 3d. Dist. Putnam No. 12-11-06,

.

-42- Case No. 15-20-04

Legal Analysis

{¶91} Lewis asserts that the alleged errors that he identified in his prior five

assignments of error provide a basis for his convictions to be reversed pursuant to

the doctrine of cumulative error. However, we have already determined the

arguments in these five prior assignments of error are without merit. Since Lewis

has not identified any actual errors that were committed during his trial, the doctrine

of cumulative error is herein inapplicable. State v. Mitchell, 3d Dist. Union No. 14-

19-14,

. Thus, Lewis’s sixth assignment of error is overruled.

Conclusion

{¶92} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Van Wert County Court of Common Pleas

is affirmed.

Judgment Affirmed

PRESTON and ZIMMERMAN, J.J., concur.

/jlr

-43-