[Cite as State v. Allen,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

State of Ohio, : Case No. 21CA3736

Plaintiff-Appellee, : DECISION AND JUDGMENT ENTRY v. :

Brian M. Allen, : RELEASED 4/05/2022

Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:

Victoria Bader, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, Ohio, for appellant.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee. ______________________________________________________________________ Hess, J.

{¶1} Brian M. Allen appeals from a judgment of the Ross County Court of

Common Pleas convicting him of two counts of gross sexual imposition. In his first

assignment of error, Allen contends that the trial court committed plain error when it

admitted irrelevant and prejudicial photographs. However, the court could conclude the

photographs have a tendency to make it more probable that Allen caused the victim to

have sexual contact with him and that their probative value was not substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury. Because the court did not abuse its discretion, let alone commit plain error, in

determining that the photographs were relevant and admissible under Evid.R. 403(A), we

overrule the first assignment of error. Ross App. No. 21CA3736 2

{¶2} In his second assignment of error, Allen contends that his convictions are

against the manifest weight of the evidence. After weighing the evidence and all

reasonable inferences, considering the credibility of the witnesses after according the

requisite deference to the jury’s determinations, we conclude that in resolving evidentiary

conflicts, the jury did not clearly lose its way or create a manifest miscarriage of justice so

that we must reverse its verdict. Therefore, we overrule the second assignment of error.

{¶3} In his third assignment of error, Allen contends that trial counsel provided

ineffective assistance by failing to object to photographs. However, Allen failed in his

burden to show that trial counsel’s performance was both deficient and prejudicial.

Accordingly, we overrule the third assignment of error and affirm the trial court’s judgment.

I. FACTS AND PROCEDURAL HISTORY

{¶4} The Ross County grand jury indicted Allen on two counts of gross sexual

imposition in violation of R.C. 2907.05(A)(4), third-degree felonies. Count I alleged that

on or about August 2, 2015, through April 1, 2017, Allen had sexual contact with another,

who was not his spouse, when the other person was less than 13 years of age. Count II

alleged that during the same period, Allen caused another, who was not his spouse, to

have sexual contact with him when the other person was less than 13 years of age. Allen

pleaded not guilty, and after the trial court overruled his motion to suppress statements

he made to law enforcement, the matter proceeded to a jury trial.

{¶5} C.L. (“Mother”) testified that she is the mother of L.L. (d.o.b. 8/2/12) and

G.A. When L.L. was two years old, Mother met and moved in with Allen, who was

Mother’s boyfriend for four years and is the father of G.A. They lived in a two-bedroom,

one-bathroom home on Vigo Road in Ross County. Mother and the children shared a Ross App. No. 21CA3736 3

bedroom with Allen and his mother, and evidently Allen’s grandmother used the other

bedroom. One night when L.L. was two years old, Mother was in bed and heard L.L. tell

Allen, “No,” and yell and scream at him to leave her alone. Mother saw Allen touching

L.L.’s chest over her pajamas. Mother told Allen to leave L.L. alone because Mother “was

getting sleep” and “had to work in the morning.” Months later, Allen came into the

bathroom while Mother was bathing L.L. Allen said he had to use the restroom, and

despite Mother’s protests, he exposed his penis and urinated. He started “playing with”

his penis and told Mother it was ok for L.L. “to play with it.” Mother told him that it was

“not ok for her to see it.” At some point during this encounter, Mother closed the shower

curtain so Allen could not see L.L. but later got her out of the tub. Mother did not contact

law enforcement because she was scared that Allen “and his mom and them would do

something.” Mother acknowledged that she did not report Allen to law enforcement until

after she and the children moved in with Mother’s aunt, D.H. (“Aunt”), on August 3, 2018,

and custody proceedings regarding G.A. had commenced.

{¶6} Mother testified about State’s Exhibits 1-17. Exhibit 1 is a photograph of

part of L.L.’s bedroom at Aunt’s house. Exhibit 2 is a photograph of part of L.L.’s bed.

Exhibit 3 is a photograph of another part of the bed and drawings on a wall behind it.

Exhibits 4 through 7 are photographs which depict closer views of the drawings on the

wall, which Mother described as including a cat with a penis near its tail, a cat with a penis

in its mouth, a penis, and a boy with a penis. Exhibit 8 is a photograph of a book, which

Mother testified was L.L.’s library book and found in a toybox. Exhibits 9 through 17 are

photographs of nine pages in the book in which someone added what Mother described

as penises to images in the book. Mother testified that she found the drawings on the Ross App. No. 21CA3736 4

wall within weeks of moving into Aunt’s house but admitted having trouble recalling dates

and times.

{¶7} Mother’s cousin and Aunt’s daughter, N.H. (“Cousin”), testified that in

September 2018, L.L. made concerning disclosures to her. Cousin did not know what to

do, so she called a number related to sexually assaulted children and was advised to go

to the sheriff’s office. Then, Cousin contacted Mother and Aunt. They went to the Perry

County Sheriff’s Office but were told to go to the Ross County Sheriff’s Office.

{¶8} Aunt testified that in August 2018, Mother, L.L., and G.A. moved in with her.

L.L. told Cousin “stuff that was not good about things that happened to her down there on

Vigo Road,” and they called a sexual abuse hotline. They were told to go to the sheriff’s

office to file a report. On September 11, 2018, they went to the Perry County Sheriff’s

Office but were advised to go to the Ross County Sheriff’s Office. They did so and met

with Deputy Zachary McGoye. Subsequently, Aunt saw drawings of penises in L.L.’s

bedroom and told Detective Tony Wheaton about them. Aunt initially testified that she

saw the drawings about three or four months after Mother and the children moved in with

her but later testified that she was “not real sure about” when she saw them.

{¶9} Deputy McGoye of the Ross County Sheriff’s Office testified that on

September 11, 2018, he interviewed Mother and Aunt about sexual assault allegations.

Mother claimed to have witnessed alleged events about a year prior. Deputy McGoye

forwarded the information he gathered to his supervisor.

{¶10} Detective Wheaton of the Ross County Sheriff’s Office testified that on

October 4, 2018, he was assigned to the case. On January 24, 2019, he interviewed

Allen for 30 to 40 minutes in Allen’s kitchen. Allen denied any sexual involvement with Ross App. No. 21CA3736 5

L.L., denied touching her vaginal area for any reason, and disclosed that he recently

started taking medication for anxiety. On July 31, 2019, Allen voluntarily came to the

Ross County Sheriff’s Office for a second interview. He again denied any wrongdoing.

The interview ended after about 20 minutes because Allen said he felt ill and left.

{¶11} On August 15, 2019, Allen voluntarily came to the sheriff’s office again for

a third interview which took place in a “relatively small room” with windows looking

outside. Detective Wheaton did not record the first part of the interview because the

recording equipment in the room was not operational. Allen initially “continued with his

denial.” Then he recalled a time when he inadvertently touched L.L.’s vagina while

bathing her. Detective Wheaton reminded Allen that he previously denied giving L.L.

baths. Allen “changed his statement” and recalled a time when he touched L.L.’s vagina

in their bedroom sometime when she was three or four years old and prior to April 1,

2017. Allen said that they were watching television, that he was extremely intoxicated,

and that for an unknown reason, he began to touch L.L.’s exposed vagina. He was not

sure whether he removed L.L.’s clothing to expose her vagina or placed his hand inside

her clothing. However, “he could clearly remember that he was rubbing the outside of

her vagina.” Allen admitted that at some point, he grabbed L.L.’s hand and placed it on

his exposed penis. At first, Allen “was describing a manner that is consistent with

masterbation [sic]” but “quickly changed that and stated that she was just touching and

holding on to it. For an undetermined amount of time.” Detective Wheaton left the

interview room with the door open for a few minutes and retrieved a recording device from

his office. He recorded the rest of the interview with Allen’s permission. Ross App. No. 21CA3736 6

{¶12} The trial court admitted into evidence a transcript of the recorded part of the

interview. During that part of the interview, Allen confirms Detective Wheaton reviewed

his Miranda rights before the interview began. Detective Wheaton reviews the rights

again, and Allen confirms that he understands them. Detective Wheaton recaps

statements Allen made during the first part of the interview. Allen confirms that he rubbed

the outside of L.L.’s vagina and put her hand on his penis when she was three or four

years old. Allen states that he did not tell the truth before because he was afraid that he

would “lose everything.” Detective Wheaton asks Allen to describe Detective Wheaton’s

treatment of him. Allen says, “Well, fair. Kind of pushy.” Detective Wheaton says, “Okay.

How do you feel that I was pushy?” Allen says, “I don’t know you just came off that way.”

Detective Wheaton asks whether there is anything Allen wants him “to tell anybody,” and

Allen says, “Just please don’t look at me badly.”

{¶13} Detective Wheaton testified that later in the day after the third interview,

Allen called him and begged him to drop the investigation. Allen said that he had “learned

his lesson” and that “he would never touch another drop of alcohol” or “be around a young

child to put himself in that situation again.” A day or two later, Allen again called and

begged Detective Wheaton to drop the investigation. In December 2019, Detective

Wheaton learned about the drawings in L.L.’s bedroom and book.

{¶14} Julie Oates, a licensed professional clinical counselor, testified that on

January 9, 2020, she was the executive director of the Child Protection Center of Ross

County and interviewed L.L. L.L. “was hesitant to come back to the interview” and asked

“safety questions” such as whether they could lock the doors and “keep people outside.”

During the interview, she was quiet, chewed her fingernails, kept her head down, made Ross App. No. 21CA3736 7

poor eye contact, and consistently said, “I don’t know.” However, L.L. told Oates that

Allen “had touched her peaches with his hand,” that she had seen him “touching his

w[ie]ner” and “white stuff coming out,” and that his “w[ie]ner touched her peaches.” On

anatomical drawings, L.L. identified “peaches” as “the vaginal/genital area” and a

“w[ie]ner” as “the male genitalia.” Oates made a referral for a medical examination of L.L.

Dr. Kristine McCallum performed the examination on January 15, 2020, but could not

recall any details of it at trial.

{¶15} Allen testified that he voluntarily agreed to talk to Detective Wheaton three

times. Allen claimed the first interview occurred in Detective Wheaton’s vehicle but

admitted Detective Wheaton did not threaten or hit him during it. Allen left the second

interview because he felt ill due to his anti-anxiety medication. He admitted Detective

Wheaton did not force him to stay and that he had no problem leaving. Allen testified that

he initiated the third interview because he wanted to “get some things straight” after

receiving threats from L.L.’s family. The third interview lasted about 45 minutes. Allen

admitted that before it began, Detective Wheaton asked whether he was under the

influence of alcohol or drugs, and he said, “No.” But the interview room was small, and

Allen felt “anxious and claustrophobic.” So “throughout the time” he was talking to

Detective Wheaton, he took about eight capsules of anti-anxiety medication—more than

the recommended dose. Allen later testified that he took the capsules outside of Detective

Wheaton’s presence. The medication decreased his anxiety but made him “extremely

drowsy” and feel unlike himself. Allen told Detective Wheaton that he was not feeling well

and made multiple requests to end the interview, but Detective Wheaton would not let

him leave. Ross App. No. 21CA3736 8

{¶16} Allen claimed he never touched L.L. inappropriately but felt “obligated” to

tell Detective Wheaton “what he wanted to hear.” Allen testified that he admitted to

inappropriate contact with L.L. during the third interview “[b]ecause I felt like that was the

only way out. I was so anxious to get out and my stomach just wasn’t agreeing with the

medication. I wanted to throw up. I could feel my heart rate going up. I just wanted out

of that room. I was extremely claustrophobic and I was, I just wanted out – completely

out.” Allen testified that he did not get out of the room until Detective Wheaton “finally got

what he wanted on tape.” Detective Wheaton did not hit or threaten Allen during the third

interview. However, Detective Wheaton was “extremely pushy” and “aggressive.” Allen

claimed Detective Wheaton never left the interview room to retrieve a recorder but rather

used one from a desk in the interview room. Allen denied calling Detective Wheaton and

asking him to end the investigation.

{¶17} The jury found Allen guilty as charged. The trial court sentenced him to 48

months in prison on each count and ordered that he serve the sentences concurrent with

one another.

II. ASSIGNMENTS OF ERROR

{¶18} Allen assigns three errors for our review:

I. The trial court committed plain error when it allowed the admission of irrelevant and prejudicial photographs.

II. Mr. Allen’s convictions were against the manifest weight of the evidence.

III. Brian Allen was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution; and Article I, Section 10, Ohio Constitution. Ross App. No. 21CA3736 9

III. ADMISSION OF PHOTOGRAPHS

{¶19} In the first assignment of error, Allen contends that the trial court committed

plain error when it admitted the photographs because they are irrelevant and prejudicial.

Allen asserts that the drawings in the photographs were irrelevant because they “were

found approximately two to three years after the alleged offenses took place,” and “[t]here

was no testimony connecting these drawings to the charges against Mr. Allen, no

statements from L.L., and no medical opinion or expert testimony.” He asserts that even

if the drawings were relevant, their probative value was substantially outweighed by the

danger of unfair prejudice and confusing the jury. According to Allen, the state sought

admission of the photographs “for the sole purpose of inflaming the passions of the jury

and asking them to find an unfounded causal connection between the allegations against

[him] and the unrelated rudimentary drawings found in a seven-year-old’s bedroom.” He

maintains that the photographs prejudiced him because “there is no overwhelming

independent evidence of guilt” and the “highly inflammatory exhibits served to confuse

the jury and assuredly resulted in the jury’s finding of guilt.”

{¶20} Crim.R. 52(B) states: “Plain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” To prevail

under the plain error standard, “the defendant must establish that an error occurred, it

was obvious, and it affected his or her substantial rights.” State v. Fannon, 2018-Ohio-

5242,

(4th Dist.). To affect the defendant’s substantial rights, the

error must have affected the trial’s outcome. State v. Rogers,

, 2015-

Ohio-2459,

. “The accused is therefore required to demonstrate a

reasonable probability that the error resulted in prejudice—the same deferential standard Ross App. No. 21CA3736 10

for reviewing ineffective assistance of counsel claims.” (Emphasis deleted.)

“But

even if an accused shows that the trial court committed plain error affecting the outcome

of the proceeding, an appellate court is not required to correct it * * *.” Id. at ¶ 23. The

Supreme Court of Ohio has “ ‘admonish[ed] courts to notice plain error “with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” ’ ” (Alteration and emphasis sic.) Id., quoting State v. Barnes,

,

(2002), quoting State v. Long,

,

(1978), paragraph three of the syllabus.

{¶21} “The admission or exclusion of evidence generally rests within a trial court’s

sound discretion.” State v. McCoy, 4th Dist. Pickaway No. 19CA1,

. “Thus, absent an abuse of discretion, an appellate court will not disturb a trial court’s

ruling regarding the admissibility of evidence.”

An abuse of discretion is “an

unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or action that

no conscientious judge could honestly have taken.” State v. Brady,

,

,

.

{¶22} “ ‘Relevant evidence’ means evidence having 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. “Evidence

which is not relevant is not admissible.” Evid.R. 402. Relevant evidence is generally

admissible. Evid.R. 402. However, Evid.R. 403(A) provides that relevant evidence “is

not admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” Ross App. No. 21CA3736 11

{¶23} Unfair prejudice is not damage to the defendant’s case which “ ‘results from

the legitimate probative force of the evidence; rather it refers to evidence which tends to

suggest decision on an improper basis.’ ” State v. Lang,

, 2011-Ohio-

4215,

, ¶ 89, quoting United States v. Mendez-Ortiz,

(6th

Cir. 1986). “[I]f the evidence arouses the jury’s emotional sympathies, evokes a sense of

horror, or appeals to an instinct to punish, the evidence may be unfairly prejudicial.

Usually, although not always, unfairly prejudicial evidence appeals to the jury’s emotions

rather than intellect.” Oberlin v. Akron Gen. Med. Ctr.,

,

(2001), quoting Weissenberger’s Ohio Evidence, Section 403.3 (2000).

{¶24} Evid.R. 403(A) “manifests a definite bias in favor of the admission of

relevant evidence,” as “[t]he dangers associated with the potentially inflammatory nature

of the evidence must substantially outweigh its probative value before the court should

reject its admission.” (Emphasis sic.) State v. Irwin, 4th Dist. Hocking Nos. 03CA13 &

03CA14,

. “Thus, ‘[w]hen determining whether the relevance of

evidence is outweighed by its prejudicial effects, the evidence is viewed in a light most

favorable to the proponent, maximizing its probative value and minimizing

any prejudicial effect to the party opposing admission.’ ” McCoy, 4th Dist. Pickaway No.

19CA1,

, quoting State v. Lakes, 2d Dist. Montgomery No. 21490,

.

{¶25} The trial court could conclude that the photographs were relevant and that

their probative value was not substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury. One can infer that L.L. made the drawings

based on their location—on the walls of her bedroom and inside her library book. The Ross App. No. 21CA3736 12

fact that a young female child was familiar with the appearance of a penis and drew

multiple penises after living with Allen has a tendency to make it more probable that he

made her touch his penis than it would be without the drawings. This is of consequence

to the determination of the action because the state had to prove that Allen caused L.L.

to have sexual contact with him to establish Count II. See R.C. 2907.05(A)(4) (setting

forth the offense of gross sexual imposition); see also R.C. 2907.01(B) (defining sexual

contact to include touching the genitals of another for the purpose of sexually arousing or

gratifying either person). The rudimentary drawings do not have a tendency to arouse

emotional sympathies, evoke a sense of horror, or appeal to an instinct to punish so as

to be considered unfairly prejudicial. Moreover, Allen has not articulated how the

drawings could confuse the issues or mislead the jurors, who were aware of the time gap

between the alleged offenses and drawings and that L.L. did not explain the drawings.

Therefore, we conclude that the trial court did not abuse its discretion, let alone commit

plain error, in determining that the photographs were relevant and admissible under

Evid.R. 403(A). Accordingly, we overrule the first assignment of error.

IV. MANIFEST WEIGHT OF THE EVIDENCE

{¶26} In the second assignment of error, Allen contends that his convictions are

against the manifest weight of the evidence. He suggests that the jury should have

believed his testimony instead of his admissions. He emphasizes his prior denials of

wrongdoing and the delay in recording the third interview. Allen also emphasizes his

testimony that during the third interview, he felt drowsy and unlike himself due to anti-

anxiety medication, that Detective Wheaton prevented him from leaving multiple times,

and that he told Detective Wheaton what he wanted to hear to escape the pressure of the Ross App. No. 21CA3736 13

interrogation. Allen asserts that L.L.’s statements to Oates lack credibility because L.L.’s

“young age calls into question her ability to accurately recall events that occurred years

prior” and “her susceptibility to influence and the veracity of her disclosure.” He states

that it is “clear” that L.L. “struggled to discuss the allegations” and often said, “I don’t

know,” when answering questions. In addition, Allen claims that Mother’s testimony “was

inconsistent, conflicting, and lacked sufficient credibility.” He asserts it is suspicious that

Mother did not report concerns about him until after the initiation of custody proceedings

regarding G.A., which gave her a motive to lie. He notes that Mother told law enforcement

she witnessed concerning behavior in 2017 but only testified about “two incidents that

occurred in 2014.” Allen also asserts that Mother “struggled to answer questions” and

“recall dates and details.”

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

evidence, an appellate court

must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that we must reverse the conviction.

To satisfy its burden of proof, the state must present enough substantial credible evidence to allow the trier of fact to conclude that the state had proven all the essential elements of the offense beyond a reasonable doubt. However, it is the role of the jury to determine the weight and credibility of evidence. “ ‘A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio- 3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014- Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility. Ross App. No. 21CA3736 14

(Citations omitted.) State v. Thacker, 4th Dist. Lawrence No. 19CA18,

. “Ultimately, a reviewing court should find a trial court’s decision is against the

manifest weight of the evidence only in the exceptional case where the evidence weighs

heavily against the decision.” State v. Gillian, 4th Dist. Gallia No. 16CA11, 2018-Ohio-

4983, ¶ 28, citing State v. McKelton,

,

,

.

{¶28} R.C. 2907.05(A)(4) states: “No person shall have sexual contact with

another, not the spouse of the offender [or] cause another, not the spouse of the offender,

to have sexual contact with the offender * * * when * * * [t]he other person * * * is less than

thirteen years of age, whether or not the offender knows the age of that person.” “ ‘Sexual

contact’ means 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). Allen does

not dispute that L.L. was not his spouse and was less than 13 during the time period

alleged in the indictment; rather, Allen disputes that he had sexual contact with L.L. or

caused her to have sexual contact with him.

{¶29} The jury was free to reject Allen’s testimony and believe his admissions that

during the time period alleged, he touched L.L.’s vagina and caused her to touch his

penis. Although Allen initially denied any wrongdoing, during the recorded part of the

third interview, he admitted to lying because he was afraid of losing “everything.” The

claim that Detective Wheaton pressured Allen into confessing during the third interview is

undercut by several facts. During earlier interviews when Allen denied wrongdoing,

Detective Wheaton did not pressure Allen or prevent him from terminating the interviews. Ross App. No. 21CA3736 15

Detective Wheaton never hit or threatened Allen. The third interview only lasted about

45 minutes. During the recorded part of the interview, Allen indicated that he understood

that he had the right to remain silent and talk to a lawyer but still responded to questions

and never asked to leave. And when Detective Wheaton asked Allen to describe

Detective Wheaton’s treatment of him, Allen said he was “fair” and “[k]ind of pushy” but

could not articulate how Detective Wheaton had been pushy.

{¶30} The jury had no obligation to believe that Allen took an excessive amount

of medication during the third interview due to anxiety and claustrophobia or was so

affected by medication that he made a false confession. Allen initiated the third interview

and voluntarily went to it. Although it occurred in a small room, there were windows

looking outside, and there is no evidence Allen told Detective Wheaton that he felt

claustrophobic or asked to move to a more spacious location. In addition, Allen’s

testimony that he took about eight capsules of anti-anxiety medication throughout the time

he was talking to Detective Wheaton is inconsistent with Allen’s later testimony that he

did not take the medication in Detective Wheaton’s presence.

{¶31} The jury was also free to believe L.L.’s statements. When L.L. described

her interactions with Allen, she used language one might expect from a young child. The

jury did not have to reject her statements merely because she was young, said she did

not know the answer to some questions, and exhibited discomfort during the interview.

The jury could have reasonably concluded she felt uncomfortable about recounting

traumatic events to a stranger. Moreover, Allen’s admissions were consistent with some

of L.L.’s statements. Allen and L.L. agreed that he touched her vagina and that he caused Ross App. No. 21CA3736 16

her to touch his penis, though L.L. indicated Allen’s penis touched her vagina, and Allen

told Detective Wheaton it touched her hand.

{¶32} With respect to Mother, even if her testimony about Allen’s conduct was so

incredible as to be unworthy of the jury’s acceptance of it, the convictions would not be

against the manifest weight of the evidence. As we explained above, the jury was free to

believe Allen’s admissions and L.L.’s statements. The jury also could reasonably infer

that Allen acted for the purpose of sexually arousing or gratifying himself.

{¶33} Having reviewed the entire record, we cannot say that this is an exceptional

case where the evidence weighs heavily against the convictions, that the jury lost its way,

or that a manifest miscarriage of justice has occurred. Because the convictions are not

against the manifest weight of the evidence, we overrule the second assignment of error.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

{¶34} In the third assignment of error, Allen contends that trial counsel provided

ineffective assistance. Allen asserts counsel should have objected to the photographs

under Evid.R. 402 and 403. He claims the “significant number of drawings” in the

photographs were irrelevant and cumulative and that he suffered prejudice “because the

jury was shown and asked to consider irrelevant, highly inflammatory photographs.”

{¶35} To prevail on an ineffective assistance claim, a defendant must show: “(1)

deficient performance by 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. Short,

,

,

, citing Strickland v.

Washington,

,

,

(1984). Failure Ross App. No. 21CA3736 17

to satisfy either part of the test is fatal to the claim. See

. The defendant

“has the burden of proof because in Ohio, a properly licensed attorney is presumed

competent.” State v. Gondor,

,

,

.

We “must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’ ”

, quoting Michel v. Louisiana,

,

,

(1955). “Tactical or strategic trial decisions, even if ultimately

unsuccessful, do not generally constitute ineffective assistance of counsel.” In re

Wingo,

,

(4th Dist. 2001).

{¶36} Trial counsel was not ineffective for failing to object to the photographs

under Evid.R. 402 or Evid.R. 403(A). It appears trial counsel did not object to the

photographs because counsel had a strategy to discredit the state’s theory of the case

by showing that the penises in the drawings did not look like Allen’s penis because he

was uncircumcised. Regardless whether this was a sound strategy, as we explained in

Section III, the trial court could conclude that the photographs were relevant and that their

probative value was not substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury. Therefore, an objection under Evid.R. 402

or 403(A) would have been futile. “[T]he failure to make a futile objection does not

constitute deficient performance for an ineffective assistance of counsel claim.” State v.

Cordor,

,

, ¶ 29 (4th Dist.).

{¶37} Trial counsel was also not ineffective for failing to object to the photographs

on the ground that they were cumulative. Evid.R. 403(B) states: “Although relevant, Ross App. No. 21CA3736 18

evidence may be excluded if its probative value is substantially outweighed by

considerations of * * * needless presentation of cumulative evidence.”

“ ‘Cumulative evidence’ is additional evidence of the same kind to the same

point.” Kroger v. Ryan,

,

(1911), syllabus. Even if trial

counsel was deficient for not objecting to the number of photographs under Evid.R.

403(B), Allen has not demonstrated a reasonable probability that the cumulative nature

of the photographs affected the outcome of the trial. The Supreme Court of Ohio has

stated that “ ‘[a]bsent gruesomeness or shock value, it is difficult to imagine how the sheer

number of photographs admitted can result in prejudice requiring reversal.’ ” State v.

Smith,

,

(1997), quoting State v. DePew,

,

(1988). In this case, the rudimentary drawings are not

gruesome or shocking so as to warrant a finding that the admission of 17 photographs,

instead of some lesser number, prejudiced Allen.

{¶38} Allen has not shown that trial counsel’s failure to object to the photographs

on any ground he advances on appeal was both deficient performance and prejudicial.

Because Allen failed in his burden to establish trial counsel’s ineffectiveness, we overrule

the third assignment of error.

VI. CONCLUSION

{¶39} Having overruled the assignments of error, we affirm the judgment of the

trial court.

JUDGMENT AFFIRMED. Ross App. No. 21CA3736 19

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the ROSS COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.