State v. Carter

2017 Ohio 5573

Opinion

[Cite as State v. Carter, 2017-Ohio-5573.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104653

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ALTON O. CARTER

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598676-A

BEFORE: Jones, J., E.A. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: June 29, 2017 ATTORNEY FOR APPELLANT

Jonathan N. Garver The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

BY: Steven McIntosh Brett Hammond Assistant County Prosecutors The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:

{¶1} Defendant-appellant Alton Carter (“Carter”) appeals his assault and

kidnapping convictions, which were rendered after a jury trial. We affirm.

I. Procedural and Factual History

{¶2} On August 28, 2015, a Cuyahoga County Grand Jury charged Carter in a

five-count indictment as follows: Count 1, rape; Count 2, attempted rape; Count 3,

felonious assault; Count 4, kidnapping; and Count 5, misdemeanor assault. With the

exception of Count 5, misdemeanor assault, the counts contained notices of prior

conviction (Counts 1, 2, and 4); repeat violent offender specifications (“RVO,” Counts 1,

2, and 4); sexually violent predator specifications (Counts 1, 2, 3, and 4); and sexual

motivation specifications (Counts 3 and 4). At his arraignment, Carter was declared

indigent and a court-appointed attorney was assigned to his case.

{¶3} Defense counsel and the state engaged in pretrial proceedings, which

included the exchange of discovery. During the course of the pretrial proceedings,

Carter, pro se, filed a motion to suppress evidence and a motion for speedy trial; the trial

court never ruled on the motions and, therefore, they are deemed denied.1 The case

proceeded to a jury trial2 in May 2016, during which the following facts were adduced.

{¶4} On the evening in question, the victim, G.R., was at Tucker’s Casino, a

karaoke bar, celebrating her birthday; Carter was also at the bar, with two people, one of

whom was a former high school classmate of G.R.’s. G.R. and Carter were acquainted

1 State ex rel. Nash v. Fuerst, 8th Dist. Cuyahoga No. 99027, 2013-Ohio-592, ¶ 8. 2 The sexually violent predator specifications were tried to the bench. with each other — they had previously met on a dating website and had had a brief,

intimate relationship. At the time of the incident giving rise to this case, they were no

longer dating, however, because the victim had ended the relationship. G.R. testified

that when she saw Carter in the bar, she approached him to say hello to him and her

former classmate and talked with them for a few minutes while she waited for a friend to

arrive. After her friend arrived, G.R. hung out with her and mingled with other people she

knew in the bar.

{¶5} The victim testified that she and her friend left the bar after closing time,

around 2:30 a.m., and Carter was leaving at the same time. She invited Carter, along

with some others, to do shots from a bottle of tequila she had in the trunk of her car;

Carter accepted the invitation. During the course of the parking lot drinking, however,

Carter appeared ready to leave — the friends he had been with had already left.

{¶6} While the group was in the parking lot, Carter closed G.R.’s trunk, not

realizing that her car keys were in there. Carter helped her get the trunk open, then

asked G.R. for a ride home and she told him no. She knew that he lived with his

grandmother, whose house was just around the corner from the bar, and thought that

Carter should walk home.

{¶7} Carter became angry, and an argument ensued, with some in the group

blaming him for the trunk incident. Carter, irate and profane, then began arguing with

the victim and her friend. Carter asked G.R. for a ride a second time, she told him no

again, which further upset him. G.R. testified that, fearful of Carter, she maced him in

the face. According to G.R., as she was in her car attempting to leave, Carter reached in

and struck her in the face. {¶8} G.R. drove to her apartment building in Cleveland Heights; her friend

followed in her car to make sure G.R. made it home safely. When G.R. arrived in front

of her apartment building, she and her friend stopped to talk about what had transpired.

After their conversation, when G.R. attempted to restart her car, the car would not start.

Her friend called her father, who arrived and “jumped” G.R.’s car. Once the car was

running, the friend and her father left, and G.R. drove her car into the garage of her

apartment building.

{¶9} The victim testified that after she parked her car, and as she was approaching

her apartment building, Carter appeared “out of nowhere” and approached her, angry

about what had occurred earlier at Tucker’s Casino. She told him to leave and that they

would talk about it later when he was sober, but he continued to argue with her. G.R.

testified that she was right by a neighbor’s window, and she knew that neighbor tended to

be up late, so she screamed for him to call 911, and attempted to run back into the parking

garage, thinking she could escape in her car. G.R. testified that Carter grabbed her

wrist, but she was able to free herself from him and continue to the garage. The victim

testified that Carter followed her into the garage, where he choked her, digitally

penetrated her vagina, and attempted to anally rape her. She maced him again, and he

ran out of the garage, where he encountered the police who had arrived on the scene by

that time.

{¶10} The neighbor testified that he saw G.R. and an unknown man at the back

door of the apartment building and thought he saw a struggle. He then observed both of

them walking towards the garage and thereafter lost sight of them. He testified that it

did not appear that the man was pulling the victim into the garage. {¶11} One of the responding officers, Jason Moze (“Officer Moze”), testified that

he encountered Carter, who was “calm,” but “disheveled,” with mace on his face and dirt

and cobwebs on his clothing and shoes. The officer testified that he found similar

cobwebs in the parking garage. The victim had her pants and underpants pulled down to

her ankles, and was “irate” and “screaming” that she had been raped; Carter denied raping

her, however.

{¶12} Officer Moze placed Carter in the back of his patrol car. The officer

testified that Carter was not under arrest at that time because he still needed to determine

the “full story,” and the scene was chaotic because of the apparent animosity between

G.R. and Carter. Initially, G.R. told the officer that she and Carter did not know each

other; later, however, she admitted that they did.

{¶13} G.R. went to the hospital, where a sexual assault examination was

performed on her. The sexual assault nurse examiner (“SANE”) who conducted the

examination testified at trial. The SANE testified that the victim told her that Carter

grabbed her and dragged her by her arms, while choking, and shaking her, and hitting her

head against a wall. She also told the nurse that Carter had attempted to digitally

penetrate her vagina, but she was not sure if he had been successful. The SANE

testified that she did not find any evidence of injury to G.R.’s neck or vagina. She did

observe “minor” injuries, that could have been caused by G.R.’s account of the events,

but for which the nurse was unable to render an opinion as to their cause.

{¶14} The state also presented the testimony of two forensic scientists from the

Ohio Bureau of Criminal Investigation (“BCI”). One of the scientists examined a

specimen collected by the nurse as part of the rape kit. The scientist tested the victim’s underwear and determined that it was positive for semen. The other scientist conducted

two tests on the swabs from the victim’s underwear, and concluded, based on the results

of one of the tests, that Carter was excluded as the source of the DNA, and was unable to

reach a conclusion based on the results of the other test. Further, testing of vaginal and

bi-lateral buttock samples taken from the victim did not reveal the presence of any male

DNA.

{¶15} The other scientist testified about her conclusions regarding Carter’s “touch

DNA” on the victim. Specifically, she tested neck swabs taken from G.R. and found

that Carter’s touch DNA was present. She testified that the amount of Carter’s DNA

found on G.R.’s neck seemed a “little unlikely that it would just be from casual rubbing

up against, but, again, I can’t say for certain one way or the other.”

{¶16} Detective Thomas DeCaro from the Cleveland Heights Police Department

was assigned to investigate the case. The detective interviewed Carter, who at the time

was under arrest and in police custody at the police station. The interview video was

played for the jury at trial.

{¶17} During the interview, Carter told the detective that the victim had maced

him while they were at Tucker’s Casino, so he walked to her apartment to talk to her

about why she had done that. Carter told the detective that he arrived at her building as

she was at the door to the building; he denied waiting there for her to arrive. Carter said

that the victim mentioned wanting to get something to eat and headed back towards her

car. Carter said, “okay, then you can take me home.”

{¶18} According to Carter, he was walking around to the passenger side of the

victim’s car when the police approached and yelled “stop.” The victim then shouted “he tried to rape me.” Carter stated that when he turned around to look at the victim, she had

her pants down. He stated that he had no idea how her pants got down. Carter told the

detective that his clothing was dirty because he had fallen at Tucker’s Casino after G.R.

had maced him.

{¶19} At the conclusion of the state’s case, the defense moved for a Crim.R. 29

judgment of acquittal as to Count 2, attempted rape and Count 3, felonious assault. The

motion was denied in toto as to the attempted rape, and it was granted in part as to the

felonious assault. Specifically, the charge of “serious physical harm” was removed from

the count, thereby making it a charge of misdemeanor assault, to which the specifications

did not apply and, therefore, were dismissed. The defense did not present any witnesses.

{¶20} After its deliberations, the jury found Carter guilty of Count 3, misdemeanor

assault and Count 4, kidnapping. The matter was referred to the adult probation

department for a presentence investigation. Prior to sentencing, Carter filed a motion to

set aside the verdict and for a Crim.R. 29 judgment of acquittal; the trial court denied the

motion. After the presentence investigation was completed, Carter was sentenced to six

years on the kidnapping conviction, to be served concurrently to a six-month sentence on

the assault conviction. He was labeled a Tier II sex offender and advised of postrelease

control.

II. Assignments of Error

{¶21} Carter now presents the following nine assignments of error for our review:

I. The trial court violated appellant’s rights under the Fifth, Sixth, and Fourteenth Amendments of the Constitution of the United States by allowing the state to present evidence of statements elicited from appellant by police officers after he was accused of rape and while he was being detained by police officers without first advising him of his constitutional rights and obtaining a valid waiver from him.

II. The trial court committed plain error by failing to give a jury instruction on the lesser included offense of kidnapping.

III. The trial court committed plain error by permitting the state’s forensic scientist to speculate on whether touch DNA found on the alleged victim’s neck supported the allegation of assault (choking/strangulation).

IV. The trial court committed prejudicial error and interfered with appellant’s right to confront his accusers by prohibiting defense counsel from questioning the SANE nurse about matters set forth in the victim’s medical records.

V. The trial court committed plain error by allowing the investigating officer to editorialize and express personal opinions while testifying about statements made by appellant.

VI. The trial court committed prejudicial error by allowing the investigating officer to provide hearsay testimony concerning statements allegedly made by a barmaid at Tucker’s Casino.

VII. Appellant was denied his right to effective assistance of counsel.

VIII. The evidence was insufficient to support appellant’s conviction for kidnapping.

IX. Appellant’s conviction for kidnapping is against the manifest weight of the evidence.

III. Law and Analysis

Carter’s Statements while Detained

{¶22} In his first assignment of error, Carter contends that the trial court violated

his constitutional rights by allowing the state to introduce evidence of statements he made

to the police at the scene of the incident. Carter, however, did not raise this issue in the trial court.3 It is well established that if a motion is not filed raising a particular

suppression issue, that issue is waived. See, e.g., Xenia v. Wallace, 37 Ohio St.3d 216,

524 N.E.2d 889 (1988), paragraph one of the syllabus; State v. Mixner, 12th Dist. Warren

No. CA2001-07-074, 2002-Ohio-180, ¶ 3. Regardless of the fact that Carter waived

the issue by failing to raise it in the trial court, there is no merit to his claim. Officer

Moze, who questioned Carter at the scene, testified that at the time he questioned him he

was not under arrest; rather, his questioning was for investigative purposes so that he

could determine what had transpired. See State v. Gaston, 110 Ohio App.3d 835, 842,

675 N.E.2d 526 (11th Dist.1996). The first assignment of error is overruled. Failure to

Instruct Jury on Abduction

{¶23} For his second assignment of error, Carter contends that the trial court erred

by not instructing the jury on abduction, a lesser included offense of kidnapping.4 Carter

did not seek the instruction at the trial court level and, therefore, has waived all errors

except plain error on this issue. State v. Majid, 8th Dist. Cuyahoga No. 96855,

3 As mentioned, Carter did file a motion to suppress, pro se, but the motion did not raise the issue he attempts to now set forth. Further, at the time Carter filed his suppression motion, he was represented by counsel. Although a defendant has the right to counsel or the right to act pro se, a defendant does not have a right to “hybrid representation.” State v. Mongo, 8th Dist. Cuyahoga No. 100926, 2015-Ohio-1139, ¶ 13, citing State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, paragraph one of the syllabus, and State v. Thompson, 33 Ohio St.3d 1, 6-7, 514 N.E.2d 407 (1987). The right to counsel and the right to act pro se “‘are independent of each other and may not be asserted simultaneously.’” Mongo at id., quoting Martin at id. Thus, when a criminal defendant is represented by counsel and there is no indication that defense counsel joins in the defendant’s pro se motion or otherwise indicates a need for the relief sought by the defendant pro se, the trial court cannot properly consider the defendant’s pro se motion. State v. Wyley, 8th Dist. Cuyahoga No. 102899, 2016-Ohio-1118, ¶ 9. 4 See State v. Simmons, 8th Dist. Cuyahoga No. 96208, 2011-Ohio-6074, ¶ 42 (“Abduction is a lesser included offense of kidnapping.”). 2012-Ohio-1192, ¶ 86; Crim.R. 52(B). “Plain error as to jury instructions is proven

when the outcome of the trial would have been different but for the alleged error.”

Majid at id., citing State v. Campbell, 69 Ohio St.3d 38, 630 N.E.2d 339 (1994). Carter

contends that because he was acquitted of the rape and attempted rape charges, there was

a reasonable probability that the outcome of the trial would have been different if the jury

had been instructed on abduction, which, unlike kidnapping, does not contain a sexual

motivation element.

{¶24} Carter’s argument presupposes that the acquittal on the sex charges, but

conviction on the kidnapping charge, was inconsistent. But the kidnapping statute

“punishes certain removal or restraint done with a certain purpose and the eventual

success or failure of the goal is irrelevant.” State v. Taylor, 8th Dist. Cuyahoga No.

100315, 2014-Ohio-3134, ¶ 30; see also State v. Matthieu, 3d Dist. Mercer Nos.

10-02- 04 and 10-02-05, 2003-Ohio-3430, ¶ 17; State v. Moore, 8th Dist. Cuyahoga No.

60334, 1992 Ohio App. LEXIS 2534, 8 (May 14, 1992). Thus, the jury’s finding of not

guilty on the rape and attempted rape charges was “not in any sense a finding that there

was no intent or purpose to commit” kidnapping. Taylor at id.; see also Matthieu at id.

and Moore at id.

{¶25} As mentioned, we review the lack of instruction on abduction for plain

error. Notice of plain error “is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Phillips,

74 Ohio St.3d 72, 83, 656 N.E.2d 643 (1995). Upon review, we do not find plain error.

The jury was instructed that in order to find Carter guilty of kidnapping, they had to find

that the sexual motivation element of the crime had been proven beyond a reasonable doubt. By finding him guilty of kidnapping, the jury thereby found that there was a

sexual motivation element to his conduct; it is, therefore, unlikely that an abduction

without a sexual motivation instruction would have changed the outcome of the trial.

Apparently the jury believed that Carter held G.R. in the garage against her will with the

intent to commit a sexual crime, but did not believe that the sexual crime was effectuated,

which was consistent with the DNA evidence. Therefore, Carter’s second assignment of

error is overruled.

Touch DNA Testimony

{¶26} In his third assigned error, Carter contends that it was error to allow the

forensic scientist’s “speculative” testimony that the amount of Carter’s DNA on the

victim’s neck was “more consistent with a prolonged exposure or a prolonged touching

than just a casual brush up against.” We again review for plain error, because Carter did

not object to the testimony at trial.

{¶27} Evid.R. 702 governs the admission of expert testimony and provides in

relevant part as follows:

A witness may testify as an expert if all of the following apply:

(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply: (1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably implements the theory;

(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

{¶28} The Ohio Supreme Court has held that trial courts should “favor the

admissibility of expert testimony whenever it is relevant and the criteria of Evid.R. 702

are met.” State v. Nemeth, 82 Ohio St.3d 202, 207, 694 N.E.2d 1332 (1998). Upon

review, the scientist’s testimony was relevant to the state’s claim that Carter choked the

victim.

{¶29} Further, it met the requirements of Evid.R.702. Carter’s contention that the

testimony was impermissible because the scientist could not testify “for certain” that the

amount of DNA equated to a choking is without merit. Expert witnesses in criminal

cases can testify in terms of possibility rather than in terms of a reasonable scientific

certainty or probability. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23

N.E.3d 1096, ¶ 129. The treatment of such testimony involves an issue of sufficiency,

not admissibility; they are matters of weight for the jury. Id.

{¶30} Expert DNA evidence testimony is similarly treated. State v. Lang, 129

Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 78. Thus, it has likewise been held

that questions regarding the reliability of DNA evidence go to the weight of the evidence

rather than its admissibility, and that the “trier of fact, the judge or jury, can determine

whether DNA evidence is reliable based on the expert testimony and other evidence

presented.” State v. Pierce, 64 Ohio St.3d 490, 501, 597 N.E.2d 107 (1992). {¶31} In light of the above, there was no error, plain or otherwise, in allowing the

forensic scientist’s touch DNA evidence testimony, and the third assignment of error is

overruled.

Confrontation of the SANE

{¶32} Carter contends in his fourth assignment of error that the trial court

impermissibly interfered with his constitutional right to confront his accusers by limiting

his questioning of the SANE. The limitation occurred when defense counsel sought to

have the nurse read a particular portion of the victim’s compiled medical records. The

state objected on the ground that counsel was asking the nurse to read from a document

that she did not create. The trial court called a sidebar, so that it could look at the

portion of the document counsel sought to have the SANE read. After conferencing

about it off the record, the court sustained the state’s objection. Defense counsel later

attempted to question the nurse on apparently the same portion of the victim’s record,

prompting the trial court to state “No. No. No, for all the reasons that I gave you at

sidebar. We still have unauthenticated material.”

{¶33} To establish error regarding the issue of excluded evidence, an appellant

must show that the substance of the excluded evidence was made known to the court by

proffer or was apparent from the context within which questions were asked. Evid.R.

103(A); Campbell v. Johnson, 87 Ohio App.3d 543, 622 N.E.2d 717 (2d Dist.1993).

Although the issue was discussed at sidebar with the court, the sidebar conference was off

the record, there was no proffer made about what the defense sought to have the SANE

testify about, and it is not clear from the context what the testimony might have been.

Lacking a proffer in the record, we would be relegated to conjecture, which we decline to do. Thus, Carter has waived any purported error in this regard. State v. Brooks, 44

Ohio St.3d 185, 195, 542 N.E.2d 636 (1989).

{¶34} The fourth assignment of error is overruled.

Investigating Detective’s Personal Opinion Testimony

{¶35} Carter’s fifth assignment of error relates to testimony of the investigating

detective, Thomas DeCaro, which we review for an abuse of discretion.5 Specifically,

during Detective DeCaro’s testimony, he testified as to portions of the video recording of

his interview with Carter. The detective testified that in the beginning of the interview

Carter was “irate and upset,” but that he eventually did “calm down a little bit.” The

assistant prosecuting attorney asked the detective if Carter then cooperated with the

interview, to which the detective responded,

[t]o a point. * * * when we’re asking him questions, he was kind of like, it’s best to say, talking around the answers, * * * we couldn’t really get a clear answer from him. * * * When you’re taught interviewing, one of the techniques you kind of learn is people mentally try and distance themselves from an incident * * *.

{¶36} Defense counsel objected to the answer, and the court overruled the

objection.

{¶37} Further, in testifying about what Carter told him transpired on the night and

morning of the incident, Detective DeCaro related that Carter told him that he wanted to

talk to the victim about her macing him at the bar because that embarrassed him. The

detective testified that Carter’s account did not make sense to him, and he provided the

5 The admission or exclusion of evidence lies within the trial court’s sound discretion. State v. Bey, 85 Ohio St.3d 487, 489-490, 709 N.E.2d 484 (1999). Thus, we will not disturb a trial court’s evidentiary ruling absent an abuse of discretion. Krischbaum v. Dillon, 58 Ohio St.3d 58, 66, 567 N.E.2d 1291 (1991). following testimony: “Let me get this straight. You get in an argument or some kind

of altercation, you get maced in the face, and your intent is to walk a mile uphill to that

person’s residence and ask them why you were maced in the face? That doesn’t seem

like a good idea, especially at four in the morning.”

{¶38} The defense objected, and the court responded that it was trying to

determine whether what the detective was testifying to was what he actually told Carter or

if he was testifying about his personal opinion of what Carter told him. Detective

DeCaro responded, “[w]e were kind of reviewing [the events] with him, and he agreed

that that was the account.” The assistant prosecuting attorney continued questioning

Detective DeCaro about what Carter told him about the incident and the detective

testified that he found it “kind of strange.” The defense objected again, and this time the

court admonished Detective DeCaro as follows: “No. No. I don’t need reactions

from the police [as] to what [Carter] said. You’re here to tell us what [Carter] said.

Stop the reactions.”

{¶39} It is true that a police officer’s opinion that an accused is being untruthful is

inadmissible. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 122.

For example, the following has been held improper: a detective’s testimony that the

defendant was “being very deceptive.” Id. at ¶ 123; a detective’s testimony that he “was

not getting the complete truth” from the defendant and that “there was some deception

there.” State v. Carpenter, 12th Dist. Clermont No. CA2012-06-041, 2013-Ohio-1385, ¶

23; and a detective’s personal opinion as to the truth of a defendant’s statements. State

v. Vanek, 11th Dist. Lake No. 2002-L-130, 2003-Ohio-6957, ¶ 37. The concern is the

likelihood of a jury being influenced by a police officer’s opinion regarding a witness’s credibility. State v. Withrow, 11th Dist. Ashtabula No. 2011-A-0067, 2012-Ohio-4887,

¶ 47.

{¶40} But even though opinion testimony regarding the truthfulness of a witness is

inadmissible, a witness may give “testimony in the form of opinions or inferences * * *

which are (1) rationally based on the perception of the witness and (2) helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue.” Evid.R.

701. “Testimony in the form of an opinion or inference otherwise admissible is not

objectionable solely because it embraces an ultimate issue to be decided by the trier of

fact.” Evid.R. 704.

{¶41} Thus, construing Evidence Rules 701 and 704, the Ohio Supreme Court has

observed that “[t]estimony expressing an opinion on whose version is more likely to be

true would certainly aid the jury in reaching its conclusion.” State v. Crotts, 104 Ohio

St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 27. This court has held that an officer is

not vouching for a witness’ credibility by explaining the investigative procedure he or she

followed and, therefore, the testimony is “admitted for proper purposes.” State v. Vales,

8th Dist. Cuyahoga No. 81788, 2003-Ohio- 6631, ¶ 33, citing In re: Shubutidze, 8th Dist.

Cuyahoga No. 77879, 2001 Ohio App. LEXIS 996 (Mar. 8, 2001); see also State v.

Axson, 8th Dist. Cuyahoga No. 81231, 2003-Ohio-2182, ¶ 67.

{¶42} In regard to the first instance of Detective DeCaro testifying about Carter’s

level of cooperation, that was properly admitted as part of the detective’s testimony

regarding the investigative procedure he used. As mentioned, portions of the interview

the police conducted of Carter were played for the jury. The detective testified that

initially Carter was “irate and upset.” The assistant prosecuting attorney then asked if Carter subsequently cooperated — a question not directed at determining Carter’s

credibility.

{¶43} In regard to the second instance of the detective testifying that he found

Carter’s story “strange” and that walking to G.R.’s apartment at 4:00 a.m. was “not a

good idea,” that was arguably improper opinion testimony on Carter’s credibility. But as

soon as the court determined that was, in fact, improper opinion testimony, it admonished

Detective DeCaro that his testimony was improper and, in its instructions to the jury, the

court informed the jury that they were to disregard any testimony that the court did not

allow. A presumption exists that a jury follows the instructions given to it by the trial

court. State v. Glover, 10th Dist. Franklin No. 07AP-832, 2008-Ohio-4255, ¶ 80.

{¶44} On this record, there was no abuse of discretion and Carter’s fifth

assignment of error is therefore overruled.

Investigating Detective’s Testimony about Barmaid’s Statements

{¶45} Carter’s sixth assignment of error challenges more of Detective DeCaro’s

testimony, this time as violating his right to confrontation by providing hearsay testimony

about what a barmaid at Tucker’s Casino told him. The barmaid did not testify at trial.

{¶46} Specifically, the assistant prosecuting attorney asked the detective who he

spoke to during the course of his investigation. The detective replied that, among others,

he talked to the “barmaid who was present at the time. She was actually a reluctant

witness, but I was able to get ahold of her * * * and she gave me a corroborating

account.” The defense objected, and the court overruled the objection. The detective

continued, “[s]he was * * * like I said, she wasn’t really a cooperative witness.” The

court then interrupted, saying, “[o]kay. Hang on. Stop. Let’s have a new question.” {¶47} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004), the United States Supreme Court held that pursuant to the Confrontation Clause

of the Sixth Amendment to the United States Constitution, “[t]estimonial statements of

witnesses absent from trial [can be] admitted only where the declarant is unavailable, and

only where the defendant has had a prior opportunity to cross-examine.” Id. at 59.

However, the Confrontation Clause “does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted.” Id. at fn. 9, citing

Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985). For example,

“where statements are offered to explain an officer’s conduct while investigating a crime,

such statements are not hearsay.” State v. Blevins, 36 Ohio App.3d 147, 149, 521

N.E.2d 1105 (10th Dist.1987).

{¶48} But the admission of out-of-court statements to explain police conduct in an

investigation has the potential for abuse. Id. For example, the Tenth Appellate District

warned trial courts against allowing prosecuting attorneys to use police officer testimony

to introduce unfairly prejudicial out-of-court statements, including testimony that

connects the defendant to the crime at issue:

It is well-established that, where statements are offered into evidence to

explain an officer’s conduct during the course of investigating a crime, such

statements are generally not hearsay. There are limits, however, to this

general rule because of the great potential for abuse and potential confusion

to the trier of fact. For example, a prosecutor may attempt to use a police

officer’s testimony regarding his investigative activities as a pretext to

introduce highly prejudicial out-of-court statements, while claiming the statements are being offered merely to explain the police officer’s conduct,

rather than for their truth. Furthermore, when the statements connect the

accused with the crime charged, they should generally be excluded.

(Citations omitted.) Id. at ¶ 11.6

{¶49} Here, although the assistant prosecuting attorney did not ask Detective

DeCaro to testify as to the barmaid’s statements, the detective did so in his response.

And although the trial court initially overruled the defense’s objection, it quickly reversed

itself, realizing that the detective was giving improper hearsay testimony. But the

limited amount of hearsay testimony that Detective DeCaro did give about the barmaid —

that she gave a “corroborating account” — was not prejudicial to Carter. Specifically,

the detective never testified whose story the barmaid corroborated — the victim’s or

Carter’s — and it is not clear from the context of his testimony to whom he was

referring. Thus, on this record, his one-time reference to the barmaid’s statement was

harmless error. The sixth assignment of error is overruled.

Ineffective Assistance of Counsel Claim

{¶50} In his seventh assignment of error, Carter contends that his trial counsel was

ineffective based on his failure to: (1) request an abduction jury instruction; (2) file a

motion to suppress; (3) object to inadmissible and improper evidence; and (4) failure to

use impeachment evidence. Carter further contends that the cumulative effect of the

6 See also State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 26 (6th Dist.) (“the well-worn phrase ‘not offered for the truth of the matter asserted’ is not a talismanic incantation that opens the door to everything said outside the courtroom. For an extrajudicial statement of this type, a secondary assessment under Evid.R. 403(A) is required. The trial court must consider whether the risk that the jury will prejudicially misuse the content for its truth exceeds the probative value of the statement for the nonhearsay purpose.”) (Citations omitted.) errors deprived him of a fair trial.

{¶51} Reversal of a conviction for ineffective assistance of counsel requires a

defendant to show that (1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel’s performance must fall below an

objective standard of reasonableness to be deficient in terms of ineffective assistance of

counsel. State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Moreover,

the defendant must show that there exists a reasonable probability that, were it not for

counsel’s errors, the results of the proceeding would have been different. State v. White,

82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998).

{¶52} In evaluating a claim of ineffective assistance of counsel, a court must give

great deference to counsel’s performance. Strickland at 689. “A reviewing court will

strongly presume that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” State v. Pawlak, 8th

Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.

1. Failure to Request Abduction Instruction

{¶53} It is well-established that the decision of whether to request a

lesser-included offense jury instruction is deemed trial strategy. State v. Griffie, 74 Ohio

St.3d 332, 333, 658 N.E.2d 764 (1996) (“Failure to request instructions on lesser-included

offenses is a matter of trial strategy and does not establish ineffective assistance of

counsel”). Specifically, it is a recognized trial strategy to forego lesser-included

offense instructions as an election to seek acquittal rather than to invite conviction on a

lesser offense. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980) (even if trial counsel’s strategy is questionable, tactical decisions do not amount to ineffective

assistance of counsel); see also State v. Jones, 8th Dist. Cuyahoga No. 80737,

2003-Ohio-4397, ¶ 8.

{¶54} In light of the above, trial counsel was not ineffective for failing to request

an abduction instruction.

2. Failure to File Suppression Motion

{¶55} As mentioned in addressing Carter’s first assignment of error, Carter made

statements to the police at the scene. Specifically, Officer Moze testified that when he

first encountered Carter at the scene, Carter told him that he “had nothing to do with this.”

While Carter was saying that, the victim came out and said that Carter had raped her;

Carter told him that he did not do that and he did not know why her pants were down.

The officer then questioned Carter to find what was going on, and Carter told him about

being maced and then walking to the victim’s residence to talk to her about why she had

done that. The officer testified that at that time, Carter was not under arrest, he was just

trying to “put the puzzle together.”

{¶56} Carter now contends that his counsel was ineffective for not filing a motion

to suppress his statements on the ground that he was not Mirandized prior to being

questioned. We disagree. Miranda7 warnings must be provided when a defendant is

subject to a custodial interrogation. A custodial interrogation is “questioning initiated by

law enforcement officers after a person has been taken into custody or otherwise deprived

of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. at 444,

7 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Here, the statements Carter now contends should

have been suppressed were in response to the officer’s questioning of him when he

arrived on the scene and was trying to determine what had happened. “General

on-the-scene questioning as to facts surrounding a crime or other general questioning of

citizens in the fact finding process is not affected by our holding.” Id. at 477. Thus,

the Miranda warnings were not required for Officer Moze’s questioning of Carter.

3. Failure to Object to Testimony

{¶57} Carter also complains that his counsel was ineffective for not objecting to

the testimony (1) of the nature of the contact that produced the touch DNA on the

victim’s neck; (2) the detective’s opinion of Carter’s account of the events; and (3) the

police officer’s testimony regarding the barmaid’s statement.

{¶58} In regard to the touch DNA testimony, as already discussed, the testimony

was relevant to the state’s claim that Carter choked the victim and it met the requirements

of Evid.R. 702; the lack of objection, therefore, was not ineffective assistance of counsel.

{¶59} In regard to the detective’s opinion testimony, the first instance, in which he

testified that Carter’s reason for why he was at the victim’s residence did not “seem like a

good idea, especially at four in the morning,” was objected to by counsel. The second

instance, when the detective testified that he found Carter’s story “strange” was improper

opinion testimony on Carter’s credibility, as we discussed above. But, despite counsel’s

lack of objection, as soon as the court determined that it was, in fact, improper opinion

testimony, it admonished Detective DeCaro that his testimony was improper. As such,

Carter’s ineffective assistance of counsel claim on this ground fails, because the court on

its own found the testimony improper and halted it. {¶60} And, regarding the barmaid’s testimony, as we previously mentioned,

defense counsel did initially object to the testimony, and the trial court overruled the

objection. But, again, once the court realized that the testimony was improper, it quickly

reversed itself.

4. Failure to Use Impeachment Evidence

{¶61} Carter further contends that his trial attorney was ineffective because he

failed to use impeachment evidence. Specifically, Officer Moze’s encounter with Carter

at the scene was captured on the officer’s body camera. During opening statement,

Carter’s counsel told the jury that they would have the opportunity to see the video from

the camera, which captured the police’s interactions with Carter, the victim, and the

neighbor who called the police. The portion of the video relative to the neighbor was

not played, and Carter contends that it contained impeachment evidence on it, and that

counsel was ineffective for not using it. At trial, the neighbor testified that he had not

made any reports to the police concerning G.R. prior to this incident. The alleged

impeachment evidence was the neighbor allegedly telling the police that he had to call the

police on the victim before.

{¶62} Carter now contends on appeal that “[a]fter the State had rested, [his] trial

counsel indicated a desire to play Officer Moze’s body cam video to impeach [the

neighbor].” Carter contends that counsel was ineffective because he did not impeach the

neighbor during cross-examination of the neighbor. The record indicates that this

situation occurred because of a misunderstanding, and after our review, we find that it did

not constitute the ineffective assistance of counsel.

{¶63} Specifically, defense counsel indicated that he believed he and the assistant prosecuting attorney agreed that the video from the officer’s body camera, including the

portion showing the police’s interaction with the neighbor would be played by the state

during Officer Moze’s testimony, who testified after the neighbor testified. Thus,

defense counsel believed the impeachment evidence would “be brought in intrinsically”

through the officer’s testimony. The state did not play that portion of the video,

however, when it questioned Officer Moze, and defense counsel stated that, although he

did not believe he was intentionally misled, he was “told one thing and something else

happened.”

{¶64} The assistant prosecuting attorney stated that he “thought [he] made it clear

that [the state] had an issue playing [the neighbor’s] part * * * because [the neighbor]

would testify * * * and playing that video through Officer Moze would clearly be hearsay

of a witness.” The assistant prosecuting attorney stated that he had not been trying to

mislead defense counsel or the court, and that he believed defense counsel was not trying

to mislead the court either, and the whole incident must have been a

“miscommunication.”

{¶65} On this record, counsel was not ineffective, and furthermore, the outcome of

the trial would not have been different if the neighbor had been impeached on his

testimony that he had not previously called the police regarding the victim.

5. Cumulative Effect

{¶66} In State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), the Ohio

Supreme Court recognized the doctrine of cumulative error. Id. at paragraph two of the

syllabus. Under this doctrine, a conviction will be reversed when the cumulative effect

of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial court error does not individually constitute cause for reversal. Id. at

196-197; see also State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d

1023, ¶ 258.

{¶67} The court has recognized that multiple errors, when aggregated, may violate

a defendant’s right to a fair trial, even when those errors are determined to be harmless

when separately considered. State v. Madrigal, 87 Ohio St.3d 378, 397, 721 N.E.2d 52

(2000). To find cumulative error, we first must find multiple errors committed at trial,

and secondly, we must conclude that a reasonable probability exists that the outcome of

the trial would have been different but for the combination of the harmless errors. Id. at

398.

{¶68} Upon review, as discussed above, there were not multiple errors committed

at trial. Thus, the cumulative error doctrine is inapplicable. The seventh assignment of

Sufficiency of Evidence: Kidnapping and Tier II Sex Offender

{¶69} In his eighth assignment of error, Carter contends that the evidence was

insufficient to support the kidnapping conviction and, thus, by extension, the Tier II sex

offender label. We disagree.

{¶70} Sufficiency of the evidence is a legal standard that tests whether the

evidence is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997). In determining whether the evidence is legally

sufficient to support a conviction, “‘[t]he relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.’” State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190, ¶ 34, quoting State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A

verdict will not be disturbed unless, after viewing the evidence in a light most favorable

to the prosecution, it is apparent that reasonable minds could not reach the conclusion

reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749

(2001).

{¶71} In a sufficiency of the evidence inquiry, appellate courts do not assess

whether the prosecution’s evidence is to be believed but whether, if believed, the

evidence supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227,

2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80 (evaluation of witness credibility not proper on

review for sufficiency of evidence). Further, the testimony of “one witness, if believed

by the jury, is enough to support a conviction.” State v. Strong, 10th Dist. Franklin No.

09AP-874, 2011-Ohio-1024, ¶ 42.

{¶72} Carter contends that the evidence was insufficient to support the kidnapping

conviction because the “essential element of purpose to engage in sexual activity was

insufficient as a matter of law.” Carter cites that he was acquitted of the rape and

attempted rape in support of his claim. But as mentioned, the kidnapping statute

“punishes certain removal or restraint done with a certain purpose and the eventual

success or failure of the goal is irrelevant.” Taylor, 8th Dist. Cuyahoga No. 100315,

2014-Ohio-3134, ¶ 30. Here, the state presented evidence, namely the victim’s

testimony, that Carter held her against her will in the garage and made unwelcomed

sexual advances toward her. That testimony was sufficient to support the kidnapping

charge and, therefore also the Tier II sexual offender label. {¶73} The eighth assignment of error is overruled.

Weight of the Evidence: Kidnapping and Tier II Sex Offender

{¶74} In his final assignment of error, Carter contends that his kidnapping

conviction and Tier II sex offender label were against the manifest weight of the

evidence.

{¶75} When presented with a manifest-weight challenge, an appellate court may

not merely substitute its view for that of the trier of fact but 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 the conviction must be

reversed and a new trial ordered. Thompkins, 78 Ohio St.3d 380 at 387, 678 N.E.2d

541, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

An appellate court should reserve reversal of a conviction as being against the manifest

weight of the evidence for only the most “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Id., quoting Martin at id.

{¶76} Carter contends that the kidnaping conviction was against the manifest

weight of the evidence because G.R.’s allegation “just didn’t make sense and it was

riddled with inconsistencies and contradictions.” Although we may consider the

credibility of the witnesses in a manifest weight of the evidence challenge, “we are

guided by the presumption that the jury, or the trial court in a bench trial, ‘is best able to

view the witnesses and observe their demeanor, gestures and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.’” State v.

Cattledge, 10th Dist. Franklin No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Accordingly, we

afford great deference to the jury’s determination of witness credibility.

{¶77} After review, we decline to disturb the jury’s determination — this is not the

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

assignment of error is overruled.

{¶78} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

EILEEN A. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR