State v. Collins

2024 Ohio 794

• Court: Ohio Court of Appeals
• Decided: February 27, 2024
• Docket: 22CA16
• Status: Published

Opinion

[Cite as State v. Collins, 2024-Ohio-794.]

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

STATE OF OHIO, : : Case No. 22CA16 Plaintiff-Appellee, : : v. : DECISION AND JUDGMENT : ENTRY LOGAN C.M. COLLINS, : : RELEASED: 02/27/2024 Defendant-Appellant. :

APPEARANCES:

Stephen E. Palmer, Yavitch & Palmer Co., L.P.A., Columbus, Ohio, for appellant.

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

Wilkin, J.

{¶1} This is an appeal from a Ross County Court of Common Pleas

judgment of conviction in which the jury found appellant, Logan C.M. Collins,

guilty of unlawful sexual conduct with a minor, a third-degree felony. The trial

court imposed a prison term of five years. Collins challenges his conviction in

three assignments of error.

{¶2} First, Collins maintains that his conviction is against the manifest

weight of the evidence because the jury lost its way in determining the credibility

of the witnesses. According to Collins, there were several inconsistencies in the

testimony of the victim’s great uncle. Alternatively, his testimony along with the

testimony of his sister, wife and mother, were consistent and demonstrated

Collins was not at his house on the alleged date and time when the sexual Ross App. No. 22CA16 2

assault occurred. Moreover, Collins asserts the text messages that were

admitted as the state’s exhibits between him and the victim, B.P., do not

corroborate the state’s witnesses’ assertions. Collins claims many of the text

messages were fabricated by B.P. who was a troubled child with an infatuation

with Collins.

{¶3} We disagree. We defer to the jury since the jury was “in the best

position to gauge the witnesses’ demeanor, gestures, and voice inflections, and

to use these observations to weigh their credibility.” State v. Dillard, 4th Dist.

Meigs No. 13CA9, 2014-Ohio-4974, ¶ 28, citing State v. West, 4th Dist. Scioto

No. 12CA3507, 2014-Ohio-1941, ¶ 23. Further, a conviction is not against the

manifest weight of the evidence simply because the jury believed the state’s

witnesses. What is more, there is substantial credible evidence that Collins

committed the offense as charged. B.P. resides with her great uncle Landon

“Jake” (“Jake”) and his wife Kelly. Jake and Kelly live across the street from

Collins’ house. On February 1st, Collins sent a text message to Jake requesting

B.P. return the drill Jake had borrowed from Collins. When B.P. went to Collins’

house, Collins was home alone and invited B.P. in. At his house, Collins

prompted B.P., who was 14 years of age at the time, to perform fellatio on him.

{¶4} Second, Collins argues it was plain error for the state to intentionally

elicit testimony from Captain Stanley J. Addy that Collins did not want to make a

statement while the investigation was ongoing. Collins maintains the violation of

his Fifth Amendment right to remain silent was highly prejudicial and warrants

reversal of his conviction. We disagree. The two-line questioning was not Ross App. No. 22CA16 3

introduced as substantive evidence of guilt by the prosecution. There was no

reference to Collins’ election to remain silent during the state’s opening

statement, its cross-examination of Collins, or in closing arguments. Collins’

conviction is supported by overwhelming evidence, thus, the admission of

Captain Addy’s testimony did not affect the outcome of the case.

{¶5} Finally, Collins claims his trial counsel was ineffective for failing to

object to the state’s questioning of Captain Addy in which the Captain responded

that Collins did not want to make a statement. We overrule this argument as

Collins cannot demonstrate prejudice. We, therefore, overrule all three

assignments of error and affirm Collins’ conviction.

FACTS AND PROCEDURAL BACKGROUND

{¶6} Collins’ criminal proceedings began in April 2021, with the filing of the

indictment accusing him of committing the offense of unlawful sexual conduct

with a minor, a third-degree felony, in violation of R.C. 2907.04. The indictment

specified that the offense occurred on February 1, 2021, and additionally that the

victim, B.P., was between 13 and 16 years old. The indictment also stated that

Collins was older than B.P. by more than ten years. Collins pleaded not guilty to

the offense and the matter proceeded to a two-day jury trial.

{¶7} The state’s six witnesses and defendant’s four witnesses all testified

during the first day of trial. During the state’s case-in-chief, Jake was the first

witness. Jake is B.P.’s great uncle and in March 2019, after the death of B.P.’s

mother due to overdose, B.P. and her two younger siblings, E.P. and N.B., came

to live with him and his wife, Kelly. B.P.’s father had passed away years prior Ross App. No. 22CA16 4

also to an overdose.

{¶8} Jake and Kelly live across the street from Collins and they have been

neighbors for approximately four years. Jake was living at his residence before

Collins moved into the neighborhood. At the time of the offense, Collins and his

wife, Kentessa Collins, resided at their home with their two-year-old daughter,

C.C., and their one-month-old son, T.C. Collins and Jake’s family had a good

neighborly relation in which Kentessa was babysitting N.B. for a year, they

borrowed tools from each other, and just generally helped each other.

{¶9} So when Jake received a text message from Collins on February 1st

for the return of his drill, Jake did not hesitate to call on B.P. to walk the drill over

to Collins’s house. Collins specifically asked for B.P. to bring the drill. The text

message, which Collins admitted to sending, was dated February 1st at 6:40

p.m. and stated: “Hey can [B.P.] bring my impact drill and charger over?” At 6:48

p.m., Jake responded: “I will send her over I just charged the battery[.]” Right

away, Collins responded: “Ok thanks[.]”

{¶10} Within five minutes of Collins’ response, B.P. went to the garage

and retrieved the drill and walked it over to his house. According to both Jake

and his wife, who was the state’s second witness, B.P. was gone for over 25

minutes. When B.P. returned, she went straight to her bedroom. Jake and Kelly

both testified that they were not concerned when B.P. returned and went straight

to her room, although that was unusual.

{¶11} What occurred at Collins’ house was not revealed until the next day,

February 2, 2021. The state’s third witness, Breanna Reed, was involved with Ross App. No. 22CA16 5

Jake and Kelly’s son and had bonded with B.P. Breanna was 21 years old and

was like a big sister to B.P. The morning of February 2nd, B.P. reached out to

Breanna and via text messaging informed Breanna of what occurred at Collins’

house the evening before. Consequently, Breanna reached out to Kelly to

discuss the situation. After hanging up with Breanna, Kelly and Jake spoke

directly with B.P.

{¶12} During the conversation, Jake described B.P. as “nervous. Scared.

She didn’t want to open up, I think to me more than Kelly. She was embarrassed

I think.” Kelly similarly described B.P. as “[v]ery nervous. Very fidgety. No eye

contact. Just, I can’t even describe. She was very fidgety.” Kelly explained that

B.P.’s behavior was not normal and Kelly thought B.P. was lying when she

initially denied anything happened at Collins’ house. With Kelly’s insistence, B.P.

revealed what happened at Collins’ house and in response, Kelly contacted the

Ross County Sheriff’s Office.

{¶13} B.P. was the state’s fourth witness. B.P. elaborated on how Collins

was messaging her inappropriate things since October 2020. Collins began his

communication via text messaging but then it was through Snapchat, Instagram,

Tiktok, and Facebook. In these inappropriate messages, Collins would ask her

to give him oral sex. When she took the drill to Collins’ house on February 1st,

she was standing outside and did not want to go in because earlier in the day he

asked for oral sex again. Collins, however, insisted she come inside and told her

that if she did not go inside, Jake would think something was wrong. So, she

went inside. Once inside, she stood by a wall for a few minutes before Collins Ross App. No. 22CA16 6

asked her if she was going to do something for him and hugged her.

{¶14} At this moment, Collins’ wife called him, and he took the facetime

phone call in his daughter’s bedroom. B.P. did not leave and just stood there in

the living room. B.P. elaborated that she just stood there because she was

scared and did not know what to do. When Collins returned, his pants and

underwear were down to his ankles. Collins approached B.P. and began

touching her breast area. B.P. took a few steps back and Collins sighed and sat

on the couch with his pants and underwear still down. B.P. was just standing

there and had her hands on her face when she started feeling her hand being

pulled toward Collins, who then placed his hand down her pants. B.P. then sat

down on the floor in front of Collins. B.P. testified that

[a] couple of minutes went by, I repositioned myself a little bit. He put my hand on his penis. I didn’t, of course I’m not going to find a twenty-six-year-old man sexually attractive. I made him put a blanket on his head because I didn’t want to see him; and he put my head down on his penis.

{¶15} “[W]ithin the first minute [B.P.] said can I stop, can I be done? And

he said no and pushed my head back down.” B.P. continued and Collins

ejaculated. Collins wiped B.P.’s face with a tissue and pulled his pants up. He

then handed B.P. her phone and asked if she deleted the messages. She said

yes, and he opened his door and she walked back home. When she arrived

home, she went straight to her bedroom.

{¶16} The state’s final two witnesses were Deputy Dylan Speakman and

Captain Stanley J. Addy of the Ross County Sheriff’s Office. Deputy Speakman

was one of the deputies that was dispatched to Jake and Kelly’s house on Ross App. No. 22CA16 7

February 2nd regarding a sexual assault case. After speaking with Jake, Kelly

and B.P., the deputy filed a complaint identifying the perpetrator as the neighbor

across the street. Deputy Speakman completed his report and passed it to his

lieutenant.

{¶17} Captain Addy received a call from Kelly on February 15, 2021,

asking about the status of the case. It was at this point that he went and

retrieved the file and began the investigation. As part of his investigation, he

conducted a phone dump of B.P.’s phone. This is when the phone was

transferred to a forensic lab and was connected to a computer to retrieve all

information in it. The dump revealed 636 messages were deleted, but they had

already been overwritten so the content of the messages could not be retrieved.

{¶18} After the state rested, Collins testified on his own behalf denying he

was ever alone with B.P., seeing her on February 1st, or having any

inappropriate contact with her. The next witness was Terry Collins, who is

Collins’ mother. Similar to his testimony, she testified that the weekend of

January 30, 2021, she along with Collins and his family, and her daughter Tyra

and her family, spent two nights in a hotel in Columbus. They did not checkout

until noon on February 1st. After that, they all drove to Cabela’s, then to

McDonald’s and had lunch in the parking lot as the dining area was closed. After

that, they went to Kroger in Chillicothe. At this point they separated as a group,

but that around 6:30 p.m., Collins, his wife and two children, came to Terry’s

house to celebrate Collins’ daughter’s second birthday. Ross App. No. 22CA16 8

{¶19} Tyra Collins-Newland testified next.1 Tyra is Collins’ sister and she

and her husband and children reside with Terry. She reiterated that they spent

two nights in a hotel in Columbus and did not check out until noon on February

1st. Additionally, she testified that on that day, at 6:30 p.m., Collins and his wife

and two kids arrived at Terry’s house to celebrate his daughter’s birthday.

{¶20} Collins’ wife was his last witness. Kentessa testified that she is

familiar with B.P. and babysat her younger brother, N.B., for over a year until she

broke her ankle in October 2020 after being in a car accident. When she was

babysitting, B.P. would come in the morning around 7:30 a.m. and drop N.B. off,

and then pick him up around 3 p.m. Kentessa testified that B.P. was odd and

that they limited interaction with B.P. and believe B.P. is making this up, as

Collins does not have Tiktok or Snapchat or Instagram. And on February 1st,

she was with Collins the whole day and at 6:30 p.m. they went to Terry’s house

and did not leave until after midnight.

{¶21} Based on this evidence, the jury deliberated for over three hours

before finding Collins guilty of unlawful sexual conduct with a minor with the

additional finding that Collins was more than ten years older than B.P. As a third-

degree felony, the trial court imposed a prison term of five years and advised

Collins of the mandatory five-year postrelease control. It is from this judgment of

conviction entry that Collins appeals.

ASSIGNMENTS OF ERROR

I. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE OHIO

1 In the transcript she is identified as Tyler, but that is in error. Her name is Tyra. Ross App. No. 22CA16 9

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

II. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING TESTIMONY OF APPELLANT’S SILENCE, IN VIOLAITION OF APPELLANT’S RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

III. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT TO IMPERMISSIBLE QUESTIONING AND TESTIMONY BY THE STATE, IN VIOLATION OF DUE PROCESS OF LAW AND EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR I

{¶22} In the first assignment of error, Collins argues his conviction is

against the manifest weight of the evidence. The conviction came down to the

credibility of the witnesses, and Collins claims the jury lost its way when it gave

more credibility to the state’s witnesses than his and his family members’

testimonies. Collins focuses his argument on the inconsistency in Jake’s

testimony and the lack of physical evidence to corroborate the state’s witnesses.

First, Collins attacks Jake’s testimony that Collins was home when B.P. went

over with the drill because Jake’s distance estimation of how far the houses are

was put into question. Thus, Jake’s ability to have actually seen Collins that dark

evening was not credible. Second, Collins claims that the state did not submit

any corroborating evidence to support the conviction. Such as Collins’ phone log

to support B.P.’s claim that he facetimed his wife while B.P. was at his house, or

footprints or tire tracks from his house that would have been visible since it was Ross App. No. 22CA16 10

snowing that evening.

{¶23} Third, the text messages in the state’s exhibits did not corroborate

Jake and B.P.’s testimony, where Collins admitted to sending messages in three

of the state’s exhibits, but explained the content of the messages establishing

they were not incriminating evidence. As explained by Collins, the message

asking for the drill was sent much earlier in the day and he just expected B.P. to

drop the drill off at his covered front porch as was customary if no one was home.

Further, the messages in State’s Exhibit Two were sent to check on Jake and the

family. And the duplicated messages sent to B.P. in State’s Exhibit Six were

made to see if B.P. needed a ride to school or to check in on the babysitting

situation for her younger brother N.B. The remaining messages in the state’s

four other exhibits were fabricated by B.P. who is technologically savvy.

{¶24} Fourth, Collins questions the investigation, where there was a delay

of approximately two weeks. Finally, Collins maintains that the only consistent

testimony was his and that of his family members. Collins spent the day with his

family and did not return to his house to get together with B.P. According to

Collins, “[i]t defies reason to suggest that his entire family would lie about that in

a concerted effort to cover up a sexual assault.” Therefore, under the totality-of-

the-circumstances, the jury lost its way when it found Collins guilty of the offense.

{¶25} In response, the state maintains that Collins’ conviction is not

against the manifest weight of the evidence because the jury believed the state’s

witnesses. The state submitted corroborating evidence including a text message

from Collins to Jake the evening of the offense asking for B.P. to come over and Ross App. No. 22CA16 11

drop off the drill. Further, the state’s evidence included hundreds of deleted

messages from B.P.’s phone that B.P. deleted at the direction of Collins.

{¶26} The state disagrees with Collins’ assessment of the discrepancy

between Collins’ and Jake’s distance determination between their houses. The

state asserts this discrepancy did not negate the fact that Jake can see Collins’

house from his window and was able to see Collins return home alone the

evening of the sexual assault. Finally, the state contends that Collins’ testimony

and his family members’ testimony seemed scripted, and Collins’ explanation of

the text messages did not make sense. Accordingly, the state requests that we

affirm Collins’ conviction in which B.P. gave a detailed description of the assault.

I. Law

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

weight of the evidence, an appellate court reviews the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses

and determines whether in resolving conflicts in the evidence, the jury clearly lost

its way and created such a manifest miscarriage of justice that the conviction

must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). “Judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed by a reviewing court

as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley

Const. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected Ross App. No. 22CA16 12

to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction.

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

{¶28} “[A]ppellate courts recognize that issues of evidence weight and

witness credibility are matters for the trier of fact to determine, as long as a

rational basis exists in the record for its decision.” State v. Greeno, 4th Dist.

Pickaway No. 19CA15, 2021-Ohio-1372, ¶ 15. The trier of fact “is free to believe

all, part or none of the testimony of any witness,” and 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.” State v. Dillard, 4th Dist.

Meigs No. 13CA9, 2014-Ohio-4974, ¶ 28, citing State v. West, 4th Dist. Scioto

No. 12CA3507, 2014-Ohio-1941, ¶ 23.

{¶29} In addition, “[a] verdict is not against the manifest weight of the

evidence because the finder of fact chose to believe the State’s witnesses.”

State v. Chancey, 4th Dist. Washington No. 15CA17, 2015-Ohio-5585, ¶ 36,

citing State v. Wilson, 9th Dist. Lorain No. 12CA010263, 2014-Ohio-3182, ¶ 24,

citing State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16.

Moreover, “ ‘[w]hile the jury may take note of inconsistencies and resolve or

discount them accordingly, * * * such inconsistences (sic.) do not render

defendant’s conviction against the manifest weight or sufficiency of the evidence.’

” State v. Corson, 4th Dist. Pickaway No. 15CA4, 2015-Ohio-5332, ¶ 31, quoting Ross App. No. 22CA16 13

State v. Proby, 10th Dist. Franklin No.15AP-1067, 2015-Ohio-3364, ¶ 42, citing

State v. Gullick, 10th Dist. Franklin No. 13AP-317, 2014-Ohio-1642, ¶ 10.

{¶30} Collins was convicted of unlawful sexual conduct with a minor in

violation of R.C. 2907.04(A) which provides:

No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.

With the additional finding that he was ten years older than B.P., making his

offense a third-degree felony. See R.C. 2907.04(B)(3) (“Except as otherwise

provided in division (B)(4) of this section, if the offender is ten or more years

older than the other person, unlawful sexual conduct with a minor is a felony of

the third degree.”) Sexual conduct is defined as “vaginal intercourse between a

male and female; anal intercourse, fellatio, and cunnilingus between persons

regardless of sex[.]” R.C. 2907.01(A).

II. Analysis

{¶31} Collins challenges the credibility of some of the state’s witnesses

and exhibits. He maintains that there were many inconsistencies and the jury

lost its way by finding credible Jake’s and B.P.’s testimonies. Accordingly, we

will begin by outlining the evidence submitted at trial.

A. State’s Exhibits

{¶32} The state submitted seven exhibits which were text messages from

Collins to either Jake or to B.P.

• State’s Exhibit One is messages from Collins to Jake with Jake responding once: Ross App. No. 22CA16 14

o Monday, February 1, 2021 at 6:40 p.m. Collins reached out to Jake: “Hey can [B.P.] bring my impact drill and charger over[.]” Jake responds at 6:48 p.m.: “I will send her over I just charged the battery[.]” Within the same minute, Collins responded: “Ok thanks[.]” o Thursday, February 4, 2021 at 11:09 a.m., Collins sent the following to Jake: “Are my dogs in the yard?”

• State’s Exhibit Two is a series of messages from Collins to B.P. via Facebook with no response from B.P.: o No date stamp for the following messages: “Are you not talking to me now?” “Hello” “Is everything ok?” “I tried to call jake he didn’t answer[.]” o Thursday, February 4 at 5:00 p.m.: “How’s baby sitting” “Talk to me say something please” “Anything at all? Did you get in trouble or something” “Can you tell me anything? Like why are you ignoring me[?]”

• State’s Exhibit Three is a series of messages from Collins to B.P. via Instagram with no response from B.P.: o These two messages are dated February 4, 2021, with a time frame of 11:44 a.m.: “Please tell me what’s wrong” “??” o Then at 5 p.m. on February 4, 2021, Collins sent B.P. the following: “Can you not tell me anything? Please tell me what is going on” “Tess thinks you guys hate her” “You can’t fill me in at all?” “Wanna see a video of [C.C.] arguing with herself in the mirror[?]”

• State’s Exhibit Four is a series of messages from Collins to B.P. via Tiktok with no response from B.P. The messages are dated February 4, 2021 with a time frame of 8:29 p.m.: “Ok tell me what’s going on” “It’s Logan now tell me what’s going on” “Like are you just mad at me or what” “Are we just being ignored or is something going down[?]”

• State’s Exhibit Five is two messages from Collins to B.P. via Snapchat again with no response from B.P. The messages are dated February 4, 2021: “Hey” “Can you not just tell me what I need to know[?]”

• State’s Exhibit Six is two messages from Collins to B.P. via imessages sent on February 4, 2021 at 10:43 a.m. with Collins sending the same message: “Why aren’t you in school” “Why aren’t you in school[?]” Ross App. No. 22CA16 15

• State’s Exhibit Seven does not have a date but is a message exchange between B.P. and Collins: B.P.: “idk what I did wrong” “Ik it was bad but I’ll get better” Collins: “Listen it was not you you were great I’m just not comfortable with it ok” B.P.: “Mk” Collins: “Seriously now delete every message and we will go back to only talking in person ok” B.P.: “It’s fine it’s whatever if u were weirded out that’s fine” “and k”

B. State’s Key Witnesses

{¶33} Jake was in the neighborhood for three years before Collins and his

wife moved across the street. Collins and Jake were neighbors for almost four

years before Collins assaulted B.P. In March 2019, B.P. and her two younger

siblings moved in with Jake and his wife Kelly after their mother died. At the time

B.P. and her siblings moved in, Jake was working, but in November 2019, Jake

stopped working due to being diagnosed with cancer. Due to surgeries and

extensive treatments, Jake was not very mobile and spent most of his time sitting

in his reclining chair in front of the window. From the window, Jake has a view of

Collins’ house and a little bit of the street.

{¶34} On February 1, 2021, Jake saw Collins leave the house with his wife

and kids, but later saw Collins return alone. The evening of February 1st, Jake

received a message from Collins asking for B.P. to return his drill back to him.

Jake summoned B.P. and she agreed to take the drill over. Jake saw B.P. walk

over to Collins’ house and was gone for approximately 25 minutes. After B.P.

returned, Jake saw Collins leave his house in his van. It was not until the next

day that Jake became aware that B.P. was assaulted by Collins. Jake and Kelly Ross App. No. 22CA16 16

spoke with B.P. the morning of February 2nd when B.P. while “nervous” and

“scared” disclosed what occurred. As a result, the Ross County Sheriff’s Office

was contacted and two deputies came to Jake’s house to talk to B.P.

{¶35} During cross-examination, Jake was questioned on whether he

wore glasses, and whether it was dark that evening. Jake testified that the

evening of February 1st he was not wearing glasses but that he is supposed to

wear glasses when he drives. He also responded that it was dark but that there

was a light on outside; thus, he was able to see Collins’ house and driveway.

Jake was also questioned about the distance between the two houses, with Jake

saying it was about 50 feet, but that his house from the road was similar distance

from a point in the courtroom to the wall.

{¶36} Kelly was the second witness and she was home the evening of

February 1, 2021, when Jake received a text message from Collins. In response

to the message, Jake asked B.P. to retrieve the drill from the garage and take it

over to Collins’ house. Kelly saw B.P. walk over to Collins’ house and was gone

for approximately 25 minutes. The next day she received a message from

Breanna asking Kelly to call her. After her phone call with Breanna, Kelly and

Jake spoke with B.P. who was “very nervous” in which B.P. initially denied

anything happened, but then revealed the assault. During cross-examination,

Kelly was asked whether B.P. was a strong girl and whether she was

technologically savvy. The response was yes to both.

{¶37} The fourth witness was B.P. She described in detail how her time at

Collins’ house on the evening of February 1st was spent. B.P. took the drill over Ross App. No. 22CA16 17

to Collins’ house and she did not want to go inside; however, Collins insisted and

he even told her that if she did not come in then Jake would think something was

wrong. While at Collins house, B.P. stood awkwardly against the wall for a few

minutes and covered her face with her hands at certain moments. This is

because she knew what was about to happen due to the earlier messages from

Collins wanting oral sex. B.P. explained that before Collins received a facetime

phone call from his wife, he was hugging her. Collins accepted the phone call

from his wife and B.P. could hear the conversation. Kentessa was asking Collins

to return to his mother’s house as they were all waiting on him.

{¶38} After hanging up the phone, Collins returned to the living room with

his underwear and pants down to his ankles. Collins moved closer to B.P. and

touched her breast area, and when she covered her face he sighed and sat on

the couch still with his underwear and pants down. Collins grabbed B.P. toward

him and placed his hand inside her pants. B.P. was scared and sat down on the

floor, but felt she had to give Collins what he wanted as he was blackmailing her.

The blackmail involved keeping his young children away from her whom she

loves very much, and also telling Jake and Kelly that she was a bad girl and

drinks. While B.P. was on the floor by the couch, Collins grabbed her hand and

placed it on his penis, and then he placed her head on his penis. B.P. then

performed fellatio and Collins ejaculated.

C. Collins’ Witnesses

{¶39} Collins testified on his own behalf. He testified that he lives across

the street from Jake and Kelly and that the distance is about 600 feet between Ross App. No. 22CA16 18

the two houses. Prior to October 2020, Kentessa was babysitting N.B., and

because B.P. would drop and pick him up, she was usually at their house from

2:30 p.m. until around 3:30 p.m. when Collins would return home from work.

B.P. would normally leave shortly thereafter and that Collins was never alone

with B.P., especially since she was infatuated with him.

{¶40} The weekend of January 30, 2021, he was in Columbus with his

family and spent two nights at the Drury Inn. They did not checkout until noon on

February 1st, went to Cabela’s, McDonald’s, Kroger, Petland and then home.

Collins, his wife and children arrived at his house between 4:30 p.m. and 4:45

p.m. that day. While at home, he helped his wife bake a cake for his daughter’s

birthday party. After baking the cake, they left and were at his mother’s house by

6:30 p.m. Collins did not leave his mother’s house at any point and was there

until he and his wife left around midnight. Collins admitted to sending the

message to Jake asking for his drill back on February 1st, but claims he sent it

before he left to go to his mother’s house. Collins did not receive a response

back from Jake until after Collins had arrived at his mother’s house. He did not

hesitate to respond “Ok thanks” to Jake because he assumed, as has happened

before, that B.P. would place the drill on the covered porch when no one was

home.

{¶41} Collins admitted to sending the messages to B.P. in State’s Exhibits

Two and Six, but denied the other messages as coming from him since he does

not have Tiktok, Snapchat or Instagram. In explaining the eight messages sent

in a row to B.P. in State’s Exhibit Two, Collins explained that he was checking in Ross App. No. 22CA16 19

on Jake who has not been responding to him. Although Collins and his wife were

taking a step back from their relationship with B.P., they were not taking a step

back from their relationship with Jake and Kelly. So, when Jake was not

responding to Collins, he reached out to B.P. Further, Collins explained that the

repetitive message in State’s Exhibit Six asking B.P. why she was not at school

was to inquire if she missed the bus and needed a ride. In the past, Kentessa

would give B.P. a ride to school if she missed the bus.

{¶42} The second witness was Collins’ mother, Terry. For the weekend of

January 30th, she was in Columbus at the Drury Inn with Collins and his family.

They did not checkout until noon on February 1st. After checking out, they drove

as a group to Cabela’s, then ate at McDonald’s in the parking lot since the dining

area was closed, but that at the next stop, Kroger in Chillicothe, they parted ways

as she was tired. She told Collins to get the supplies for the party she was

hosting for Collins’ two-year-old daughter. Collins and his wife and two children

arrived at Terry’s house around 6:30 p.m. on February 1st and did not leave until

after midnight. On cross-examination, Terry stated that since the allegations, she

has not seen much of Collins.

{¶43} Collins’ sister Tyra similarly testified that the weekend of January

30th, she was in Columbus for two nights at the Drury Inn with Collins and his

family. She also checked out at the same time, around noon, went to Cabela’s,

McDonald’s, and also joined Collins at Kroger. She parted ways when Collins,

Kentessa and their children went to Petland to get a fish for his two-year-old

daughter. Tyra and her family live with Terry, and she was there when Collins Ross App. No. 22CA16 20

and his wife and children arrived at 6:30 p.m. on February 1st. Tyra testified that

Collins did not leave Terry’s house until midnight. Tyra also testified of her

employment as a substitute teacher at B.P.’s school. She expanded on one of

the interactions she had when she was substituting for one of B.P.’s teachers the

week of February 8, 2021. While in class, she explained that B.P. approached

her desk and told her I know you and I know your family. This was odd to Tyra

since she never had any conversation with B.P. prior to that date.

{¶44} The final witness was Kentessa. She went with Collins, their one-

month-old son, and their soon to be two-year-old daughter to Columbus and

stayed at the Drury Inn for two nights the weekend of January 30, 2021. The day

they checked out, Collins left her sight only once when he went inside Cabela’s

and she stayed in the van with their one-month-old son. She testified that after

getting a pet fish for their daughter for her birthday, she and Collins returned

home, baked a cake, and then left their house around 6:25 p.m. on February 1st

and headed over to Terry’s house. They arrived to Terry’s house around 6:30

p.m. and did not leave until midnight. Collins did not leave and come back when

they were at Terry’s house.

{¶45} Kentessa continued that she requires Collins’ assistance since

breaking her ankle in October 2020. She did not regain full mobility until the end

of February 2021. On the subject of B.P., Kentessa testified that while she was

babysitting N.B., she got to know B.P. since she would drop off N.B. and pick him

up from their house. This arrangement, however, ended in October 2020, after

Kentessa broke her ankle. And the interaction with B.P. also became limited, in Ross App. No. 22CA16 21

which Kentessa testified that B.P. would say some disturbing things, thus, she

limited contact with B.P. and even told B.P. she could no longer come over. But

prior to limiting her interactions with B.P., Kentessa testified that it was B.P. who

installed the Tiktok application on her phone which Kentessa still has on her

phone. Kentessa denied Collins has Tiktok or Instagram on his phone, and that

she is not aware that Collins messages B.P.

D. The jury did not lose its way

{¶46} We first note that it appears that Collins is not arguing that the

state’s witnesses’ testimony was internally inconsistent. Rather, he is arguing

that the state’s evidence is contradictory to his evidence that he was not home

alone on the evening of February 1st. One such argument is Collins’ challenge

to Jake’s credibility because Jake estimated the distance between his house and

Collins’ as being 50 feet, whereas Collins says it is 600 feet. The difference

Collins maintains demonstrates that Jake could not see Collins or his van.

Collins seems to disregard that due to Jake’s illness, he mostly sat at the window

that overlooks Collins’ house. Jake is very familiar with Collins’ appearance as

they have been neighbors for four years and interact often with each other.

Thus, we cannot conclude that the jury, who was in the best position to gauge

the witnesses’ demeanor, gesture, and voice inflection, lost its way in finding that

Jake saw Collins return home alone before B.P. went over the evening of

February 1st.

{¶47} Moreover, Jake’s testimony was corroborated by Kelly’s testimony

who also saw B.P. on February 1st go over to Collins’ house and was gone for Ross App. No. 22CA16 22

approximately 25 minutes. Collins does not challenge Kelly’s credibility. Again,

“a verdict is not against the manifest weight of the evidence because the finder of

fact chose to believe the State’s witnesses.” Chancey, 4th Dist. Washington No.

15CA17, 2015-Ohio-5585, at ¶ 36, citing Wilson, 9th Dist. Lorain No.

12CA010263, 2014-Ohio-3182, at ¶ 24, citing Martinez, 9th Dist. Wayne No.

12CA0054, 2013-Ohio-3189, at ¶ 16.

{¶48} Although “a conviction may rest solely on the testimony of a single

witness, if believed, and there is no requirement that a witness’ testimony be

corroborated to be believed[,]” there was corroborating evidence here. State v.

Jones, 2023-Ohio-380, 208 N.E.3d 321, ¶169 (8th Dist.), appeal not allowed,

2023-Ohio-2771, 170 Ohio St.3d 1518, 214 N.E.3d 587. Collins admitted to

sending the text message on February 1st to Jake asking for B.P. to bring over

the drill. Collins claimed he was not there and the drill was not at his house, but

yet, Collins did not follow-up asking where his drill was until, according to him, he

retrieved it on February 10th.

{¶49} We find that the jury did not lose its way in finding that B.P. went

that evening over to Collins’ house and finding B.P.’s testimony credible.

Additionally, there was no way for B.P. to know that Collins’ family was gathering

at his mother’s house but for B.P. overhearing the facetime phone call, where

both Collins and his wife testified that they have cut back on their interaction with

B.P.

{¶50} Collins also challenges his conviction because of the 13-day delay

in the investigation. But the delay was explained by Captain Addy as an internal Ross App. No. 22CA16 23

issue in which B.P.’s investigative report was not transferred to the detective’s

division from the patrol division until Captain Addy personally retrieved it on

February 15th. Captain Addy became aware of the criminal complaint when

Kelly called in on February 15th to check on the status of the investigation. The

delay was not due to B.P.’s failure to timely report the crime. To the contrary, the

very next morning she reported the sexual assault to trusted adults in her life.

{¶51} Collins finally argues that his testimony was straightforward and that

he was with his family the whole day on February 1st. We disagree as there

were instances of significant inconsistencies during Collins’ testimony. Collins

testified that he works until 3:30 p.m. and that he is not allowed to have his

phone at work. Yet, Collins admitted to sending the two messages in State’s

Exhibit Six, which are dated Thursday, February 4, with a time of 10:43 a.m.,

which is during his work hours. The repetitive message was sent to B.P. asking:

“Why aren’t you in school[?]” Collins explained he sent this message because

sometimes when B.P. would miss school his wife would take B.P. to school.

However, Collins continued that this was only when Jake and Kelly were still

working and that they were no longer working. Jake has not been working since

November 2019 due to his cancer diagnosis and medical treatments. Moreover,

Kentessa was still homebound with a broken ankle and not permitted to drive at

the time Collins sent the message to B.P. Thus, not only was his wife unable to

take B.P., but also Kentessa has B.P.’s phone number and could have sent that

message to her directly. Collins’ messages to B.P. are in contradiction to his

claim that he rarely messages B.P. Ross App. No. 22CA16 24

{¶52} What is more, during cross-examination, Collins provided an

alternative reason for sending the messages to B.P. asking why she was not at

school. Collins testified that he sent the messages to figure out if B.P. was

bringing N.B. over to their house since February 4th was the first day Kentessa

was back to babysitting N.B. Again, this explanation was inconsistent with his

and Kentessa’s testimonies that she was still immobile from breaking her ankle

until the end of February. Kentessa stopped babysitting due to her broken ankle.

And Collins’ explanation was questionable since Kentessa testified that in the

past when she was babysitting N.B., B.P. would drop him off around 7:30 a.m.

Collins did not message B.P. until 10:41 a.m.

{¶53} The other messages Collins admitted to sending were those in

State’s Exhibit Two in which he claimed he sent the communication to B.P.

because he was worried about Jake. This is yet another demonstration that

Collins regularly contacts B.P., and, only the last message of the first set of four

messages mentions Jake. Collins does not explain the other seven messages

that are directed to B.P. and asking if she got in trouble and why she was not

responding to him. There was no mention of Jake in these seven messages.

{¶54} The jury also heard from Kentessa that Collins was not messaging

B.P. back and forth, and that if Collins messaged B.P., it would have been solely

regarding babysitting N.B., because it would have been Kentessa using Collins’

phone to message B.P. Kentessa was not aware of any messaging that was

occurring between Collins and B.P. and during cross-examination, she could not

explain why Collins would be asking B.P. why she was mad at him. But as Ross App. No. 22CA16 25

previously outlined, Collins admitted to sending the messages asking why B.P.

was ignoring him.

{¶55} The jury was in the best position to observe the witnesses and

weigh their credibility, and free to believe all or part or none of the testimony. We

find that the jury did not lose its way in resolving conflicts in the evidence and

finding Collins guilty of unlawful sexual conduct with a minor. B.P.’s testimony of

what happened was descriptive of her interaction with Collins on February 1st.

Collins with the cautionary statement that Jake would think something is wrong if

B.P. did not enter his house, convinced B.P. to come inside. B.P. was

apprehensive because of the earlier messages she received from Collins asking

her for oral sex. He continued to push to obtain his sexual desire by first hugging

B.P., then, even after his wife called him, returning to the room with his

underwear and pants down to his ankles, touching B.P.’s breast area, grabbing

her hand and bringing her closer to him and touching her vaginal area, and then

pushing her head down on his penis. And when B.P. asked to stop, he said no,

and she continued until he ejaculated.

{¶56} Accordingly, there was substantial credible evidence that Collins

committed the offense as charged and the jury did not lose its way in resolving

the conflict between the state’s and Collins’ evidence.2 We hold that the manifest

2 We are mindful that in addressing a manifest weight of the evidence argument, it is our duty to review the entire record and weigh the evidence and all reasonable inferences. We, nonetheless, note that the trial court at sentencing stated the following: “I agree wholeheartedly with the jury. I didn’t believe there was any doubt. I didn’t believe the defendant. I didn’t believe any of his family members that testified. None of it made sense.” Ross App. No. 22CA16 26

weight of the evidence supports Collins’ unlawful sexual conduct with a minor

conviction and overrule his first assignment of error.

ASSIGNMENT OF ERROR II

{¶57} In the second assignment of error, Collins argues his Fifth

Amendment right to remain silent was violated when the state’s witness Captain

Addy testified that Collins did not want to make a statement during the

investigation. Collins acknowledges that the questioning by the state was not

objected to, thus, we review the issue under plain error. According to Collins,

this one reference was highly prejudicial and created an inference of guilt

warranting this court to vacate his conviction.

{¶58} In response, the state asserts that Captain Addy’s testimony was

brief, and was not used by the prosecution as evidence of guilt. The prosecution

did not reference Collins’ decision not to make a statement in either the opening

or closing arguments. Further, during Captain Addy’s cross-examination by

Collins’ counsel, it was established that Collins was cooperative after retaining

counsel and met with Captain Addy and made a statement. Finally, Collins

testified at trial. Therefore, there was no plain error.

Law and Analysis

{¶59} Collins under this assignment of error acknowledges that he failed

to object to Captain Addy’s testimony and plain error is the standard of review.

“Plain 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

establish plain error, Collins “must show that (1) there was an error or deviation Ross App. No. 22CA16 27

from a legal rule, (2) the error was plain and obvious, and (3) the error affected

the outcome of the trial.” State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-

7468, 88 N.E.3d 935, ¶ 26, citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-

Ohio-68, 759 N.E.2d 1240. “Notice of plain error under Crim.R. 52(B) is to be

taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 97,

372 N.E.2d 804 (1978). A “substantial right” is a “right that the United States

Constitution, the Ohio Constitution, a statute, the common law, or a rule of

procedure entitles a person to enforce or protect.” R.C. 2505.02(A)(1).

{¶60} The Fifth Amendment to the United States Constitution provides that

no person “shall be compelled in any criminal case to be a witness against

himself.” This provision applies to the states through the Fourteenth

Amendment. Malloy v. Hogan (1964), 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d

653 (1964).

{¶61} Collins maintains that his Fifth Amendment right was violated during

Captain Addy’s questioning by the prosecution in which the following exchange

occurred:

Q. Were you contacted by anybody else in Defendant’s family? A. The Defendant himself had contacted me, yes. Q. Did you retrieve a statement from him? A. He did not want to give a statement. Q. Were you contacted by anybody else in the Defendant’s family? A. No.

{¶62} In support of his argument, Collins relies on the Supreme Court of

Ohio’s decision in State v. Leach, 102 Ohio St. 3d 135, 2004-Ohio-2147, 807

N.E.2d 335. In Leach, the Supreme Court held that the “[u]se of a defendant’s Ross App. No. 22CA16 28

pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment

privilege against self-incrimination.” Id. at syllabus. The Court reversed Leach’s

convictions due to this violation after applying a two-part test: “(1) admitting

evidence of pre-arrest silence substantially impairs the policies behind the

privilege against self-incrimination; and (2) the government’s use of pre-arrest

silence in its case-in-chief is not a legitimate government practice.” Id. at ¶ 28,

38.

{¶63} In Leach, the Supreme Court outlined the admitted evidence and

the prosecution’s reference to the evidence:

the state’s case against Leach contained no physical evidence and rested solely on the credibility of the state’s witnesses. At trial, Sergeant Corbett was permitted to testify that Leach had left him the message that he wanted to speak with an attorney before talking to the police. The prosecution alluded to Leach’s pre-arrest silence through invocation of his right to counsel during opening argument as well. Leach did not testify at his trial, so evidence of his pre-arrest silence was not used to impeach his testimony. Instead, the state asserts that this evidence is admissible as substantive evidence of guilt.

Id. at ¶ 29.

{¶64} In addressing the first part of the test, the Supreme Court held that

the policy of the Fifth Amendment was violated in Leach:

Allowing the use of pre-arrest silence, evidenced here by the prearrest invocation of the right to counsel, as substantive evidence of guilt in the state’s case-in-chief undermines the very protections the Fifth Amendment was designed to provide. To hold otherwise would encourage improper police tactics, as officers would have reason to delay administering Miranda warnings so that they might use the defendant’s pre-arrest silence to encourage the jury to infer guilt. See State v. Easter (1996), 130 Wash.2d 228, 240, 922 P.2d 1285. Use of pre-arrest silence in the state’s case-in-chief would force defendants either to permit the jury to infer guilt from their Ross App. No. 22CA16 29

silence or surrender their right not to testify and take the stand to explain their prior silence.

Leach, 102 Ohio St. 3d 135, 2004-Ohio-2147, 807 N.E.2d 335, at ¶ 31.

{¶65} In analyzing whether the admission of the statement was a

legitimate government practice pursuant to the second part of the test, the

Supreme Court held that the testimony of Leach not showing up for his

appointment with Sergeant Corbett was legitimate, but not the testimony that

Leach wanted an attorney:

As for the second prong of the Combs analysis, the state argues that this evidence was introduced as evidence of the “course of the investigation.” The appellate court found this argument to be unpersuasive, and we agree. Sergeant Corbett’s testimony that he had made an appointment to meet with Leach to discuss the case but that the appointment was not kept is legitimate. However, we do not find the testimony that Leach stated that he wanted to speak with an attorney before speaking with police to be a statement explaining the course of the investigation. The information was not material to the jury’s determination of guilt or innocence. Rather, the state now concedes that it intended to lead the jury to one conclusion by using evidence of Leach’s prearrest silence in its case-in-chief: that innocent people speak to police to clear up misunderstandings, while guilty people consult with their attorneys. (Emphasis added)

Id. at ¶ 32.

{¶66} The Leach case is similar to the case at bar in that the admission of

Captain Addy’s testimony was for a legitimate government practice. Similar to

the facts in Leach, Collins was the one who contacted Captain Addy and then

indicated he did not want to make a statement. Unlike Leach, however, the state

did not reference Collins’ decision not to give a statement to Captain Addy in

opening statement, while cross-examining Collins, or in closing arguments.

Thus, the state did not use Collins’ decision to not provide a statement to Captain Ross App. No. 22CA16 30

Addy as substantive evidence of guilt. Additionally, there is overwhelming

evidence establishing Collins’ guilt as addressed in the first assignment of error.

Moreover, Collins testified and he does not claim that the admission of this

isolated statement was a factor in his decision to take the stand.

{¶67} Collins’ factual situation is similar to the facts in State v. Gillman, 5th

Dist. Perry No. 20-CA-0018, 2021-Ohio-4377. The Fifth District overruled a

denial of a request for mistrial in which it distinguished Leach and held no abuse

of discretion:

Here, Deputy Eveland was asked if he “had the opportunity to interview [Appellant] regarding this.” Tr. at 139. Deputy Eveland responded, “No, he declined an interview.” Id. While Deputy Eveland’s response to the prosecutor’s question was a reference to Appellant’s pre-arrest silence, we find said response was harmless because Appellant, in contrast to the defendant in Leach, testified in his own defense, thereby, waiving his Fifth Amendment right to remain silent. Accord, State v. Poteet, 7th Dist. Columbiana No. 19- CO-0030, 2020-Ohio-4732; State v. Wall, 6th Dist. Erie No. E-19- 040, 2020-Ohio-5446. Additionally, unlike Leach, in which the prosecution presented testimony regarding the defendant’s silence as substantive evidence of guilt, we find the state herein did not affirmatively seek to use Appellant’s decision not to be interviewed as such and note Appellant testified he would have talked to the police if he had been contacted. (Emphasis added).

Id. at ¶ 35.

{¶68} We do not find the admission of Captain Addy’s testimony that

Collins did not want to give a statement affected the outcome of the case. We

thus, overrule Collins’ second assignment of error.

ASSIGNMENT OF ERROR III

{¶69} In the third assignment of error, Collins argues his trial counsel was

ineffective for failing to object to the state’s direct questioning of Captain Addy in Ross App. No. 22CA16 31

which the response was that Collins did not want to make a statement. Collins

maintains that the failure to object was not trial strategy, and because the case

turned to the credibility of witnesses, Captain Addy’s testimony was highly

prejudicial.

{¶70} The state disagrees. First, the state argues that the statement was

brief and was not used by the prosecution as evidence of guilt. The statement

was not referenced in the prosecutions’ opening and closing arguments, thus,

Collins cannot demonstrate prejudice. Second, it was trial strategy not to object.

During cross-examination of Captain Addy, Collins’ counsel established that

Collins was cooperative with Captain Addy and met with the captain after

retaining counsel.

{¶71} To demonstrate ineffective assistance of counsel, Collins “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, 129 Ohio St.3d 360, 2011-Ohio-3641, 952

N.E.2d 1121, ¶ 113, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1988), paragraph two of the syllabus. Failure to demonstrate either

prong of this test “is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.

06CA3116, 2008-Ohio-968, ¶ 14, citing Strickland, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674. Ross App. No. 22CA16 32

{¶72} Collins “has the burden of proof because in Ohio, a properly

licensed attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 62, citing State v. Calhoun, 86 Ohio St.3d

279, 289, 714 N.E.2d 905 (1999), citing Vaughn v. Maxwell, 2 Ohio St.2d 299,

209 N.E.2d 164 (1965). “In order to overcome this presumption, the petitioner

must submit sufficient operative facts or evidentiary documents that demonstrate

that the petitioner was prejudiced by the ineffective assistance.” Id., citing State

v. Davis, 133 Ohio App.3d 511, 513, 728 N.E.2d 1111 (8th Dist.1999). To

demonstrate prejudice, Collins “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland at 694.

{¶73} “ ‘[W]here the failure to object does not constitute plain error, the

issue cannot be reversed by claiming ineffective assistance of counsel.’ ” State

v. Jarrell, 2017-Ohio-520, 85 N.E.3d 175, ¶ 54 (4th Dist.), quoting State v.

Teitelbaum, 2016-Ohio-3524, 67 N.E.3d 85, ¶ 113 (10th Dist.), citing State v.

Roy, 10 Dist. Franklin No. 14AP-223, 2014-Ohio-4587, ¶ 20.

{¶74} Collins’ counsel did not object during the prosecution’s questioning

of Captain Addy in which he testified that Collins contacted him but did not want

to make a statement. We find no prejudice in counsel’s failure to object as the

admission did not affect the result of the proceeding. Arguably, it was trial

strategy in which Collins’ counsel, during the cross-examination of Captain Addy,

established that Collins met with the captain and provided a statement in the Ross App. No. 22CA16 33

presence of counsel. Such testimony demonstrated Collins’ cooperation with the

investigation. Further, Collins testified at trial.

{¶75} Wherefore, we overrule Collins’ third assignment of error.

CONCLUSION

{¶76} Having overruled Collins’ three assignments of error, we affirm the

trial court’s judgment entry of conviction.

JUDGMENT AFFIRMED. Ross App. No. 22CA16 34

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and 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 Common Pleas Court to carry this judgment into execution.

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

Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________ Kristy S. Wilkin, 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.