State v. Holloway

2024 Ohio 3360, 250 N.E.3d 1270

Opinion

[Cite as State v. Holloway, 2024-Ohio-3360.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2023-12-114

: OPINION - vs - 9/3/2024 :

TIMOTHY HOLLOWAY, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 23CR40430

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

Arenstein & Gallagher, and Elizabeth Conkin, for appellant.

S. POWELL, P.J.

{¶ 1} Appellant, Timothy Holloway, appeals his conviction in the Warren County

Court of Common Pleas after a jury found him guilty of two counts of first-degree felony

rape in violation of R.C. 2907.02(A)(2). For the reasons outlined below, we affirm

Holloway's conviction. Warren CA2023-12-114

Introduction

{¶ 2} The relevant individuals involved in this case, Holloway, and his three

alleged victims, C.R., M.W., and C.L., were all at one time members of Hash House

Harriers ("HHH") in Cincinnati, Hamilton County, Ohio. The HHH is a

social/running/drinking club that was established in 1938 by British soldiers stationed in

Malaysia during the build-up to World War II. Today, HHH has chapters, affectionately

referred to by HHH members as "kennels," in most major cities throughout the country

and around the world. This includes the HHH kennel located in Cincinnati. The Cincinnati

kennel is known as the "Sin City" kennel. On its website, the Sin City kennel refers to

itself as "a drinking club with a running problem."

{¶ 3} HHH members participate in events to raise money for charity and other so-

called "hash" events. A "hash" is a type of race/meet-up that generally involves one to

three "beer stops" along a three-to-six-mile wooded trail where two HHH members, the

"hares," set out markers that the other HHH members, the "hounds," are to follow—like a

scavenger hunt for beer, a social event, that provides some exercise along the way. There

may also be other "checks" along the trail, like a "boob check" or a "package check,"

where the male and female participants in the hash have the option of showing either

their breasts or their penis before moving on to the next stop. This is in addition to a "shot

check" where participants are provided with a shot of alcohol to drink prior to moving on.

{¶ 4} The use of nicknames is how HHH members generally communicate

amongst themselves. This is to provide HHH members with a certain level of anonymity.

Unlike the nicknames provided to HHH members in other countries, the nicknames

provided to HHH members in the United States are oftentimes rife with sexual undertones

and inuendo. For example, within HHH's Sin City kennel in Cincinnati, Holloway was

given the nickname "No Funyun," whereas C.R., M.W., and C.L. received the nicknames,

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"G-Spot," "Fourgasm" or "Four-G's," and "Dicklopedia," respectively. Holloway's then

long-term, live-in girlfriend, Maggie, was also an HHH member who participated in the Sin

City kennel's hashes. The Sin City kennel gave Maggie the nickname "Whooters" or "Dr.

Whooters."1

Facts and Procedural History

{¶ 5} On April 3, 2023, the Warren County Grand Jury returned an indictment

charging Holloway with two counts of rape in violation of R.C. 2907.02(A)(2), both first-

degree felonies pursuant to R.C. 2907.02(B). These two charges were set forth in Counts

1 and 2 of the indictment. The indictment also charged Holloway with one count of gross

sexual imposition in violation of R.C. 2907.05(A)(1), a fourth-degree felony under R.C.

2907.05(C)(1). This charge was set forth in Count 3 of the indictment. The indictment

alleged the following facts as it relates to each of those three offenses.

{¶ 6} Count 1 arose after it was alleged Holloway had raped his first alleged

victim, C.R., by forcibly holding her down and engaging in vaginal intercourse with her.

This rape was alleged to have occurred on the living room couch found in Holloway's

home located in Mason, Warren County, Ohio sometime between April 1, 2021 through

May 1, 2021.

{¶ 7} Count 2 arose after it was alleged Holloway had raped his second alleged

victim, M.W., by forcibly thrusting his hand into her pants and digitally penetrating her

vagina with his fingers. This rape was alleged to have occurred while Holloway was

driving M.W. to her Hamilton County, Ohio home from a brewery located in Hamilton,

Butler County, Ohio on the evening of February 6, 2022.

{¶ 8} Count 3 arose after it was alleged Holloway grabbed the breasts and

1. The record indicates that Holloway and his now ex-girlfriend, Maggie, mutually agreed to break off their nine-year relationship just prior to the allegations against Holloway becoming known. -3- Warren CA2023-12-114

buttocks of his third alleged victim, C.L., while the two were laying on a bed located in a

spare bedroom in Holloway's home sometime between November 1, 2019 and January

31, 2020.

The Jury Trial

{¶ 9} On April 5, 2023, Holloway was arraigned and entered a plea of not guilty

to all three charges. Several months later, on November 6 through November 8, 2023,

the trial court held a jury trial on the matter. During the trial, the jury heard testimony from

a total of six witnesses. This included testimony from all three of Holloway's alleged

victims, C.R., M.W., and C.L. The following is a summary of those three witnesses'

testimonies.

Summary of C.R.'s Testimony – Count 1

{¶ 10} C.R., aka G-Spot, became a member of HHH in 2013. On April 30, 2021,

C.R. met up with some friends to have a drink at a brewery in Mason, Warren County,

Ohio. Holloway, minus his then girlfriend, Maggie, was one of those friends.2 C.R.

testified that she arrived at the brewery at approximately 7:00 p.m. Once there, C.R.

testified that she consumed somewhere between two to four beers over the next two to

three hours. C.R. testified that after finishing up at the brewery, Holloway then drove her

and two other friends back to his house to hang out. C.R. testified that this consisted

primarily of them "all standing around and drinking beer and whatever was there and

talking" in Holloway's kitchen. However, rather than just beer, C.R. testified that Holloway

also gave her Absinthe to drink.3 C.R. testified that this ultimately resulted in her

consuming approximately five to six ounces of Absinthe, plus an additional one or two

2. The record indicates that Maggie was at that time in the hospital after undergoing gallbladder surgery.

3. The United States Supreme Court has defined Absinthe as "the common name of a highly aromatic liqueur of an opaline green color and bitter taste" that is prepared by "steeping in alcohol or strong spirit bitter herbs," the chief of them being wormwood. Erhardt v. Steinhardt, 153 U.S. 177, 182 (1894). -4- Warren CA2023-12-114

cans of beer, within a span of an hour-and-a-half.

{¶ 11} C.R. testified that as the group of friends began to leave Holloway's house

that she, clearly feeling the effects of the Absinthe, went and sat down on the living room

couch. C.R. testified that it was at this point that Holloway also came into the living room

and took a seat on the couch across from her. C.R. testified that she and Holloway then

started talking and listening to music. C.R. testified that she and Holloway did this for

some time until approximately 1:00 a.m. As the night wore on, C.R. testified that she then

told Holloway that she was tired and that she wanted to go to sleep. C.R. testified that

Holloway then got up from his seat on the couch, came over to her, took off her glasses,

and kissed her. To this, C.R. testified that she was "stunned," "shocked," and that she

just "froze." Although frozen to the spot, C.R. testified that she nevertheless kissed

Holloway back because she "wasn't able to find the strength to do anything other than do

that in the moment."

{¶ 12} C.R. testified that as they were kissing, Holloway proceeded to get "closer"

to her and eventually "got on top" of her. C.R. testified that Holloway then began to pull

down her pajama bottoms and "boy shorts" that she had been wearing that night. To this,

C.R. testified that she "could figure out what might happen" so she told Holloway in a loud

and clear voice, "no, Tim stop, don't, no, stop. Don't." C.R. testified that she also tried to

push Holloway off of her while saying, "no Tim stop. Maggie, I respect Maggie, Tim no,

don't do this." C.R. testified that Holloway responded by stating, "no, don't worry about

it, it's fine. Don't worry about it."

{¶ 13} Although clearly telling Holloway no and to stop, C.R. testified that Holloway

was nonetheless able to successfully pull down her pajama bottoms and boy shorts and

insert his penis into her vagina. After penetrating her vagina with his penis, C.R. testified

that Holloway then proceeded to have vaginal intercourse with her for "maybe two

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minutes." C.R. testified that after Holloway had sex with her for those two minutes that

Holloway then stopped and got up. Once Holloway stopped, C.R. testified that she put

her clothes back on. C.R. testified that she and Holloway then went upstairs and went to

sleep in Holloway's bedroom. When asked how that happened, how she could go and

sleep in the same bed as a man who she claims had just raped her, C.R. testified:

I think there was some words exchanged and I was still in shock and kind of felt like—I kind of pretend, when I'm in fear, that I'm not having that experience directly myself, but I'm almost just watching from down below. And, that it's not really me. So I kind of was in a state of mind to rationalize decisions because of what had just happened.

C.R. also testified when asked why she did not just leave rather than going upstairs to

sleep in Holloway's bed, "I could not rationally think. I was shocked by what he'd done. I

was tired, I had been drinking and it just wasn't a choice I could make at that time."

{¶ 14} C.R. testified that she woke up early the next morning and stayed awake

until the sun began to rise over the horizon. C.R. testified that, after being awake for

several hours, Holloway then also woke up and they "ended up having sex again." When

asked why she did not tell Holloway no and to stop and push Holloway off like she had

done the night done before, C.R. testified:

I was just in shock over what had happened the night before and I knew I wasn't thinking rationally and I think a part of me just, in the moment, it was my way of self-protecting, that's all I knew to do.

C.R. also testified that she "did not want that to happen and it wouldn't have happened,

had the downstairs not happened," something that C.R. later testified was "entirely

against [her] will."

{¶ 15} C.R. testified that after having sex that morning that she and Holloway then

both got up out of bed and dressed. Once dressed, C.R. testified that Holloway then

drove her back to the brewery in Mason where she had parked her car the night before.

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C.R. testified that she later confronted Holloway about what had happened at a

subsequent hash event, stating "that thing that happened, that should've never

happened," to which Holloway responded, "fair enough." C.R. testified that she eventually

told her new boyfriend what had happened to her, which ultimately resulted in C.R.

reporting to police that Holloway had raped her. The record indicates that C.R. made this

report in the summer of 2023 approximately two years after the alleged rape was said to

have occurred.

Summary of M.W.'s Testimony – Count 2

{¶ 16} M.W., aka Fourgasm or Four-G's, became a member of HHH in September

of 1999. M.W. testified that she lives next to Sharon Woods on "the Hamilton County

side" of Fields Ertel Road approximately three-to-four miles from Holloway's house in

Mason, Warren County, Ohio. Following a hash event that took place in Hamilton, Butler

County, Ohio on the afternoon of February 6, 2022, M.W. testified that Holloway had

offered to drive her home so that her husband, who was cold and not feeling well, could

go home and rest up. Given the closeness between their two homes, M.W. testified that

she agreed and accepted Holloway's offer of a ride home. After securing her ride home,

M.W. testified that she and Holloway then went to a nearby brewery in Hamilton to get a

drink. While at the brewery, M.W. testified that both she and Holloway each drank two

beers, which M.W. testified that she paid for, "to be nice, to say hey, thanks for the ride

home."

{¶ 17} M.W. testified that once they finished drinking their beers, she and Holloway

then left the brewery and got into Holloway's car so that he could drive her home. M.R.

testified that shortly after Holloway began driving her home that Holloway, while speeding

and breaking multiple other traffic laws, and with just his left hand on the steering wheel,

got his right hand into her pants "likety split," "[i]nside of [her] underwear, all the way down

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to skin," and "was taking his fingers and they were inside of [her] female parts," her

"vaginal area." M.W. testified that Holloway "went straight there," "[r]ight to the point,"

and "just went to town." M.W. also testified that she could "[a]bsolutely" feel Holloway's

fingers inside her vagina and that it "hurt because he bites his nails, so it was very

scratchy."

{¶ 18} M.W. testified that while Holloway was digitally penetrating her vagina that

she "kept asking him to stop, stop, stop…" the whole time. M.W. testified that she also

tried to pull Holloway's hand out from her pants, and his fingers out of her vagina, but that

"[h]e was strong. No, not able to, he's strong." When asked if Holloway ever said anything

during this time, M.W. testified:

Yeah, he was like, oh, doesn't this turn you on and you know, oh just a whole bunch of lewd things. And I'm telling him stop, stop, stop. I don't lift weights or anything. My arms, as you get older—I'm not strong.

M.W. also testified when asked if Holloway ever stopped at any of the stop signs, and if

he had stopped, whether she would have tried to get out of the car, "Oh, heck yeah. I

would've taken off my seatbelt. I left it on because of high speeds but there was nowhere

for me to go." M.W. testified that Holloway eventually stopped penetrating her vagina

with his fingers once he pulled into her Hamilton County home's driveway. M.W. testified

that Holloway then "took his hand out, was sniffing his fingers and making comments like

I hope that was really good for you and you know, sniffing, licking. That was a turn on, I

guess."

{¶ 19} M.W. testified that she then got out of Holloway's car and went straight

inside her house to where her husband was waiting and watching something on his

computer. M.W. testified that she did not immediately tell her husband what had

happened, however, because:

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when I accepted a ride home, I didn't anticipate what was going to happen or else I wouldn't have accepted a ride home and I think I was still in shock. And, so, I just immediately went into the bathroom, closed the door and trying to attend to myself, clean myself up.

M.W. testified that this included her cleaning up some blood from her vagina and applying

Vaseline to her vagina in order to "calm it down," the pain that she felt in her vagina for a

"good number of days, probably just short of a week."

{¶ 20} The record indicates that M.W. sent a message to Holloway later that

evening via Facebook Messenger sarcastically stating that she appreciated Holloway

driving her home earlier that day. This message included an "eyes rolling" emoji.

Holloway responded to M.W.'s message 40 seconds later by stating, "Should have made

out with me in the car, want to do lunch tomorrow?" Three days later, M.W. responded,

"NO NO FUNyan. Rather just enjoy hashin w/ you & Whooters." M.W. thereafter testified

that, although she was still in shock and embarrassed about what had happened to her,

and even though she is part of the "baby boomer" generation who just pull themselves up

by the bootstraps and move on, she eventually did speak with the police about what she

alleged Holloway had done to her. The record indicates that M.W. spoke with police over

a year after the alleged rape was said to have occurred.

Summary of C.L.'s Testimony—Count 3

{¶ 21} C.L., aka Dicklopedia, became a member of HHH in June of 2019.

Following a hash event that took place on the afternoon of January 4, 2020, C.L., along

with several other HHH members who had participated in that day's hash event, went to

Twin Peaks, a nearby bar/restaurant in Mason [sic], to have some more drinks and grab

a bite to eat. C.L., who testified that she had consumed less than two beers and possibly

a shot of vodka during that day's hash, described Twin Peaks as kind of like a Hooter's,

"but apparently with better food." C.L. testified that after finishing up at Twin Peaks that

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she and three others, two of which were Holloway and Holloway's then girlfriend, Maggie,

went to a brewery and then to a "dive bar" before finally heading back to Holloway's house

to spend the night. C.L. testified that she did this because Holloway "had offered" and

because she was "very cautious about drinking and driving" and did not want to make the

approximately 40-minute drive to her home in Kentucky after having consumed that much

alcohol.

{¶ 22} C.L. testified that upon arriving at Holloway's house, she continued drinking

both hard seltzer and beer before eventually heading to bed in one of the Holloway's

home's two spare bedrooms. C.L. testified that this occurred at approximately 2:30 or

3:00 a.m. C.L. testified that later that night she awoke to find Holloway laying "behind"

her on the bed, "touching" her, "reaching over" her side, underneath her shirt, and "up

over" her breasts. C.L. testified that during this time she could feel Holloway's erect penis

pressing against her back near her buttocks. C.L. testified that in response to Holloway

touching her breasts that she "tucked" her arm and then proceeded to "push" Holloway's

arm away. C.L. testified that she did this all while making a groaning sound to indicate

that she did not want to be touched, a "deterring" sound, "not an oh yeah," type of noise.

To this, C.L. testified that, rather than stopping, Holloway instead moved his hand down

to her hip and around her stomach.

{¶ 23} C.L. testified that it was at this time that another of the HHH's Sin City kennel

members sleeping over at Holloway's house came into the room and said, "what's going

on in here?" C.L. testified that this member then said to Holloway something to the effect

of, "it's time for bed" or "let's get to bed." C.L. testified that Holloway then got up off the

bed and left the room. This other member testified and confirmed C.L.'s testimony about

what he had said to Holloway upon finding Holloway in bed with C.L. early that morning.

C.L. testified that after Holloway left the room that she just "laid there" in "shock," "freaked

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out," and "still computing what just happened." C.L. testified that she then "dozed" off

until morning when she left Holloway's home in Mason and drove back to her own home

in Kentucky. C.L. testified that she did not immediately tell anybody about this incident

because:

I was still very new in the hash and [Holloway] was a fixture in the hash and from what I could tell respected and I didn't want to be that girl that just started and I loved it, I loved the hash. I didn't want to hurt Maggie [Holloway's girlfriend], I didn't want to hurt the hash, so—and I thought it was just me and a one time incident and I just, you know, brushed it under the rug and let it go and get over it.

The Jury's Verdict, The Trial Court's Sentence, and Holloway's Appeal

{¶ 24} Following deliberations, which the record indicates lasted a total of just 93

minutes, the jury returned a verdict finding Holloway guilty of raping C.R. and M.W. as

alleged in Counts 1 and 2 of the indictment, but not guilty of gross sexual imposition

against C.L., as alleged in Count 3 of the indictment. Upon receiving the jury's verdict,

the trial court scheduled the matter for sentencing and ordered that a presentence

investigative report be completed. The trial court held the previously scheduled

sentencing hearing on December 19, 2023. During this hearing, the trial court sentenced

Holloway to serve an indefinite sentence of four to six years in prison, less 47 days of jail-

time credit. The trial court also ordered Holloway to pay court costs and notified Holloway

that he would be subject to a mandatory five-year period of postrelease control following

his release from prison. This is in addition to the trial court classifying Holloway as a Tier

III sex offender.

{¶ 25} On December 20, 2023, Holloway filed a notice of appeal from his

conviction. Following briefing, oral argument was held before this court on August 5,

2024. Holloway's appeal now properly before this court for decision, Holloway has raised

six assignments of error for review. For ease of discussion, we review Holloway's first

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four assignments of error together and Holloway's fifth and sixth assignments of error out

of order. Those first four assignments of error are as follows.

Assignment of Error No. 1:

{¶ 26} DEFENSE COUNSEL WERE INEFFECTIVE IN FAILING TO FILE A

MOTION TO SEVER THE CHARGES AGAINST HIM, THEREBY DENYING MR.

HOLLOWAY OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL AND FIFTH

AMENDMENT RIGHT TO A FAIR TRIAL.

Assignment of Error No. 2:

{¶ 27} DEFENSE COUNSEL WERE INEFFECTIVE IN FAILING TO OBJECT TO

THE JURY INSTRUCTION REGARDING VENUE OF COUNT TWO, THEREBY

DENYING MR. HOLLOWAY OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL AND

FIFTH AMENDMENT RIGHT TO A FAIR TRIAL.

Assignment of Error No. 3:

{¶ 28} DEFENSE COUNSEL WERE INEFFECTIVE IN FAILING TO OBJECT TO

EVIDENCE MR. HOLLOWAY HAD BEEN BANNED FROM THE CINCINNATI HHH AND

TO THE STATE'S USE OF THE TERM "VICTIM" WHEN DESCRIBING AND OR

REFERRING TO THE COMPLAINING WITNESSES, THEREBY DENYING MR.

Assignment of Error No. 4:

{¶ 29} THE CUMULATIVE EFFECT OF DEFENSE COUNSEL'S ERRORS

VIOLATED MR. HOLLOWAY'S EFFECTIVE ASSISTANCE OF COUNSEL AS

GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE CONSTITUTION

OF THE STATE OF OHIO, AND DENIED HIM HIS FIFTH AMENDMENT RIGHT TO A

FAIR TRIAL.

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{¶ 30} In his first, second, third, and fourth assignments of error, Holloway argues

his trial counsel provided him with ineffective assistance both before and during the jury

trial held in this matter. We disagree.

Ineffective Assistance of Counsel Standard

{¶ 31} "A criminal defendant has the right, under both the United States and Ohio

Constitutions, to the effective assistance of counsel." State v. Pennington, 2024-Ohio-

2020, ¶ 34 (12th Dist.). However, while a criminal defendant is constitutionally guaranteed

the effective assistance of counsel, the criminal defendant's counsel is also afforded a

strong presumption "to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment." State v. Burns, 2014-

Ohio-4625, ¶ 7 (12th Dist.). Given this presumption, to prevail on an ineffective

assistance of counsel claim, a criminal defendant challenging the effectiveness of his or

her counsel on appeal must satisfy the two-pronged test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). State v. Ford, 2021-Ohio-782, ¶ 13 (12th Dist.).

{¶ 32} "[U]nder Strickland, in order to prevail on a claim that counsel was

ineffective, a criminal defendant must show (1) that his counsel's performance was

deficient and (2) that that performance prejudiced him." State v. Simpson, 2020-Ohio-

6719, ¶ 18, citing Strickland at 687. This test requires the reviewing court to "determine

whether the totality of circumstances supports a finding that counsel's performance was

deficient, and if so, whether the deficient performance was prejudicial to the defendant."

State v. Romero, 2019-Ohio-1839, ¶ 34. "Trial counsel's performance is considered

deficient where 'that counsel's performance fell below an objective standard of reasonable

representation . . . .'" State v. Zamora, 2023-Ohio-1847, ¶ 21 (12th Dist.), quoting State

v. Drain, 2022-Ohio-3697, ¶ 67. Therefore, to establish deficient performance, the

appellant must show "that counsel made errors so serious that counsel failed to function

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as the 'counsel' guaranteed by the Sixth Amendment." State v. Hamblin, 37 Ohio St.3d

153, 156 (1988), citing Strickland at 687.

{¶ 33} "Trial counsel's deficient performance is deemed prejudicial where there

exists 'a reasonable probability that, but for counsel's errors, the proceeding's result would

have been different.'" State v. Elcess, 2023-Ohio-2820, ¶ 22 (12th Dist.), quoting State v.

Lawson, 2021-Ohio-3566, ¶ 93. "'A reasonable probability is a probability sufficient to

undermine confidence in the outcome.'" State v. Brown, 2024-Ohio-749, ¶ 64, quoting

Strickland at 694. Accordingly, to establish prejudice, the appellant must show "'that

counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is

reliable.'" State v. Cepec, 2016-Ohio-8076, ¶ 51, quoting Strickland at 687.

{¶ 34} A reviewing court may approach the two-pronged ineffective assistance of

counsel analysis set forth in Strickland by "starting with either prong, and it need not

examine the effectiveness of counsel's performance if appellant fails to prove prejudicial

effect." State v. Reeder, 2014-Ohio-2233, ¶ 32 (12th Dist.), citing State v. Bradley, 42

Ohio St.3d 136, 142 (1989). This is because, as is now well established, "[t]he failure to

make an adequate showing on either prong is fatal to an ineffective assistance of counsel

claim." State v. Jewell, 2022-Ohio-2727, ¶ 19 (12th Dist.). Therefore, as noted by the

Ohio Supreme Court, "'[a] defendant's failure to satisfy one prong of the Strickland test

negates a court's need to consider the other.'" State v. Shouse, 2014-Ohio-4620, ¶ 29

(12th Dist.), quoting State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448.

Failure to File a Motion to Sever

{¶ 35} In his first assignment of error, Holloway argues his trial counsel was

ineffective for failing to file a motion to sever the charges levied against him. We disagree.

{¶ 36} "Pursuant to Crim.R. 8(A), two or more offenses may be charged in the

same indictment if the offenses charged are: (1) of the same or similar character; (2)

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based on the same act or transaction; (3) based on two or more acts or transactions

connected together or constituting parts of a common scheme or plan; or (4) part of a

course of criminal conduct." State v. Hall, 2022-Ohio-1147, ¶ 216 (12th Dist.). The law

favors joining multiple offenses in a single trial. State v. Moshos, 2010-Ohio-735, ¶ 78

(12th Dist.), citing State v. Lott, 51 Ohio St.3d 160, 163 (1990). "The joinder of offenses

is, in fact, to be liberally permitted in circumstances where the requirements set forth in

Crim.R. 8(A) are satisfied." Hall, citing State v. Wilson, 2002-Ohio-4709, ¶ 49 (12th Dist.).

This is because, as is now well established, the joinder of offenses '"conserve[s] judicial

resources, reduce[s] the chance of incongruous results in successive trials, and

diminish[es] inconvenience to the witnesses.'" State v. Addison, 2020-Ohio-3500, ¶ 49

(12th Dist.), quoting State v. Schaim, 65 Ohio St.3d 51, 58, 1992-Ohio-31. "Nonetheless,

pursuant to Crim.R. 14, if it appears that the defendant would be prejudiced by joinder of

the charged offenses, the trial court may grant a severance." State v. Morsie, 2014-Ohio-

172, ¶ 28 (12th Dist.), citing State v. Diar, 2008-Ohio-6266, ¶ 95. "The defendant bears

the burden of proving prejudicial joinder." State v. Freeze, 2012-Ohio-5840, ¶ 31 (12th

Dist.).

{¶ 37} While the defendant bears the burden of proving prejudicial joinder, the

state may rebut the defendant's claim by utilizing one of two methods. State v. Ashcraft,

2009-Ohio-5281, ¶ 16 (12th Dist.). These two methods are known as the "other acts test"

and the "joinder test." See State v. Workman, 2017-Ohio-8638, ¶ 76 (12th Dist.). The

"other acts test" requires the state to demonstrate that it could have introduced evidence

of the joined offenses at separate trials pursuant to the "other-acts" provision set forth in

Evid.R. 404(B). State v. Hensley, 2010-Ohio-3822, ¶ 40 (12th Dist.). On the other hand,

the "joinder test" requires the state to demonstrate that evidence of each crime joined at

trial is "simple and direct." State v. Matthews, 2013-Ohio-3482, ¶ 38 (12th Dist.). "'If the

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state can meet the joinder test, it need not meet the stricter 'other acts' test.'" Moshos,

2010-Ohio-735 at ¶ 79, quoting State v. Johnson, 88 Ohio St.3d 95, 109, 2000-Ohio-276.

That is to say, "[a] showing by the state that the evidence relating to each crime is simple

and direct negates any claims of prejudice and renders joinder proper." State v. Bice,

2009-Ohio-4672, ¶ 53 (12th Dist.). "'[A]n accused is not prejudiced by joinder when

simple and direct evidence exists, regardless of the admissibility of evidence of other

crimes under Evid.R. 404(B).'" Hall, 2022-Ohio-1147 at ¶ 217, quoting State v. Franklin,

62 Ohio St.3d 118, 122 (1991).

{¶ 38} After a thorough review of the record, we find the evidence relating to each

of the three charges levied against Holloway was simple and direct, thereby satisfying the

joinder test set forth above. The charges involved three different women (C.R., M.W.,

and C.L.), that took place in three separate and distinct locations (Holloway's living room

couch, Holloway's car, and in one of Holloway's two spare bedrooms), and at three

separate times over a period of three different years (2020, 2021, and 2022). The

testimony elicited by the state was also presented to the jury with victim specific witnesses

who testified to matters that were specific to each of those three women and their alleged

unwanted sexual encounters with Holloway. This tactic ensured that the evidence elicited

by the state as to each of the three charges remained separate and distinct from one

another. This tactic also made it very unlikely that the jury would be confused by which

of the three charges went with which of Holloway's three alleged victims, C.R., M.W., and

C.L. This is particularly true in this case when considering the trial court instructed the

jury as part of its final jury instructions that:

The charges set forth in each count constitute a separate and distinct matter. You must consider each count and the evidence applicable to that count separately and you must state your findings with each count uninfluenced by your verdict as to any other count. The defendant may be found

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guilty or not guilty of one or all of the offenses charged.

{¶ 39} It is presumed that the jury followed the trial court's instructions. State v.

Thompson, 2023-Ohio-559, ¶ 26 (12th Dist.). Therefore, because the evidence elicited

by the state at trial was simple and direct, any motion to sever filed by Holloway's trial

counsel in this case would have been futile. "An attorney is not ineffective for failing to

make a futile or frivolous request." State v. White, 2022-Ohio-2182, ¶ 14 (12th Dist.).

"Trial counsel is [also] not ineffective for failing to make a futile argument." State v.

Trafton, 2023-Ohio-122, ¶ 29 (12th Dist.); see, e.g., Hensley, 2010-Ohio-3822 at ¶ 37-43

(appellant's trial counsel was not ineffective for failing to file a motion to sever where "a

motion to sever would not have been meritorious" because "the evidence of each crime

was simple and direct" given that "the state made it clear that each victim's alleged

encounters with appellant were separate, distinct incidents"). Accordingly, Holloway's first

argument alleging his trial counsel was ineffective for failing to file a motion to sever the

charges levied against him lacks merit.

(2) Failure to Object to the "Course of Criminal Conduct" Jury Instruction

{¶ 40} In his second assignment of error, Holloway argues his trial counsel was

ineffective for failing to object to the trial court's "course of criminal conduct" instruction

provided to the jury as it relates to Count 2 of the indictment. Specifically, Holloway

argues the trial court erred by instructing the jury, pursuant to R.C. 2901.12(H), that in

order to establish Warren County as a proper venue for his alleged rape of M.W., the state

was required to "prove beyond a reasonable doubt that all or any part of the offenses

involved in the defendant's course of conduct occurred in Warren County," and that:

In order for you to find the defendant's course of conduct occurred in Warren County, then you must find beyond a reasonable doubt any of the following:

One, the offenses involved alleged victims of the same type

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or from the same group;

Two, the offenses were committed in the same relationship to the alleged victims;

The offenses were committed as part of the same chain of events, and furtherance of the same purpose or objective;

Four, the offenses involved the same or similar plan or method; and

Finally, the offenses were committed along the defendant's line of travel in this State, regardless of his origin or destination.

{¶ 41} Holloway claims his trial counsel's failure to object to this instruction

amounted to deficient performance that was prejudicial to him because there was an

"absence of any evidence" to support a "course of criminal conduct" instruction ever being

given to the jury. However, contrary to Holloway's claim, the record contains ample

evidence to support the trial court providing the jury with the "course of criminal conduct"

instruction as set forth above. This includes evidence that all three women, C.R., M.W.,

and C.L., were of the same type and part of the same group, the HHH, and more

specifically, the Sin City kennel. This also includes evidence that all three offenses were

alleged to have been committed by Holloway in his same relationship to those three

women, and in furtherance of the same purpose or objective, his own sexual gratification.

{¶ 42} This is in addition to the evidence indicating that all three offenses involved

Holloway deploying the same or similar plan or method when committing those offenses.

This includes evidence that Holloway made his move only after each of the three women

were alone with him, either at his home or in his car, after having consumed multiple

alcoholic beverages. Therefore, because the trial court did not err by providing the jury

with the above "course of criminal conduct" instruction in order to establish Warren County

as the property venue for Count 2 of the indictment, Holloway's trial counsel was also not

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ineffective for failing to object to the trial court giving that instruction to the jury. This is

because, had Holloway's trial counsel done so, any such objection surely would have

been overruled by the trial court. Again, trial counsel is not ineffective "for failing to make

a futile argument." Trafton, 2023-Ohio-122 at ¶ 29. Accordingly, Holloway's second

argument also lacks merit.

(3) Failure to Object to Evidence that Holloway Had Been Banned from HHH's Sin City Kennel and References to C.R., M.W., and C.L. as "Victims" at Trial

{¶ 43} In his third assignment of error, Holloway argues his trial counsel provided

him with ineffective assistance by failing to object to the state eliciting testimony that he

had been banned from the Sin City kennel following C.R.'s, M.W.'s, and C.L.'s allegations

against him becoming known. Within that same assignment of error, Holloway also

argues his trial counsel was ineffective for not objecting to C.R., M.W., and C.L. being

referred to as "victims," as opposed to his "alleged victims," at trial. This is because,

according to Holloway, this evidence improperly "bolstered the credibility of the women"

claiming he had "sexually assaulted them." However, even if we were to assume

Holloway's trial counsel was somehow deficient for failing to object to this evidence,

which, as discussed more fully below, we do not, whatever prejudice resulted from the

introduction of such evidence at trial, if any, did not in any way impact the jury's verdict

finding Holloway guilty of raping C.R. and M.W. as alleged in Counts 1 and 2 of the

indictment.

{¶ 44} In so holding, we note that the evidence regarding Holloway's ban from the

Sin City kennel initially came out during the state's redirect examination of C.R. only after

Holloway's trial counsel cross-examined C.R. about she having herself received a one-

year ban from a different kennel. This testimony included, in its entirety, the following

exchange between C.R. and the state:

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Q. All right. And, you were asked whether or not you had been banned from another kennel. How long were you banned from another kennel?

A. For one year.

Q. Was the defendant banned from this kennel?

A. Not at that time.

Q. Has he been banned?

A. He has.

{¶ 45} That Holloway had been banned from the Sin City kennel after the

allegations against him became known was also briefly mentioned by M.W. during her

direct examination when asked by the state about the time she finally felt comfortable

telling her husband about Holloway raping her. This exchange included, in its entirety,

the following:

Q. And, then later that same year, is that when he was banned from the hash?

A. Yes.

Q. And when do you finally – or let me ask you, do you ever tell your husband?

A. After I found out that he was banned from the hash.

Q. Okay. And, why did you wait until then?

A. Well, because it's not pleasant you know, and how in the heck did I get myself in that situation and if I would've told him earlier, he would've been angry and would've wanted to confront [him] and I didn't want that to happen.

{¶ 46} This is in addition to Holloway's ex-girlfriend, Maggie, briefly mentioning that

the timing of her and Holloway's breakup occurred "right before" the allegations levied

against Holloway became known, thus resulting in Holloway's ban from the Sin City

kennel. These fleeting references to Holloway's ban were just that, fleeting, and hardly

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something that would have had any meaningful impact on the proceedings so as to

undermine this court's confidence in the jury's verdicts finding him guilty of raping C.R.

and M.W. as alleged in Counts 1 and 2 of the indictment.

{¶ 47} Moreover, that Holloway's trial counsel did not object to any of these brief

mentions of Holloway being banned from the HHH's Sin City kennel, or to C.R., M.W.,

and C.L. being referred to as his "victims" at trial, can be seen as a strategic decision on

the part of counsel to avoid calling any greater attention to those matters than deserved.

"[T]he decision to object or not object is within the strategic consideration of trial counsel."

State v. Villani, 2019-Ohio-1831, ¶ 19 (12th Dist.). That is to say, the "[f]ailure to make

objections does not automatically constitute ineffective assistance of counsel . . . ." State

v. Homer, 2006-Ohio-1432, ¶ 15 (12th Dist.). "This is because '[o]bjections tend to disrupt

the flow of a trial and are considered technical and bothersome by a jury.'" State v.

Kaufhold, 2020-Ohio-3835, ¶ 58 (12th Dist.), quoting State v. Steele, 2005-Ohio-943, ¶

100 (12th Dist.).

{¶ 48} In this case, for example, had Holloway's trial counsel objected every time

that an inadvertent slip of the tongue resulted in C.R., M.W., and C.L. being referred to

as his "victims" at trial, a very real possibility exists that the jury would consider this petty

and quite trivial in comparison to the gravity of the situation, thus creating an ever

increasingly negative opinion of Holloway after each objection being made. See State v.

Wilson, 2019-Ohio-338, ¶ 28 (12th Dist.) (noting that excessive objections, or objections

to otherwise trivial matters, can negatively impact the jury's opinion of the defendant). It

was therefore certainly within the realm of possibility that such a decision was made by

Holloway's trial counsel as part of a conscientiously determined trial strategy. See State

v. Boeddeker, 2010-Ohio-106, ¶ 20 (12th Dist.). Accordingly, because Holloway cannot

demonstrate either of the two elements necessary to establish an ineffective assistance

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of counsel claim under Strickland, Holloway's third argument also lacks merit.

(4) Cumulative Error Doctrine

{¶ 49} In his fourth assignment of error, Holloway argues the cumulative effect of

his trial counsel's errors resulted in him receiving ineffective assistance of counsel. "The

doctrine of cumulative error applicable to claims of ineffective assistance of counsel asks

whether counsel's errors, when viewed cumulatively, show 'that there is a reasonable

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

be different' even though none of the errors individually warrant relief." State v. Nicholson,

2024-Ohio-604, ¶ 343, quoting Strickland, 466 U.S. at 694. However, as noted by the

Ohio Supreme Court, because none of Holloway's individual ineffective assistance claims

have merit, Holloway "cannot establish a right to relief simply by joining those claims

together." State v. Dean, 2015-Ohio-4347, ¶ 296. This is because, as discussed more

fully above, Holloway either failed to establish that his trial counsel's performance was

deficient, or that he was subject to any resulting prejudice therefrom. This holds true even

when viewing each of his trial counsel's alleged "errors" cumulatively. See State v.

Bradley, 42 Ohio St.3d 136, 146-147 (1989). Therefore, just as with his third argument,

Holloway's fourth argument must likewise fail. Accordingly, finding no merit to any of the

four arguments raised by Holloway herein, Holloway's first, second, third, and fourth

assignments of error are overruled.

Assignment of Error 6:

{¶ 50} MR. HOLLOWAY'S CONVICTIONS WERE BASED ON LEGALLY

INSUFFICIENT EVIDENCE, THEREBY DENYING MR. HOLLOWAY HIS RIGHT TO DUE

PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES.

{¶ 51} In his sixth assignment of error, Holloway argues the jury's verdict finding

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him guilty of raping M.W. as alleged in Count 2 of the indictment was not supported by

sufficient evidence. This is because, according to Holloway, the record is devoid of any

evidence to establish Warren County as a proper venue for that offense. However, as

discussed more fully above, because Holloway was alleged to have raped M.W. as part

of a "course of criminal conduct," venue for Count 2 was proper in Warren County

pursuant to R.C. 2901.12(H). As previously noted, that statute addresses venue when

an offender commits offenses in different jurisdictions as part of a course of criminal

conduct and provides, in pertinent part, that:

[w]hen an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred.

Therefore, because venue for Count 2 was proper in Warren County pursuant to R.C.

2901.12(H), Holloway's sixth assignment of error lacks merit and is overruled.

Assignment of Error No. 5:

{¶ 52} MR. HOLLOWAY'S CONVICTIONS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND MUST BE VACATED.

{¶ 53} In his fifth assignment of error, Holloway argues the jury's verdicts finding

him guilty of raping C.R. and M.W. as set forth in Counts 1 and 2 of the indictment were

against the manifest weight of the evidence. We disagree.

{¶ 54} "Unlike the sufficiency-of-the-evidence standard of review," which

addresses the state's burden of production, "'a manifest-weight-of-the-evidence standard

of review applies to the state's burden of persuasion.'" State v. Casey, 2024-Ohio-689, ¶

10 (12th Dist.), quoting State v. Messenger, 2022-Ohio-4562, ¶ 26. "To determine

whether a conviction is against the manifest weight of the evidence, this court must look

at the entire record, weigh the evidence and all reasonable inferences, consider the

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credibility of the witnesses, and determine whether in resolving the 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." State v. Lewis,

2020-Ohio-3762, ¶ 18 (12th Dist.), citing State v. Wilks, 2018-Ohio-1562, ¶ 168.

{¶ 55} But, even then, a determination regarding the witnesses' credibility is

primarily for the trier of fact to decide. State v. Baker, 2020-Ohio-2882, ¶ 30 (12th Dist.),

citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

Therefore, given that it is primarily the trier of fact who decides witness credibility, this

court will overturn a conviction on manifest-weight grounds "only in extraordinary

circumstances when the evidence presented at trial weighs heavily in favor of acquittal."

State v. Kaufhold, 2020-Ohio-3835, ¶ 10 (12th Dist.). When reviewing a jury verdict, such

as the case here, this court may reverse a defendant's conviction "only when there is

unanimous disagreement with the verdict." State v. Marcum, 2016-Ohio-263, ¶ 10 (12th

Dist.), citing State v. Gibbs, 134 Ohio App.3d 247, 255 (12th Dist.1999).

{¶ 56} Holloway argues the jury's verdicts finding him guilty of raping C.R. and

M.W. were against the manifest weight of the evidence because their "behavior" in the

days, weeks, and months after the supposed rapes "contradicts their allegations" against

him. However, given the record in this case, the jury was made well aware of what C.R.

and M.W. did, and did not do, after they allege Holloway raped them. This included

evidence that both C.R. and M.W. had attended social events where Holloway was

present. But, while some may find C.R.'s and M.W.'s behavior odd, as we have stated

previously, "this type of blame shifting does not resonate with this court." State v. Jackson,

2023-Ohio-3749, ¶ 25 (12th Dist.) (rejecting appellant's claim that his rape conviction

"must be reversed because [the victim] 'never explained why she failed to seek medical

attention' or 'adequately explained why she delayed contacting law enforcement'"). This

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is particularly true in this case when considering Holloway had ample opportunity to cross-

examine C.R. and M.W. at length as to what they were doing both immediately before

and after the rapes occurred. This includes Holloway questioning C.R. and M.W. as to

why they did not immediately report to the police that Holloway had raped them.

{¶ 57} However, regardless of what C.R. and M.W. may or may not have done in

the time before and after being raped, the jury clearly found their testimony detailing what

Holloway had supposedly done to them credible and worthy of belief. This was not error

for it is well established that this court is required to give substantial deference to the trier

of fact, in this case the jury, on issues involving witness credibility. State v. Buckland,

2023-Ohio-2095, ¶ 20 (12th Dist.). This is because "the decision whether, and to what

extent, to credit the testimony of particular witnesses is within the peculiar competence of

the factfinder, who has seen and heard the witness." Jackson at ¶ 26. It is equally well-

established that "[a] conviction is not against the manifest weight of the evidence simply

because the trier of fact believed the testimony offered by the prosecution." State v.

Baker, 2020-Ohio-2882, ¶ 31 (12th Dist.). Therefore, because the jury's verdicts finding

Holloway guilty of raping C.R. and M.W. as set forth in Counts 1 and 2 of the indictment

were not against the manifest weight of the evidence, Holloway's fifth assignment of error

also lacks merit and is overruled.

{¶ 58} Judgment affirmed.

M. POWELL and BYRNE, JJ., concur.

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