[Cite as State v. Hoseclaw, 2013-Ohio-3486.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-12-31
v.
CLINTON A. HOSECLAW, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR2011 0415
Judgment Affirmed
Date of Decision: August 12, 2013
APPEARANCES:
Christopher T. Travis for Appellant
Jana E. Emerick for Appellee Case No. 1-12-31
PRESTON, P.J.
{¶1} Defendant-appellant, Clinton A. Hoseclaw, appeals the Allen County
Court of Common Pleas’ judgment entry of conviction and sentence. For the
reasons that follow, we affirm.
{¶2} On December 15, 2011, the Allen County Grand Jury indicted
Hoseclaw on Count One of unlawful sexual conduct with a minor in violation of
R.C. 2907.04(A) & (B)(4), a second-degree felony, and Count Two of rape in
violation of R.C. 2907.02(A)(2), a first-degree felony. (Doc. No. 3).
{¶3} On December 22, 2011, Hoseclaw was arraigned, entered pleas of not
guilty, and was appointed trial counsel. (Doc. Nos. 9, 52).
{¶4} On January 9, 2012, Hoseclaw filed a motion to suppress statements
he made to law enforcement. (Doc. No. 13). On February 7, 2012, the trial court
held a hearing on the motion, and, on March 27, 2012, the trial court overruled the
motion. (Doc. No. 44).
{¶5} On March 26-27, 2012, a jury trial was held wherein the jury found
Hoseclaw guilty Count One of unlawful sexual conduct with a minor. (Doc. Nos.
45, 52). However, the jury could not reach a verdict on Count Two of rape, so the
trial court declared a mistrial as to that count. (Doc. No. 52); (Mar. 26-27, 2012
Tr., Vol. II at 461-467).
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{¶6} On June 25-26, 2012, a second jury trial was held on the rape charge,
and the jury found Hoseclaw guilty. (Doc. Nos. 97, 104). At the conclusion of the
trial, the trial court proceeded to sentencing. The trial court found that unlawful
sexual conduct with a minor was a lesser-included offense of rape pursuant to
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. (Doc. No. 104); (June 25-
26, 2012 Tr. Vol. II at 485). Thereafter, the State elected to proceed to sentencing
on the rape conviction, and the trial court sentenced Hoseclaw to eight years
imprisonment. (Id.). (Id. at 485-493). The trial court filed its judgment entry of
conviction and sentence on June 28, 2012. (Doc. No. 104).
{¶7} On July 23, 2012, Hoseclaw filed a notice of appeal. (Doc. No. 107).
Hoseclaw raises three assignments of error for our review, all relating to the
second trial on the rape charge.
Assignment of Error No. I
The trial court erred to the prejudice of appellant/defendant by entering a guilty finding upon a verdict that was against the manifest weight of the evidence.
{¶8} In his first assignment of error, Hoseclaw argues that his rape
conviction was against the manifest weight of the evidence. In particular,
Hoseclaw argues that the victim was not credible, because she did not make any
allegations against him until nearly nine months after the alleged incident. He also
argues that the victim was not credible, because, after the alleged rape occurred,
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she remained alone in his vehicle with access to her cell phone and yet she did not
flee or call anyone for help. Finally, Hoseclaw argues that the victim was not
credible because she threw away her clothing and took a shower destroying any
potentially exculpatory physical evidence.
{¶9} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine the entire record, “‘[weigh] the
evidence and all reasonable inferences, consider the credibility of witnesses and
[determine] whether in resolving conflicts in the evidence, the [trier of fact]
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78
Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983). A reviewing court must, however, allow the trier of fact
appropriate discretion on matters relating to the weight of the evidence and the
credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).
{¶10} The criminal offense of rape is codified in R.C. 2907.02, which
provides, in relevant part: “[n]o person shall engage in sexual conduct with
another when the offender purposely compels the other person to submit by force
or threat of force.” R.C. 2907.02(A)(2).
{¶11} The victim, K.S., testified that, at the time of the second trial, she
was fourteen (14) years old, but she had just turned thirteen (13) years old prior to
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the rape. (June 25-26, 2012 Tr. at 185-186). K.S. testified that, in October 2010,
she was living with her brother, Anthony (10 years old), her sister, Elizabeth (14
years old), her mother, Antoinette, and her father. (Id.). K.S. also testified that
she has a half-brother, Eric (19 years old), and a half-brother, Wayne, but they did
not live with the family. (Id. at 186). Eric, according to K.S., was living two
doors down from her parents with Mona and Paul, her parents’ best friends, along
with his girlfriend, Mona and Paul’s daughter. (Id. at 186-187). K.S. testified
that, back in October 2010, she had known Hoseclaw for approximately a month
or so, and he was not a close friend but someone who would hang out with her
half-brother, Eric, at Mona and Paul’s house. (Id. at 187). K.S. testified that she
spent time with Hoseclaw only as part of a group of five to six people, and she
never went to Hoseclaw’s house on Dewey Avenue, nor was she aware that he
lived on Dewey Avenue. (Id. at 188). K.S. testified that, on October 28, 2010
after 4:30 p.m., she went home after volleyball practice, changed into some loose
blue jean shorts, and went to Mona and Paul’s house to visit their daughter and her
friend, Isabella. (Id. at 188-189). K.S. testified that Hoseclaw was at the house,
and Hoseclaw mentioned going to Subway for dinner, which she said sounded
good. (Id. at 190). K.S. testified that she told her mom that Hoseclaw and Eric
were going to get Subway, and she asked her mom if she could go with them to
get everyone in the family Subway for dinner. (Id. at 190-191). K.S. testified that
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her mom allowed her to go and gave the money to Hoseclaw, who went with her
to ask permission. (Id. at 191). K.S. testified that her mother knew Hoseclaw
through her brothers, and Hoseclaw would sometimes play X-box with her 11-
year-old brother, A.J., and, one time, helped A.J. put together a science kit. (Id. at
191-192). K.S. testified that something came up and Eric could not go to Subway
and to Speedway to get a pop for her mom. (Id. at 193). K.S. testified that they
went to Speedway for a drink for her mom, rather than Subway, because her mom
likes the foam cups Speedway has for their Pepsi drinks. (Id.). She testified that,
when they left for Subway, it was just starting to turn dark outside. (Id. at 205).
{¶12} K.S. testified that Hoseclaw was driving and she was seated in the
passenger seat. (Id. at 194). According to K.S., they drove out Leland Avenue,
where they live, and turned left at Jamison Avenue, though she was not paying
attention while Hoseclaw was driving since she was texting and listening to her
music. (Id. at 194-195, 197-198). She testified that she was not paying attention
after Hoseclaw turned left onto Jamison Avenue, and she figured that Hoseclaw
was going to the Speedway on Cable Road rather than the Speedway on Jamison
Ave. (Id. at 195). According to K.S., the next thing she heard was Hoseclaw say,
“Oops, took a wrong turn,” and when she glanced up, they were parked in an
alley, and Hoseclaw was coming over onto her side of the seat. (Id. at 195-196).
She testified that Hoseclaw came over on her side of the seat, knocking her cell
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phone to the floor, and her right arm was pinned against the door and in between
the seat. (Id. at 198-199). K.S. testified that Hoseclaw pinned her left hand up
against the seat, and he was wearing stretchy shorts and a white t-shirt. (Id.). K.S.
testified that Hoseclaw drives a white SUV, her seat was already all the way back,
but she could not recall where the gearshift was located or whether there was a
center console. (Id.); (Id. at 225). K.S. testified that Hoseclaw’s body was on top
of her chest, with all of his weight on her, and he was facing her. (Id. at 200).
K.S. testified that Hoseclaw then pulled down her pants and underwear together
with his left hand, put his knee in between her legs to separate them, and put his
penis inside her vagina. (Id. at 200-201). K.S. testified that Hoseclaw managed to
get her pants and underwear all the way down by pushing them down with his foot
after placing his knee in between her legs. (Id. at 202). K.S. testified that, when
Hoseclaw began to climb over on top of her, she was “in shock” and did not say
anything but later told him to stop. (Id. at 203). She testified that she was “scared
and didn’t really know what to do. And [she] just wanted out of it.” (Id.). When
asked if she fought Hoseclaw off of her, K.S. testified, “I couldn’t move. My
body was pretty much pinned.” (Id.). She testified that she could not see any
houses from where they were parked, just brick buildings and graffiti. (Id. at 204).
K.S. testified that she did not yell since she did not think anyone was around to
hear her. (Id. at 205).
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{¶13} K.S. testified that Hoseclaw put his penis in her vagina and went up
and down for “probably like 10 minutes, 15 minutes.” (Id. at 206). She testified
that she did not see Hoseclaw take out his penis, but she felt it inside her, and it
felt larger than a tampon and hurt. (Id.). K.S. testified that she did not know what
this felt like prior to this incident. (Id.). K.S. testified that Hoseclaw kissed her on
the cheek and was staring into her eyes, but she was looking toward the roof of the
car just wanting it to end. (Id. at 207). According to K.S., after Hoseclaw finished
he returned to his seat, and she laid there in shock not knowing what to do or if
anyone would believe her. (Id.). After a few minutes passed, Hoseclaw told her
to pull up her pants, which she did, though she continued crying. (Id. at 208).
K.S. testified that Hoseclaw told her not to tell anyone or he would hurt her and
her family. (Id.). After that, Hoseclaw drove to the Cable Road Speedway gas
station, and, on the way there, she noticed that they were near her neighborhood
but closer to St. Rita’s Hospital. (Id. at 209). K.S. testified that she waited in the
vehicle about five to ten minutes while Hoseclaw went into Speedway to get the
pop. (Id. at 210). K.S. testified that Hoseclaw then drove to the Subway on Elida
Road, and she again waited for him inside the vehicle, though she was not sure
how long she waited. (Id. at 211). K.S. testified that she still had her cell phone
with her, but she did not text or call anyone, nor did she leave the car and tell
someone what happened, because she did not think anyone would believe her. (Id.
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at 216-217). She testified that she did not think people would believe her because
her friend down the street is “boy crazy” and is always talking about boys. (Id. at
217). She also testified that she did not tell her mom since she does not talk to her
mom about boys or anything like that. (Id.).
{¶14} According to K.S., Hoseclaw then drove her home, she gave her
mom the subs, her mom gave her a sub sandwich, and she went up to her bedroom
and closed the door. (Id. at 211-213). K.S. testified that, as soon as she entered
her bedroom, she just sat down against the bedroom door and cried for five to ten
minutes. (Id. at 214). She testified that, when she changed her clothes, she
noticed blood on her underwear. (Id. at 214-215). K.S. testified that it was more
than spots of blood but also not like she had started her period, either. (Id. at 215).
She testified that she threw her clothes away, took a shower, and did not tell
anyone what happened. (Id.). K.S. testified that, in June 2011, she told her mom’s
best friend, Stephanie, about the rape after she had a bad dream about the rape at
Stephanie’s house. (Id. at 218-219). K.S. testified that Stephanie is like a second
mom and confidant. (Id. at 219-220). K.S. testified that she did not want to tell
her mom because she did not want to cause her mom, who suffers from Lupus, to
be hospitalized because of the stress. (Id. at 213, 220). She testified that she
thought Stephanie would keep her secret, but, after K.S. returned from summer
camp, her mom asked her if Hoseclaw raped her. (Id. at 221-222). After K.S. told
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her mom what happened, her mom called the police. (Id. at 222-223). K.S.
testified that she underwent a gynecological exam and was tested for sexually
transmitted diseases and for pregnancy, though both tests came back negative. (Id.
at 223-224). K.S. identified Hoseclaw, the defendant, as the person who attacked
her in the SUV on the night of October 28, 2010. (Id. at 224). K.S. denied asking
Hoseclaw to have sex and testified that she never agreed to have sex with him.
(Id. at 225). K.S. testified that Hoseclaw forced her to have vaginal intercourse
with him. (Id.).
{¶15} On cross-examination, K.S. testified that it was approximately three
or four minutes from the time she entered Hoseclaw’s vehicle to the time
Hoseclaw stated, “Oops, wrong turn.” (Id. at 232). K.S. testified that, during the
rape, her cell phone fell on the floor of the vehicle in front of her, and she did not
pick her cell phone back up until she arrived home. (Id. at 235). She testified that
she stayed in her bedroom the rest of the night after getting back home. (Id. at
236). She testified that she threw her clothes away in a trash can in her bedroom,
and she eventually emptied out the can when it was garbage night, which was a
Tuesday. (Id. at 237-238). K.S. explained that she did not think anyone would
believe her since her best friend, Mona and Paul’s daughter, lied about boys to
K.S.’s mom. (Id. at 240). K.S. testified that, by the time they reached Subway it
was “[a]lmost all the way dark.” (Id. at 242). K.S. testified that she never told
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anyone about the sexual encounter with Hoseclaw before talking to Stephanie.
(Id. at 243-244). On re-direct, K.S. testified that she told Lima Police Officer
Tiffany Najmowski about the details of the incident. (Id. at 245-246, 249-250).
She further testified that it was normal for her to eat in her room and fall asleep
afterwards since she would be tired from volleyball practice. (Id. at 247).
According to K.S., her mother would not have been able to go up and down stairs
to check on her due to her medical condition. (Id.). K.S. testified that her sister
never said anything about the clothes being in the trash since they have thrown out
clothes before. (Id. at 248). She also testified that, even if her bloody underwear
were visible in the trash can, her sister would probably have just thought she
started her period. (Id.). K.S. testified that she did not bleed through her pants
and did not notice anything on the seat of Hoseclaw’s SUV. (Id. at 249). K.S.
could not recall if she told Najmowski that Hoseclaw threatened her if she told
anyone. (Id. at 250).
{¶16} Stephanie Davenport testified that she has never met Hoseclaw, but
she knows K.S. and became acquainted with her through K.S.’s father who
worked at Domino’s pizza with a friend of hers. (Id. at 253). Stephanie testified
that she has been good friends with K.S.’s mother, Antoinette, for the last six
years. (Id. at 254). Stephanie testified that she treated Antoinette’s children as her
own, and she spent holidays with the family and bought them presents, and
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Antoinette’s children would stay overnight at her house. (Id.). Stephanie testified
that K.S. would often share things with her she might not share with her mother.
(Id. at 255). Stephanie testified that she generally kept K.S.’s secrets, unless it
was something that was harmful to K.S., and then she would give that information
to K.S.’s parents. (Id. at 256). Stephanie testified that K.S. told her that Hoseclaw
raped her last summer, and Stephanie told K.S. that she needed to tell her mother,
and if K.S. did not tell her mother that she would. (Id. at 258-259, 264).
Stephanie testified that she told K.S.’s mom about the rape after K.S. failed to tell
her. (Id. at 259-262). Stephanie testified that, during the beginning of the 2010
school year, K.S.’s behavior changed dramatically—K.S. was no longer excited
about school, did not want to join sports, became more defiant toward her parents,
and closed up to her. (Id. at 264). On cross-examination, Stephanie testified that
she noticed the changes in K.S. after the Allen County Fair, which was in August.
(Id. at 265-266). Stephanie testified that she had a prior theft conviction over eight
years ago. (Id. at 270). On re-direct, Stephanie testified that K.S. asked her not to
tell her mom, but Stephanie told K.S. that she could not do that and gave K.S. two
weeks to talk to her mom about it. (Id. at 271).
{¶17} Antoinette testified that she is the biological mother of K.S., who
was born in September 1997, and K.S. was thirteen years old and in the seventh
grade in October 2010. (Id. at 275-276). Antoinette testified that, in October
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2010, her step-son, Eric, was living at a neighboring house with Mona and Paul
Pongratz, her really good friends. (Id. at 276-277). Antoinette testified that, as of
October 2010, she had only known Hoseclaw for about a month, and he was
visiting with Eric at Mona and Paul’s house since Hoseclaw attended college with
Eric. (Id. at 278-279). Antoinette did not know where Hoseclaw lived, and she
never granted K.S. permission to visit Hoseclaw’s house. (Id. at 281). Antoinette
testified that she recalled that it was a school night after K.S. had returned from
volleyball practice when Hoseclaw and K.S. went to Subway. (Id. at 281-283).
According to Antoinette, K.S. was at the Pongratz’s house, and she came back to
the house with Hoseclaw asking if she could get Subway for the family. (Id. at
283). She testified that she asked K.S. to get her a Pepsi from Speedway, rather
than Subway, since she likes the foam cups Speedway provides for their fountain
drinks. (Id. at 284). Antoinette testified that it was just starting to get dark outside
when K.S. and Hoseclaw left, but it was completely dark by the time they returned
since they were gone for a little over an hour. (Id. at 285). Antoinette testified
that she asked K.S. what took her so long, and K.S. did not respond but simply
handed her the subs and Pepsi and headed upstairs to her bedroom. (Id. at 286).
Antoinette testified that K.S. did not come downstairs that entire evening, and
Hoseclaw did not come over to their house after that night. (Id. at 286-287). She
testified that she reported the rape to the police in July 2011 after Stephanie told
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her that Hoseclaw raped K.S. and K.S. confirmed it was true after K.S. returned
from Christian camp, which was the summer after the rape. (Id. at 287-289).
Antoinette testified that K.S. did not provide details of the rape; rather, she asked
K.S. if Hoseclaw touched her, and K.S. indicated “yes.” (Id. at 290). On cross-
examination, Antoinette testified that she thought Eric was going to go with K.S.
and Hoseclaw to Subway. (Id. at 291-292). She testified that she was not sure
whether Hoseclaw dropped K.S. off at her house or at the Pongratz’s house. (Id.
at 292). Antoinette testified that she believed K.S. (Id. at 294).
{¶18} Lima Police Detective Steven Stechschulte testified that, after
Officer Tiffany Najmowski contacted him about the rape, he spoke with Hoseclaw
on Friday, July 29, 2011, and Hoseclaw denied knowing K.S. (Id. at 295-297).
After Stechschulte told Hoseclaw that he was aware of Hoseclaw’s relationship
with someone living a couple doors down from K.S., Hoseclaw admitted that he
knew K.S.’s brother but said he did not know K.S. that well. (Id. at 298).
Hoseclaw denied having sex with K.S. and did not have any response when
Stechschulte asked about possible DNA evidence in Hoseclaw’s vehicle. (Id.).
Stechschulte testified that he then arrested Hoseclaw for suspicion of rape. (Id. at
299). Stechschulte testified that, on Monday, August 1, 2011, when Hoseclaw
was brought to the Sheriff’s Department for booking, a corrections officer
informed him that several detainees wanted to speak with him regarding
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statements made by Hoseclaw. (Id. at 300). The inmates informed Stechschulte
that Hoseclaw should be removed from the holding cell before he was beat up for
making statements about having consensual sex with a thirteen-year-old girl. (Id.).
Stechschulte testified that this was the first time he heard about Hoseclaw and K.S.
having consensual sex. (Id.). Stechschulte testified that he moved Hoseclaw to
another, separate holding room, and he explained to Hoseclaw that he was moving
him for his own protection due to the statements he made to the other detainees.
(Id. at 301). Stechschulte testified that two days later, on August 3rd, Hoseclaw
contacted him to discuss the sexual encounter with K.S. (Id. at 302). Stechschulte
testified that, during the interview with Hoseclaw when he asked about the
incident occurring in Hoseclaw’s vehicle, Hoseclaw indicated that law
enforcement would never find anything in his vehicle because he never had a
chance to “properly christen” his vehicle—meaning Hoseclaw never had sex in his
vehicle. (Id. at 304). Stechschulte identified State’s exhibit one as a copy of
portions of the August 3rd interview with Hoseclaw. (Id. at 305). Stechschulte
testified that he omitted portions of the interview that were concerning an
unrelated burglary that Hoseclaw alleged occurred at his home. (Id. at 306).
{¶19} Stechschulte testified that, at the time of the incident, Hoseclaw was
living at 169 South Dewey Avenue in Lima, about a block away from Lima
Memorial Hospital. (Id. at 308). Stechschulte testified that he located Hoseclaw’s
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vehicle, a 2002 white Chevy Blazer SUV, and removed the passenger-side bucket
seat and sent the upholstery to BCI for testing. (Id. at 310-316, 334). Hoseclaw’s
vehicle was an automatic transmission with the gear shift located on the floor
towards the front dash area, not in a console between the seats, according to
Stechschulte. (Id. at 315). Stechschulte testified that he located some of
Hoseclaw’s personal items, including a photograph, in the glove box of the
vehicle, so he called Hoseclaw and offered to return those items. (Id. at 316).
Stechschulte testified that he delivered the items to Hoseclaw and informed him
that he removed the seat of his vehicle for testing. (Id. at 318). Stechschulte
identified State’s exhibit two as a copy of the relevant portions of his second
interview with Hoseclaw, which was on October 11th. (Id. at 320). Stechschulte
testified that, during this interview, Hoseclaw changed some of the details of his
story again, including the sequence of the events, and whether they went back to
K.S.’s house first or straight to his house for consensual sex. (Id.). Stechschulte
also testified that, during the October 11th interview, Hoseclaw stated that he had
“christened” his vehicle, but just not with K.S. (Id. at 322). Stechschulte testified
that Hoseclaw would have been about twenty-six years old when the rape
occurred. (Id. at 324). Stechschulte testified that he tried to obtain the video
surveillance tapes from Speedway and Subway, but those businesses do not keep
video from that long ago. (Id. at 325). Stechschulte testified that the area where
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K.S. described Hoseclaw driving was near St. Rita’s hospital and that area has
several secluded alleys and vacant residences. (Id. at 327-328).
{¶20} Lima Police Officer Gregory Adkins testified that he collects
physical evidence at crime scenes for the police department. (Id. at 336-337). He
testified that he helped Stechschulte remove the front passenger seat from
Hoseclaw’s vehicle and brought it back to the police department. (Id. at 337-338).
Adkins testified that Stechschulte placed the seat in the property room at the police
department until they had further instruction from The Bureau of Criminal
Investigations (“BCI”). (Id. at 339). Adkins testified that BCI told them to send
the upholstered part of the seat, not the entire seat, so he cut the upholstered part
from the seat frame, which he identified as State’s exhibit three. (Id. at 340).
Adkins identified State’s exhibit four as the seat cushion upholstery and State’s
exhibit three as the back rest upholstery. (Id. at 345-346). Adkins identified
State’s exhibit five as a buccal DNA swab he took from Hoseclaw. (Id. at 347-
348).
{¶21} Peter James Tassi, Jr., a forensic biologist at BCI, testified that he
located sperm cells on the back portion of the seat (State’s exhibit three). (Id. at
354, 358, 364). He testified that further analysis was done at the lab to determine
if the sperm cells matched the submitted DNA sample (Hoseclaw’s DNA), but he
did not perform that testing. (Id. at 365). On cross-examination, Tassi testified
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that he located eight possible locations on the car seat upholstery for bodily fluid,
but only one location reacted to the color-change test, which indicates the presence
of semen. (Id. at 374, 378). Tassi identified State’s exhibit eight as a copy of his
report. (Id. at 357-358); (State’s Ex. 8).
{¶22} Raymond Peoples, a forensic scientist in the DNA section of BCI,
testified that he compared samples from three swabbings of the car seat, one of
which was the semen stain identified by Tassi. (Id. at 380, 385-386). Peoples
testified that he did not get any profile for the two blind swabs; however, he
obtained a profile from the semen stain, and it was consistent with Hoseclaw’s
DNA. (Id. at 386). Peoples identified State’s exhibit nine as a copy of his report.
(Id. at 385); (State’s Ex. 9).
{¶23} Thereafter, State’s exhibits one through nine were admitted into the
record without objection. (Id. at 397). The defense moved for acquittal pursuant
to Crim.R. 29(A), which was denied. (Id. at 398-400). The defense then rested
and renewed the motion for acquittal, which was again denied. (Id. at 400-401).
{¶24} Hoseclaw argues that the verdict was against the manifest weight of
the evidence since the victim, K.S., was not credible, pointing to several
uncontested facts. First, Hoseclaw argues that K.S. was not credible because she
waited nearly nine months to tell anyone about the incident. While this is true,
K.S. explained that she did not tell anyone because she did not think anyone would
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believe her because her girlfriend, Mona and Paul’s daughter, would lie about
boys all the time. (Id. at 216-217). The jury was free to believe or disbelieve the
victim’s rationale for not reporting the rape. State v. Abdussatar, 8th Dist.
Cuyahoga No. 86406, 2006-Ohio-803, ¶ 25 (jury was free to believe victim even
though the victim did not report the rape for six months where the victim stated
she was scared). We are not persuaded that this diminishes K.S.’s credibility.
{¶25} Next, Hoseclaw argues that K.S. was not credible because she claims
that, immediately after the incident, she did not attempt to flee or call anyone even
though she was alone in the vehicle with her cell phone. It is true that K.S.
testified that she did not flee the vehicle or attempt to call anyone on her cell
phone after the rape occurred; however, K.S. gave the same explanation for this
behavior—she did not think anyone would believe her. Furthermore, K.S.
testified that Hoseclaw threatened to harm her and her family if she told anyone
what happened. (June 25-26, 2012 Tr. at 208). Besides the overwhelming shock
that K.S. felt from the rape, Hoseclaw’s threat may very well have kept her from
telling anyone, at least immediately after the incident. The jury was entitled—and
duty bound—to determine K.S.’s credibility in this matter. State v. Curtis, 8th
Dist. Cuyahoga No. 48011, *2 (Nov. 15, 1984) (jury was free to believe the
victim’s testimony that she was afraid to escape from her attacker while he was in
the shower). We are not convinced that this fact raises a sufficient issue with
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K.S.’s credibility to find that the jury clearly lost its way and created a manifest
injustice.
{¶26} Finally, Hoseclaw argues that K.S.’s credibility is questionable given
that she discarded her clothing and took a shower thereby destroying important
physical evidence. We are not persuaded by this argument, either. It is
completely understandable that a rape victim would want to destroy or discard the
clothing she was wearing during a rape—having that clothing around would serve
as an unwanted reminder of what happened. It is not uncommon that rape cases
lack physical evidence, and physical evidence is not required to prove the rape
occurred; testimony of a victim is sufficient. State v. Banks, 71 Ohio App.3d 214,
220 (3d Dist.1991). Furthermore, it is not uncommon for victims of sexual assault
to bathe or shower afterwards to cleanse themselves—literally and even
psychologically—from the attack. K.S.’s behavior is not abnormal and is
understandable behavior, which does not significantly impact her credibility.
{¶27} The jury had ample reasons to believe K.S. and disbelieve Hoseclaw.
K.S. consistently maintained that Hoseclaw raped her in his vehicle. Hoseclaw’s
story, on the other hand, changed several times. When Hoseclaw was first asked
about the rape allegation, he denied knowing K.S. altogether. (June 25-26, 2012
Tr. at 297-298). Then, when Stechschulte told Hoseclaw that he knew Hoseclaw
knew Mona and Paul who lived near K.S. and her family, Hoseclaw admitted that
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he knew K.S.’s brother, Eric, but did not know K.S. that well. (Id.). Thereafter,
during his first interview with police and after Stechschulte confronted Hoseclaw
with statements he made to other detainees about him having sex with a thirteen-
year-old girl, Hoseclaw admitted he had consensual, vaginal sex with K.S. at his
house on Dewey Street. (State’s Ex. 1). Hoseclaw adamantly denied having sex
in his vehicle with K.S. or anyone else, stating that he never had an opportunity to
“properly christen” his vehicle. (State’s Exs. 1-2); (June 25-26, 2012 Tr. at 303,
310). Instead, Hoseclaw claimed that K.S. grabbed his face and kissed him while
they were driving from Speedway to Subway. (State’s Ex. 1-2). Hoseclaw also
alleged that K.S. asked him if he would have sex with her, because she has wanted
him since she first met him. (Id.). Hoseclaw alleged that he first said “no” but
later agreed, so they dropped off Subway at her house and went to his house and
had sex. (Id.).
{¶28} Hoseclaw also stated that K.S. was with him before on multiple
occasions, getting movies at his house, picking up Speedway, or picking up Eric.
(State’s Ex. 2). K.S. testified, however, that, as of October 2010, she had only
known Hoseclaw for about a month, she never spent time with Hoseclaw except
with a group of people, and she was never at his house. (June 25-26, 2012 Tr. at
187-188). Hoseclaw admitted taking K.S. to Subway, though he thought the date
was not October 28th since he was busy that night. (State’s Ex. 1-2). He also
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alleged that, after they returned from Subway, he stayed at K.S.’s house for 15-20
minutes. (Id.). K.S.’s mother, on the other hand, testified that Hoseclaw did not
come in the house after they returned with Subway. (June 25-26, 2012 Tr. at 286-
287). Hoseclaw stated that after he left K.S.’s house, he went to Mona and Paul’s
house, and then to his friend Sean Robie’s (phonetic) house in Elida. (State’s Ex.
2). When Stechschulte asked which friend’s house, presumably to check
Hoseclaw’s story, Hoseclaw stated that Sean had already moved back to
Michigan, anyway. (Id.). Hoseclaw also alleged that K.S. was wearing stretchy
pants the night they went to Subway, but K.S. testified that she was wearing blue
jean shorts. (June 25-26, 2012 Tr. at 188-189).
{¶29} Based upon our review of the evidence, we are not persuaded that the
jury clearly lost its way creating a manifest injustice. There was evidence upon
which the jury could have reasonably concluded that Hoseclaw purposefully
compelled K.S. to engage in sexual conduct by force. R.C. 2907.02(A)(2). While
K.S.’s story remained consistent, Hoseclaw changed his story several times after
Stechschulte presented him with reasons he thought Hoseclaw was not being
truthful. Under these circumstances, the jury could have believed K.S. and
disbelieved Hoseclaw, and we will not second-guess the jury’s credibility
determination.
{¶30} Hoseclaw’s first assignment of error is, therefore, overruled.
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Assignment of Error No. II
Appellant was deprived of his right to effective assistance of counsel as provided pursuant to the 14th and 6th Amendments to the U.S. Constitution.
{¶31} In his second assignment of error, Hoseclaw argues he was denied
effective assistance of trial counsel when trial counsel failed to object to irrelevant,
prejudicial, or otherwise inadmissible evidence that the State used to bolster the
victim’s credibility.
{¶32} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was
deficient or unreasonable, the defendant must overcome the presumption that
counsel provided competent representation and must show that counsel’s actions
were not trial strategies prompted by reasonable professional judgment.
Strickland, 466 U.S. at 687. Counsel is entitled to a strong presumption that all
decisions fall within the wide range of reasonable professional assistance. State v.
Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if
unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72
Ohio St.3d 545, 558 (1995). Rather, the errors complained of must amount to a
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substantial violation of counsel’s essential duties to his client. See State v.
Bradley, 42 Ohio St. 3d 136, 141-142 (1989), quoting State v. Lytle, 48 Ohio St.2d
391, 396 (1976).
{¶33} Initially, we note that whether to object to the admission of testimony
is generally a matter of trial strategy and not grounds for ineffective assistance.
State v. Schlosser, 3d Dist. No. 14-10-30, 2011-Ohio-4183, ¶ 31. As the Court in
State v. Hartman observed, “‘[b]ecause objections tend to disrupt the flow of a
trial, [and] are considered technical and bothersome by the fact-finder, * * *
competent counsel may reasonably hesitate to object in the jury’s presence.’” 93
Ohio St.3d 274, 296 (2001), quoting State v. Campbell, 69 Ohio St.3d 38, 53
(1994) (internal quotations omitted). With that in mind, we will address the
specific instances where Hoseclaw argues that trial counsel should have objected.
{¶34} The first instance where Hoseclaw alleges that defense counsel was
ineffective for failing to object to allegedly inadmissible hearsay was the
following:
Q: Okay. Why didn’t you tell your mom?
A: I really don’t talk to her about boys or anything like that.
Q: Okay. Did you eventually tell somebody what happened to you,
[K.S.]?
A: Yes, I did. (June 25-26, 2012 Tr. at 217-218).
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{¶35} The second instance where Hoseclaw alleges that defense counsel
was ineffective for failing to object to allegedly inadmissible hearsay was the
following, referring to a conversation K.S. had with her mother about the rape:
Q: Okay. And give the exact words that * * * [your mother] used
with you to ask you about it?
A: She -- as soon [sic] I walked in the door, she’s like -- after I sat
down she asked me, “Did [Hoseclaw] rape you?”
Q: Okay. And what did you tell her.
A: I told her yes. (Id. at 222).
{¶36} The third instance where Hoseclaw alleges that defense counsel was
ineffective for failing to object to allegedly inadmissible hearsay was the
following, referring to a conversation K.S. had with the law enforcement officer
that responded to the reported rape:
Q: Did you tell him what happened?
A: Yes. (Id. at 223).
{¶37} The fourth instance where Hoseclaw alleges that defense counsel was
ineffective for failing to object to allegedly inadmissible hearsay was the
following, referring to a conversation K.S. had with another law enforcement
officer:
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Q: Okay. But the primary person you were talking to would have
been Officer Tiffany?
A: Yes.
***
Q: Okay. And did you go through all these details with her?
A: Yes. (Id. at 246).
{¶38} Hoseclaw’s arguments are meritless. To begin with, the fourth
instance is cross-examination conducted by his trial counsel. Trial counsel was
not ineffective for questioning the victim concerning whether or not she shared the
details of the offense to the reporting officer. This was clearly a trial strategy to
question her credibility, especially in light of the fact that she took over nine
months to come forward.
{¶39} The first and third instances do not involve hearsay. “‘Hearsay’ is a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R.
801(C). The testimony here does not concern the statements K.S. made, only
whether she made any statements. Finally, the second instance is not hearsay
because it was not offered for the truth of the matter asserted—that Hoseclaw, in
fact, raped K.S.—but rather, for the fact that K.S. told her mother that Hoseclaw
raped her. Even if this testimony was inadmissible hearsay, trial counsel was not
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ineffective for failing to object to it since defense counsel’s trial strategy was
premised on the lack of evidence of force or threat of force and, more importantly,
the victim’s lack of credibility. (Id. at 182-183, 434-436). The testimony elicited
by the State was relevant because it explained why the victim did not initially
report the rape and how the rape was ultimately reported to law enforcement.
{¶40} Next, Hoseclaw argues that trial counsel was ineffective for failing to
object to irrelevant and prejudicial evidence of the victim’s lack of sexual history.
The line of questioning was as follows:
Q: Okay. Again, as graphic as this may seem, how do you know his
penis was inside your vagina, [K.S.]?
A: Because I can feel it.
Q: Okay. Did you know what that felt like prior to this time?
A: No. (Id. at 206).
Hoseclaw argues that trial counsel was ineffective for failing to object to this
irrelevant and inadmissible testimony concerning the victim’s past sexual
experiences. This argument lacks merit. The context of the testimony reveals that
the State was seeking to establish penetration, which is required to show sexual
conduct, an essential element of rape. R.C. 2907.02(A)(1), 2907.01(A).
Furthermore, this was not “evidence of specific instances of the victim’s sexual
activity” prohibited under R.C. 2907.02(D); rather, the testimony related to the
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victim’s perception of whether Hoseclaw penetrated. Trial counsel was not
ineffective for failing to object to this testimony.
{¶41} Finally, Hoseclaw argues that trial counsel was ineffective for failing
to object to testimony concerning the emotional impact the rape had upon the
victim. The testimony at issue is the following:
Q: Okay. Was there anything that you noticed during that school
year of 2010 when [K.S.] was in 7th grade, any changes in her
behavior?
A: A lot. She really got to the point where she didn’t -- she wasn’t
as excited about school. She didn’t want to join the sports like she
had the year before. She didn’t want to do anything. She became
more defiant toward her parents and toward people. She got closed
up with me to where she wouldn’t really come out and talk to me as
much or just her whole attitude had changed. She was not the [K.S.]
that I knew. (June 25-26, 2012 Tr. at 264).
{¶42} Hoseclaw cites State v. Presley, 10th Dist. Franklin No. 02AP-1354,
2003-Ohio-6069, in support of his argument that this testimony was overly
prejudicial and inflammatory. The victim in Presley testified that she had
nightmares and both she and her mother tried to commit suicide as a result of the
rape. Id. at ¶ 86. The testimony in this case is much less inflammatory than the
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testimony in Presley, and the testimony in this case was not from the victim but
from a third-party. Additionally, trial counsel cross-examined the witness
regarding this testimony to identify a timeframe for these observations, and the
witness testified that she noticed K.S.’s attitude change around the time of the
Allen County Fair, which was at the end of August a couple months prior to the
rape. (June 25-26, 2012 Tr. at 265-266). At that point, a reasonable juror might
have concluded that the victim’s change in attitude had nothing to do with the
rape; but rather, was related to her age (a teenage girl) and the fact that the school
year was going to begin again. In light of the nature of the testimony and
counsel’s cross-examination, we are not persuaded that trial counsel was
{¶43} Hoseclaw’s second assignment of error is overruled.
Assignment of Error No. III
The trial court erred to the prejudice of the appellant/defendant by admitting irrelevant hearsay evidence of prior consistent statements of an alleged victim.
{¶44} In his third assignment of error, Hoseclaw argues that the trial court
abused its discretion by admitting additional hearsay evidence. He argues that
even if the evidence was not hearsay it was nevertheless inadmissible under
Evid.R. 403.
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{¶45} “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Hearsay is inadmissible absent an applicable
exception. Evid.R. 802. All relevant evidence is generally admissible; however,
relevant evidence “may be excluded if its probative value is substantially
outweighed by considerations of undue delay, or needless presentation of
cumulative evidence.” Evid.R. 402, 403(B).
{¶46} A trial court’s decision whether to admit demonstrative evidence is
reviewed for an abuse of discretion. State v. Jones, 135 Ohio St.3d 10, 2012-
Ohio-5677, ¶ 82. An abuse of discretion is more than an error of judgment; rather,
it implies that the trial court’s attitude is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶47} Hoseclaw argues that the following testimony was inadmissible
hearsay, which the trial court should have excluded:
Q: * * * Stephanie, I’d like to direct your attention specifically to
last summer * * *[a]nd ask if [K.S.] made a revelation to you that
was somewhat startling and out of the ordinary?
A: Yes. She was at my house spending the night so was the other
kids, the other two (2) * * * her and her sister and brother had came
to my house to spend the night. We took a trip to Wal-Mart. A
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friend of mine, Rita, went with us. Rita had went into Wal-Mart to
pick some things up that she needed for the house. That is when
[K.S.] and me were sitting in my van and she proceeded to kind of
mumble words to me. I didn’t try to push her. I figured when she
was ready to talk she would talk. She then proceeded to tell me --
[DEFENSE COUNSEL]: Objection. Hearsay.
[PROSECUTOR]: Your honor, we are not offering it for it’s [sic]
truth.
THE COURT: It’s --
[PROSECUTOR]: We’re offering it --
THE COURT: It’s not being offered for the truth of the matter --
[PROSECUTOR]: for the circumstances of how the --
THE COURT: It’s by --
[PROSECUTOR]: -- the revelation was made.
THE COURT: -- being offered for the fact that she said it, if she
said it.
[DEFENSE COUNSEL]: And that’s the question that should be
asked, not what she said. She’s not -- she does not get to repeat
word for word the hearsay.
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[PROSECUTOR]: Your honor, first of all, I’m asking about a
statement made by [K.S.]. She’s not an out of court declarant. She
already testified. So by definition [sic] is not hearsay under the
evidence rules.1
THE COURT: Overruled. You may testify.
A: (BY THE WITNESS) she proceeded to tell me that she was
raped. And as far as getting into any other detail like that with her, I
did not. I did, however, ask her that she needed to speak with her
mother on the circumstances of what went on. And that I knew she
would be leaving for a camp or whatever and that if she didn’t let
her mother know so that the proper steps could be tooken [sic] that I
would in turn let her mother know what she had just confided in me
about.
Q: When she reported this to you did she, in fact, though
characterize it as a rape versus a consensual sexual encounter?
A: Yes. (June 25-26, 2012 Tr. at 256-259).
{¶48} The trial court did not abuse its discretion by allowing the witness to
testify concerning the victim’s statement that she was raped since it was offered
1 We recognize that the prosecutor incorrectly characterized the subject statement as non-hearsay due to the fact that the declarant was testifying in court. However, that incorrect statement of law by the prosecutor is immaterial to our ruling on this particular argument.
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not for its truth but to show why the witness reported the rape to the victim’s
mother, which the mother, then, reported to law enforcement. See State v.
Thomas, 61 Ohio St.2d 223, 232 (1980) (statements made by an out-of-court
declarant are properly admissible to explain the actions of a witness to whom the
statement was directed). Therefore, the testimony was not inadmissible hearsay
when offered for that purpose. Furthermore, Hoseclaw offers no reason why the
testimony should have been excluded under Evid.R. 403(B), and we find no
reason either. As such, we must conclude that the trial court did not abuse its
discretion here.
{¶49} Hoseclaw’s third assignment of error is, therefore, overruled.
{¶50} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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