[Cite as State v. Messenger, 2012-Ohio-2692.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-11-40
v.
CHAD A. MESSENGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court Trial Court No. 10-CR-500
Judgment Affirmed
Date of Decision: June 18, 2012
APPEARANCES:
Robert C. Nemo for Appellant
Brent Yager for Appellee Case No. 9-11-40
SHAW, P.J.
{¶1} Defendant-appellant Chad A. Messenger (“Messenger”) appeals the
August 30, 2011 judgment of the Marion County Court of Common Pleas
sentencing him to eighteen years in prison after a jury convicted him of
Kidnapping, in violation of R.C. 2905.01(A)(3), a felony of the first degree, two
counts of Rape, in violation of R.C. 2907.02(A)(2), both felonies of the first
degree, Felonious Assault, in violation of R.C. 2903.11(A)(1), a felony of the
second degree, two counts of Domestic Violence, in violation of R.C. 2919.25(A),
both felonies of the fourth degree, and two counts of Violating a Protection Order,
in violation of R.C. 2919.27(A)(1), both misdemeanors of the first degree.
{¶2} On April 9, 2010, Messenger and Christi Messenger (“Christi”), the
victim in this case, were married. According to Christi, several months into their
marriage Messenger became abusive.
{¶3} On September 12, 2010 the first of three incidents related to this case
occurred between Messenger and Christi. On that date Messenger came into the
bedroom he shared with Christi and a fight ensued wherein Messenger pulled
Christi’s hair and she pulled his. Messenger then pushed Christi off the bed
causing her to hit her head on either a nearby table or a bed rail. As Christi
attempted to crawl away from Messenger, Messenger took her into the living
room, placed her into a chair and told her not to move. When Messenger left the
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living room Christi ran out of the house and went to seek help from a neighbor.
As a result of this incident, Christi was awarded a Temporary Protection Order
(“TPO”) against Messenger that required Messenger to have no contact with
Christi even if she gave him consent.
{¶4} On September 16, 2010 the second incident related to this case
occurred. On that date, Christi called the police due to Messenger repeatedly
calling her in violation of the terms of the TPO. Officer David Clemons of the
Marion Police was taking Christi’s statement when Messenger called Christi
again. Officer Clemons got on the phone and was cussed at severely by
Messenger who was angry because another man was in the house with Christi.
Officer Clemons informed Messenger that he was a police officer and that
Messenger was in violation of the TPO. Messenger agreed to meet Officer
Clemons at the police station fifteen minutes later but never showed up.
{¶5} On October 5-6, 2010 the third incident related to this case occurred.
On the night of October 5, Christi and Messenger, having apparently reconciled
despite the TPO still being in effect, went together to a bar called Wild Bill’s in
Marion at approximately 8 p.m. An argument ensued as they left Wild Bill’s after
Messenger accused Christi of flirting with the bartender. When they returned to
their residence on Plymouth Street, the argument escalated to the point that
Messenger smashed Christi’s face into the floor of their home with enough force
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that she thought her jaw was broken. Afterward, Messenger forced Christi out of
the house and into the Jeep that Christi owned. As Christi fought against him,
Messenger slammed Christi’s right foot in the door of the Jeep several times.
{¶6} Next, Messenger got into the Jeep and drove Christi out to some
property his parents owned in LaRue, Ohio. At the property in LaRue Messenger
digitally penetrated both Christi’s vaginal and anal cavities against her will.
Messenger then drove Christi to a house he and Christi had been renovating where
his Ford Explorer was parked and switched vehicles from Christi’s Jeep to his
Explorer, taking Christi with him. Throughout the night and into the early
morning hours of October 6 Messenger drove to various places until he had to go
to work transporting mail in Delaware, Ohio.
{¶7} When Messenger exited the Explorer at work, Christi got out and
sought assistance from one of Messenger’s coworkers, Brian Criswell. Though
Criswell offered to let Christi use his phone, he was unwilling to dial 9-1-1 for
Christi. Christi was asked to leave the area by Criswell’s supervisor so she went
to a United Dairy Farmers nearby and called 9-1-1. She was then taken to Grady
Memorial Hospital.
{¶8} On October 14, 2010, as a result of the October 5-6, 2010 incidents,
Messenger was indicted for Kidnapping in violation of R.C. 2905.01(A)(3), a
felony of the first degree, two counts of Rape, in violation of R.C. 2907.02(A)(2),
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both felonies of the first degree, Felonious Assault, in violation of R.C.
2903.11(A)(1), a felony of the second degree, Domestic Violence, in violation of
R.C. 2919.25(A), a misdemeanor of the first degree, Violating a Protection Order
in violation of R.C. 2919.27(A)(1), a misdemeanor of the first degree, and
Disrupting Public Services in violation of R.C. 2909.04(A)(3), a felony of the
fourth degree.
{¶9} On November 10, 2010, the State filed a supplemental indictment
related to the events of October 6, adding a charge of Domestic Violence, in
violation of R.C. 2919.25(A), a felony of the fourth degree, based on Messenger’s
prior conviction of Assault, in violation of R.C. 2903.13, a misdemeanor of the
first degree.1
{¶10} On April 14, 2011, the State filed another supplemental indictment
charging Messenger with Domestic Violence in violation of R.C. 2919.25(A), a
felony of the fourth degree, for the September 12, 2010 incident, and another
count of Violating a Protection Order, in violation of R.C. 2919.27(A)(1), a
misdemeanor of the first degree, for the September 16, 2010 incident.
{¶11} On August 15, 2011 the State filed a Nolle Prosequi as to the
misdemeanor Domestic Violence charge from the original indictment and as to the
Disrupting Public Services charge from the original indictment.
1 This July 29, 2010 conviction for Assault was amended from a charge of Domestic Violence. Christi was the victim in that case. (State’s Ex. 2).
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{¶12} Messenger pled not guilty to all of the charges and the case
proceeded to a jury trial which was held August 15-17, 2011. The jury found
Messenger guilty on all counts, namely: Kidnapping in violation of R.C.
2905.01(A)(3), a felony of the first degree; two counts of Rape, in violation of
R.C. 2907.02(A)(2), both felonies of the first degree; Felonious Assault, in
violation of R.C. 2903.11(A)(1), a felony of the second degree; two counts of
Domestic Violence, in violation of R.C. 2919.25(A), both felonies of the fourth
degree; and two counts of violating a Protection Order in violation of R.C.
2919.27(A)(1), both misdemeanors of the first degree.
{¶13} On August 24, 2011 the court held a sentencing hearing. On August
26, 2011, the court held a second sentencing hearing to notify Messenger of his
duties under the Adam Walsh Act. On August 30, 2011, the court filed its
Judgment Entry sentencing Messenger to 18 years in prison.2
{¶14} It is from this judgment that Messenger appeals, asserting the
following assignments of error for our review.
2 Messenger was sentenced to nine years in prison on the Kidnapping charge and seven years in prison on the Felonious Assault charge with those sentences to be served concurrently. Messenger was sentenced to eight years in prison on each Rape charge, with those sentences to be served concurrent to each other, but consecutive to the Kidnapping/Felonious Assault sentence. The Domestic Violence charge arising out of the October 6, 2010 incident merged with the felonious assault charge. On the Domestic Violence charge arising out of the September 12, 2010 incident, Messenger was sentenced to one year in prison to be served consecutive to all other charges. Messenger was sentenced to 180 days in jail on both Protection Order Violations to be served concurrent with all of the other prison terms, creating an aggregate sentence of 18 years in prison. Messenger received credit for time served.
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ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN ALLOWING A POLICE OFFICER TO GIVE OPINION EVIDENCE ON BATTERED WOMAN SYNDROME, NOT ONLY GENERALLY, BUT BY ALLOWING OPINION EVIDENCE AS IT RELATED TO THE ALLEGED VICTIM.
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS A RESULT OF HIS COUNSEL’S FAILURE TO OBJECT TO NUMEROUS EVIDENTIARY MATTERS.
ASSIGNMENT OF ERROR III
THE JURY’S GUILTY VERDICTS OF RAPE, KIDNAPPING, FELONIOUS ASSAULT AND DOMESTIC VIOLENCE WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶15} In the interests of clarity, we elect to address the assignments of error
out of order.
Third Assignment of Error
{¶16} In his third assignment of error, Messenger argues that his
convictions for Rape, Kidnapping, Felonious Assault and Domestic Violence were
against the manifest weight of the evidence. Specifically, Messenger argues that
testimony presented in the State’s case was not credible and that the jury clearly
lost its way in reaching its verdict.
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{¶17} When an appellate court analyzes a conviction under the manifest
weight standard, it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the factfinder “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. Andrews, 3d Dist. No. 1-05-70,
2006-Ohio-3764, ¶ 30, citing State v. Martin, 20 Ohio App.3d 172 (1983); State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 1997-
Ohio-355. Only in exceptional cases, where the evidence “weighs heavily against
the conviction,” should an appellate court overturn the trial court’s judgment. Id.
{¶18} Although the appellate court acts as a “thirteenth juror,” it still must
give due deference to the findings made by the fact-finder. State v. Thompson,
127 Ohio App.3d 511, 529 (1998). The fact-finder, being the jury, occupies a
superior position in determining credibility. Id. When examining witness
credibility, “[t]he choice between credible witnesses and their conflicting
testimony rests solely with the finder of fact and an appellate court may not
substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio
St.3d 120, 123 (1986). To reverse the judgment of a trial court on the weight of
the evidence based upon a jury’s verdict, a unanimous concurrence of all three
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judges on the reviewing panel is required. Thompkins, at paragraph four of the
syllabus.
{¶19} On appeal, Messenger contends his convictions for Kidnapping, two
counts of Rape, Felonious Assault, and two counts of Domestic Violence were
against the Manifest Weight of the Evidence. The statutes related to those charges
as indicted read:
KIDNAPPING
(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
***
(3) To terrorize, or to inflict serious physical harm on the victim or another;
R.C. 2905.01(A)(3).
RAPE
No 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).
FELONIOUS ASSAULT
(A) No person shall knowingly do either of the following:
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(1) Cause serious physical harm to another or to another's unborn;
R.C. 2903.11(A)(1).
DOMESTIC VIOLENCE
(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
R.C. 2919.25(A).
{¶20} As the charges arose out of incidents that occurred on different dates,
we have separated the testimony and evidence presented at trial below according
to the date in which the incident took place.
September 12, 2010
{¶21} Christi testified that on September 12, 2010 she was sitting in the
living room of the residence she shared with Messenger on Plymouth Street in
Marion playing a game on her phone while Messenger kept cussing at her so she
went into the bedroom and locked the door. (Tr. at 140). According to Christi,
Messenger then “busted” open the door and got on top of her and tried to make her
smoke a joint. (Tr. at 140). They ended up pulling each other’s hair and he
shoved her off the bed causing her to crack her head on the bed rail or on the table
beside the bed. (Tr. at 142).
{¶22} Christi testified that she tried to crawl away but Messenger shoved
her into a chair in the living room and said “bitch, you just fucking set (sic) there
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in that chair you stupid bitch, you ain’t going nowhere.” (Tr. at 142). Christi
testified that when Messenger turned away to go into the bathroom, she took off
running toward the neighbors’ house down the street to call the cops. (Tr. at 142).
{¶23} Christi ran to a house nearby, knocked on the door and asked to use
the phone. Kayla Lucas corroborated this in her testimony, affirming that Christi
came to her door crying and asked to use her phone. (Tr. at 361-62). Lucas
testified that she turned Christi away saying she did not have a phone. (Tr. at 361-
62). Lucas testified that though she could hear Christi crying, Lucas did not know
Christi and could not see her well so she turned her away. (Tr. at 361-62).
{¶24} Christi testified that after being turned away by Lucas she saw
Messenger and his son Brandon leaving the house so Christi went back into her
house, retrieved her cellular phone and called the police. (Tr. at 143). Sam
Rietschlin of the Marion City Police Department responded. (Tr. at 352).
Rietschlin testified that Christi was crying and that he took pictures of her injuries.
(Tr. at 354-55). Christi indicated to Rietschlin that some of her bruises were from
previous encounters with Messenger. (Tr. at 355). On cross examination
Rietschlin testified that he did not find any blood at the scene of the incident. (Tr.
at 358).
{¶25} Messenger testified that he and Christi did get into an argument on
September 12 that resulted in them pulling each other’s hair. (Tr. at 447). He
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further testified that they got into a physical altercation “every other day or two or
three days.” (Tr. at 447). According to Messenger, after the hair pulling, he left
the premises with his son and did not return that night. (Tr. at 448). Further,
Messenger testified that during the next couple of weeks he stayed with a friend of
his until he and Christi reconciled later that month. (Tr. at 449).
{¶26} As a result of the September 12 incident, Christi was awarded a TPO
against Messenger. Messenger testified that he was aware of the TPO. (Tr. at
449).
September 16, 2010 Incident
{¶27} Christi testified that on September 16, 2010, Messenger repeatedly
called her in violation of the terms of the TPO using a restricted phone number.
(Tr. at 144). Christi notified the police and Officer Clemons was dispatched to
take a statement. Clemons and Christi both testified that while Clemons was
present, Messenger called again. (Tr. at 144, 365). Clemons testified that he took
the phone and a man identifying himself as Messenger was “yelling, screaming,
ranting, making accusations about there being another man in the house.” (Tr. at
365). After Clemons identified himself as an officer, Messenger agreed to meet
Clemons at the police station for violating the TPO but Messenger never showed
up. (Tr. at 367).
October 5-6, 2010
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{¶28} Christi testified that on the night of October 5, 2010 she went to a bar
with Messenger called Wild Bill’s in Marion. (Tr. at 146). She testified that the
two got into an argument that continued when they returned home. (Tr. at 148).
Christi testified that after they returned home Messenger grabbed her and slammed
her on the floor causing her to hit the back of her head. (Tr. at 149). She testified
that Messenger then picked her up by her hair and slammed her down on her face
and jaw causing her to believe she broke her jaw. (Tr. at 149). Christi testified
that Messenger then carried her out to her Jeep against her will without any shoes
on and that Christi kicked at Messenger to try to prevent being put into the Jeep.
(Tr. at 150-51). According to Christi, Messenger repeatedly slammed the driver-
side door of the Jeep on Christi’s right foot. (Tr. at 151). Afterward Christi
testified that Messenger got into the Jeep and they traveled toward LaRue where
Messenger’s parents owned some property. (Tr. at 151).
{¶29} Christi testified the following occurred when they arrived at the
property in LaRue.
[Messenger] starts * * * running ruts and stuff in the cornfield and everything. Running around in a circle, then he slams on the brakes, * * * and he opens the door and he’s cussing at me again and he grabs a hold of me and throws me out onto the ground. And somehow, I don’t know how, I don’t know if my pants were loose or what, but my pants are like down halfway almost to my knees, so I’m laying there feeling butt naked and it’s cold and it’s dark and I’m scared to death. * * * I thought he was gonna like get back in the Jeep and run me over. That’s why I thought he threw me out. I didn’t know why. And then
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he’s telling me ‘shut the fuck up you stupid bitch”. (sic) I told him no, I told him he can go burn in hell and just leave me alone. He’s wanting me to get back in the Jeep after that. I’m like “no, go away and leave me alone and I’m crying. He gets out and he picks me back up and I thought he was gonna just throw me back in the Jeep. That’s not what he done. He bent me over and he started jamming his fingers and his thumb and kind of – I think that’s all it was, I’m not sure cause I couldn’t see. He starts jamming them in my vagina and mainly in my anal area. He did it probably eight to 10 or 15 times. And it hurt bad.
Q: Did you tell him?
A: It hurt bad. I was trying to get him to stop and I couldn’t, I couldn’t, it hurt – I have never had anything like that done to me in my life.
Q: Did you – I think did you ask him to stop?
A: Yeah, I was screaming at him to stop. He wouldn’t. I was trying to push him off of me and I couldn’t.
(Tr. at 152-53).
{¶30} According to Christi, Messenger then shoved her back into the Jeep
against her will, she “balled back up” and he took off again. (Tr. at 154). From
there Messenger took her to a house they had on Marsh Street in LaRue. (Tr. at
155-56). At the house on Marsh Street, Messenger told Christi that he ran the Jeep
out of gas and they had to get in his Ford Explorer. (Tr at 156). Messenger then
offered to get Christi gas, she declined saying she would not go anywhere with
him. (Tr. at 156). Christi testified that they remained at the Marsh Street
residence for maybe “an hour to two hours.” (Tr. at 156). Christi testified that at
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one point she tried to escape out of the window (the passenger side door was not
functional) but Messenger stopped her. (Tr. at 156). Christi testified that
Messenger eventually gave her the Jeep keys and said “okay bitch, here’s your
keys, fuck it, take it and go.” (Tr. at 156). From there Messenger exited the
vehicle and got into the Explorer. (Tr. at 156).
{¶31} Christi testified that Messenger then bumped her Jeep with the
Explorer, got out of the Explorer, pulled her out of the Jeep, dragged her into the
Explorer and drove off again down a country road. (Tr. at 159). According to
Christi, while driving down the country road, Messenger called her a “whore” and
a “bitch” and Christi was “begging” him to leave her alone and to quit. (Tr. at
159). Christi testified that on one country road Messenger stopped and told her to
get out of the Explorer, which she did. (Tr. at 160). Messenger then drove off up
the road but turned back and put her back into the Explorer. (Tr. at 160).
{¶32} Christi testified that next they drove to a Speedway to get gas and she
tried to get out but Messenger drove right through the Speedway without getting
out. (Tr at 161). From there, Christi testified that Messenger drove her around to
various locations until they ended up back in Delaware where Messenger had to
work on the morning of October 6. (Tr. at 162). Once Messenger exited the
vehicle at work, Christi testified that she got out and looked for help, running into
one of Messenger’s coworkers, Brian Criswell. (Tr. at 163).
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{¶33} Criswell testified that when he saw Christi she had no shoes on, there
was a tear in her jeans and she had swelling on her face. (Tr. at 215). Criswell
testified that Christi tried to dial a number on his cell phone but there was a
problem and she asked him to call 9-1-1 for her. (Tr at 223). On cross-
examination Criswell testified that Christi only tried to dial two numbers then
asked him to dial 9-1-1. (Tr. at 223). Christi and Criswell both testified that
Criswell’s supervisor told Christi she could not be in the area and made her leave.
(Tr. at 163). Christi testified that she made her way to a nearby United Dairy
Farmers and called 9-1-1. (Tr. at 164).
{¶34} Messenger was taken to Grady Memorial Hospital where she was
examined by Debra Virden, a Sexual Assault Nurse Examiner (“SANE”). Virden
testified that in her 25 years as a nurse, 15 as a SANE nurse, having handled
roughly 150-200 SANE examinations she had only seen perhaps four people with
injuries as extensive as Christi’s. (Tr. at 236, 274). Virden documented a
contusion on Christi’s face and various other red, blue, yellow and purple bruises
and abrasions on her body. (Tr. at 247). Virden observed a three centimeter red-
purplish bruise around Christi’s anal cavity and a red tear in Christi’s vaginal
cavity that was about “an eighth of an inch.” (Tr. at 247, 251). The State entered
pictures of the bruising into evidence along with the documents from Grady
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Memorial Hospital. (State’s Ex’s 15a-15n, 1). Virden testified that the injuries
she found were consistent with the story Christi told her. (Tr. at 298).
{¶35} On cross-examination of Virden, Virden testified that she was unable
to date the vaginal tear and that the injuries could also have resulted from
consensual sex. (Tr. at 289-294). Virden further testified that the bruises were
different colors and some indicated they were several days old while others
indicated they were fresh. (Tr. at 284-286).
{¶36} Andrew Isom of the Marion City Police Department was dispatched
to Grady Hospital to speak with Christi. (Tr. at 304). Isom observed her injuries
and took her statement. (Tr. at 308-310). Isom also took pictures which he
identified and were entered into evidence at trial. (Tr. at 311).
{¶37} Natalie Saracco of the Bureau of Criminal Identification and
Investigation tested samples collected by Nurse Virden and testified as to the
results of samples taken. (Tr. at 327). Saracco testified that the results from the
vaginal swab identified semen and showed a presumptive positive for the presence
of blood. (Tr. at 331). The results from the underwear sample showed a
presumptive positive for blood, semen, and amylase.3 (Tr. at 331). The results
from the anal samples did not test presumptive positive for semen. (Tr. at 331).
3 According to testimony at trial, amylase is a component of saliva, urine, and sweat. (Tr. at 332).
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The results from the pubic/anal area tested presumptive positive for blood and
semen. (Tr. at 332).
{¶38} Tim Rowe, a Police Officer for the City of Marion visited the house
in Marion and testified that he found a trash can was knocked over, there were tire
tracks, and it looked as if someone left in a hurry. (Tr. at 343). Rowe did admit
on cross-examination that there were no blood stains or hair that he noticed in the
home and that he did not know how anything was knocked over. (Tr. at 345-46).
{¶39} Bob Peterson, an investigator with the County Prosecutor’s Office,
photographed the bruising on Christi’s foot on October 13, 2010, a week after the
incident. (Tr. at 347). He testified to taking the photographs and those
photographs were introduced into evidence.
{¶40} Patrolman Electa Foster went to the home of Christi and Messenger
and testified that she found the back door wide open and that she observed some
cigarette butts on the floor of the living room. (Tr. at 380-82). On cross-
examination Foster testified that she found no blood in any of the vehicles or at the
home. (Tr. at 408). At trial Foster identified a surveillance video from Speedway
depicting an Explorer pulling into the Speedway, pausing near the gas pumps, then
driving off seconds later without anyone getting out. (Tr. at 376). Foster also
testified at trial regarding the cycle of domestic violence. (Tr. at 371-75).
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{¶41} After the State presented the foregoing testimony related to the
October 5-6 incident, the State rested its case. Messenger then took the stand in
his own defense, and testified that he and Christi did travel to the places as Christi
said, but he testified that he did not slam her face in the ground, he did not slam
her foot in the Jeep door, he did not digitally rape her, and he did not hold her
against her will. Messenger testified that Christi came with him willingly and he
did not hit her. Furthermore, Messenger testified to an alternative explanation as
to how Christi received her injuries.
{¶42} According to Messenger, upon returning home from Wild Bill’s
Christi was very intoxicated and fell getting out of the Jeep hitting her jaw on the
Jeep’s tire. (Tr. at 463). Then, Messenger testified, shortly after they went inside,
they got into an argument where Messenger informed Christi that he was filing for
divorce and Christi smacked him. (Tr. at 466).
{¶43} Messenger testified that he grabbed some clothes to leave and started
to take them out to the Jeep and while he was taking the clothes out, Christi was in
his way and walking backwards. (Tr. at 466-67). Messenger testified that she fell
backward into the recliner then into the cigarette rolling machine, landing on her
back and buttocks likely causing the bruising she had. (Tr. at 467, 504-05).
Messenger testified that during one of his trips out of the house with the clothes,
he stepped on Christi’s foot which would account for the bruising. (Tr. at 467).
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{¶44} Messenger testified that Christi went willingly with him when he
left, and that Christi’s pants were down at the property in LaRue because she had
to urinate. (Tr. at 467-69). Messenger denied raping her and testified that they
had had consensual sex “everyday” between September 28, 2010 and October 5,
2010. (Tr. at 453). According to Messenger, he and Christi frequently had sex
including anal sex. (Tr. at 451). Furthermore, Messenger testified that Christi
wanted to engage in “weird” sexual activity that he had never done to any other
woman. (Tr. at 452). This included suffocation with a pillow. (Tr. at 452).
{¶45} Messenger testified that after Christi urinated at the LaRue property
the two smoked crack cocaine together and then eventually left the property. (Tr.
at 470). Messenger testified that at no point was he holding Christi against her
will and that Christi simply got out of the Explorer when he went to work the next
morning. (Tr. at 480). Messenger also testified that he personally asked Criswell
to take Christi home. (Tr. at 480). Criswell corroborated that such a conversation
took place, but Criswell testified it was over the phone rather than in person. (Tr.
at 224-25).
Analysis
{¶46} Rather than argue that there was insufficient evidence to support his
convictions, Messenger contends that the greater amount of credible evidence
weighed against his conviction. Although Messenger provides some alternate
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explanations for the incidents and injuries of Christi, there still was a significant
amount of testimony accompanied by a multitude of photographs entered into
evidence which a jury could have properly weighed in favor of Christi and thus
convicted Messenger of the charges against him beyond a reasonable doubt.
Christi’s testimony was largely corroborated by Nurse Virden or various police
officers. Though the witnesses were unable to say definitively that the injuries and
evidence occurred precisely the way Christi said they did, the witnesses did testify
that the injuries and evidence were consistent with her story. Accordingly, we
cannot find that the jury “clearly lost its way” or that Messenger’s convictions for
two counts of Rape, one count of Kidnapping, one count of Felonious Assault, and
two counts of Domestic Violence were against the manifest weight of the
evidence.
{¶47} Appellant’s third assignment of error is overruled.
First Assignment of Error
{¶48} In Messenger’s first assignment of error, he argues that the trial court
erred in allowing a police officer to give opinion evidence on battered woman’s
syndrome. Specifically Messenger contends that under the Ohio Supreme Court’s
holding in State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, the testimony of
Patrolman Electa Foster went beyond admissible testimony related to battered-
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woman’s syndrome and into the realm of impermissible opinion testimony as to
Christi’s credibility thereby warranting reversal.
{¶49} At the outset we note that Messenger did not object to the
purportedly impermissible testimony of Foster at trial that he now argues is
prejudicial, and thus the trial court did not have the opportunity to address this
issue. Therefore, the matter will be addressed using a plain error standard. State
v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325. Plain error requires proving that,
“but for the [trial court’s] error, the outcome of the trial clearly would have been
otherwise.” (Emphasis in original.) Id. at ¶ 50 quoting State v. Long, 53 Ohio
St.2d 91, paragraph two of the syllabus.
{¶50} At trial, after Christi had been cross-examined about getting back
together with Messenger despite the previous incidents of violence and the TPO,
the State called Patrolman Electa Foster of the Marion Police Department. Foster
worked for the Marion police department for 20 years and she spent 12 of those
years as the Violence Against Women Officer where she handled domestic
violence and sex offense investigations. (Tr. at 370). Foster testified that during
those 12 years she was involved with “thousands” of domestic violence cases and
hundreds of sexual assault cases. (Tr. at 371). Foster also testified that she had
attended 28 training sessions over those 12 years both in and out of state related to
domestic violence and sexual assault. (Tr. at 371).
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{¶51} After covering her background, Foster provided testimony regarding
the cycle of domestic violence and testified that she heard Christi testify about
reconciling with Messenger after the earlier assault incident. (Tr. at 373-75). The
following exchange then took place between the State and Foster.
Q: [STATE] So for example, in this case we have the June assault, then a September 12th domestic violence incident that’s before this jury that Officer Rietschlin investigated, the October (sic) 16th, 2010 TPO violation that’s before this jury that Officer Clemons investigated, and then here we have apparently October 6th and she’s willing to go to – apparently willing to go to Wild Bill’s with this guy and shoot pool. Does that make any sense to you?
A: [PATROLMAN ELECTA FOSTER] It doesn’t make sense, but with my training that’s what I see. It’s very, very common in these relationships.
(Tr. at 375).
{¶52} Messenger argues that during this exchange, Foster’s reference to
“these relationships” groups Messenger and Christi’s relationship into one of a
repeated cycle of domestic violence. Messenger contends that Foster’s testimony
goes beyond the bounds of what is permissible pursuant to Haines by stating that
Messenger was a batterer.
{¶53} When taking the testimony of Foster in context, we find that Foster is
merely testifying to her experience as a police officer, not that she personally
believes the victim or that she is affirming that Messenger is an abuser. Foster is
simply making a broad statement that based upon her training and experience, it is
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not uncommon to see people reconcile in these situations. As such, Foster’s
testimony was properly admissible based solely on her experience as a police
officer without reference to any expertise or opinion as to the “battered-woman
syndrome.” Therefore, we find that Messenger’s argument is without merit.
{¶54} Accordingly, Messenger’s first assignment of error is overruled.
Second Assignment of Error
{¶55} In Messenger’s second assignment of error, he claims that he was
denied his right to effective assistance of counsel. Specifically, Messenger claims
that his trial counsel was ineffective for failing to object to several segments of
evidence and testimony that cumulatively were prejudicial.
{¶56} “Reversal of convictions on ineffective assistance requires the
defendant to show ‘first that counsel’s performance was deficient and, second that
the deficient performance prejudiced the defense so as to deprive the defendant of
a fair trial.’” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751 at ¶105 quoting
Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052 (1984). When
considering a claim of ineffective assistance of counsel, the court “must indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689.
{¶57} A tactical decision by trial counsel, who as a licensed attorney is
presumed to be competent, is not by itself enough to show ineffective assistance of
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counsel simply because the strategy did not result in an acquittal. State v. Clayton,
62 Ohio St.2d 45, 48-49 (1980); State v. Timm, 3d Dist. No. 13-11-23, 2012-Ohio-
410, ¶ 31. “Furthermore, trial counsel’s failure to object is generally viewed as
trial strategy and does not establish ineffective assistance.” State v. Turks, 3d.
Dist. No. 1-08-44, 2009-Ohio-1837, ¶ 43, citing State v. McKinney, 11th Dist. No.
2007-T-0004, 2008-Ohio-3256, ¶ 191; State v. Gumm, 73 Ohio St.3d 413, 428;
State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 103.
{¶58} Among some thirty arguments that Messenger raises in an attempt to
illustrate ineffective assistance of counsel the vast majority relate to decisions that
fall under “trial strategy.” As such we find that the decisions of trial counsel not
to object to specific testimony fail to establish any deficiency.
{¶59} Examples of failure to object complained of by Messenger include:
that trial counsel erred by not objecting to testimony by Christi of a domestic
violence incident occurring June 29, 2010 not at issue in this case, that trial
counsel erred by not objecting to testimony of Christi that abuse began three
months into the marriage, that trial counsel erred by not objecting to testimony of
Christi that she thought Messenger was trying to kill her, and that trial counsel
erred by not objecting to testimony of Christi that Messenger abused her daily or
every other day.
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{¶60} Messenger also argues that trial counsel erred by not objecting to
testimony of Christi on trial counsel’s cross-examination when Christi was
unresponsive to the questions and offered testimony such as Messenger having
charges filed against him relating to his daughters, Messenger being sent to jail,
Messenger purposely taking off the roof of the LaRue residence, Messenger
grabbing Christi and slamming her to the floor, Christi saying she was in fear of
Messenger, Christi saying Messenger would abuse her like he always did, and
Christi screaming rather than blowing the horn.
{¶61} Messenger also complains of trial counsels’ failure to object to Nurse
Virden’s medical testimony regarding blunt force trauma, Nurse Virden’s
testimony that Christi’s bruises were consistent with Messenger holding her,
Nurse Virden’s testimony about whether the injuries could have caused serious
harm or death, Nurse Virden’s testimony of Christi’s history, Nurse Virden’s
testimony that Christi informed her there were threats of homicide, and testimony
by Nurse Virden as to the extent of the injuries relative to other cases.
{¶62} Additionally, Messenger complains of trial counsel not objecting to
Officer Isom’s testimony that Christi’s foot injury was consistent with being
slammed in a door and that her injury was consistent with her history; Officer
Rowe’s testimony regarding tire tracks and a trash can being knocked over in the
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home, and Officer Rietschlin’s testimony to injuries occurring before September
12.
{¶63} Messenger also complains that trial counsel elected not to request a
Daubert hearing for Nurse Virden, Natalie Saracco, and Officer Foster. However,
Nurse Virden provided medical testimony helpful to Messenger in that some of the
bruises including one on the anus were older indicating potentially consensual
sexual activity as Messenger argued. Furthermore Natalie Saracco’s testimony
could arguably have been beneficial to Messenger in that it reaffirmed that
Messenger and Christi had had consensual sex so recently prior to this incident
that semen was still present. And as discussed under the first assignment of error,
Officer Foster’s testimony did not rise to any level of scientific expertise beyond
her experience as a police officer, thus providing no basis for a Daubert hearing.
{¶64} In sum, all of the foregoing testimony was successfully utilized by
trial counsel as consistent with non-culpable explanations offered by Messenger or
as indicative of vindictive motive on the part of Christi or otherwise impeaching of
Christi’s credibility, and thus are all consistent with effective trial strategy.
{¶65} Messenger next argues that trial counsel was ineffective for failing to
object to the State’s closing argument and the State’s rebuttal closing argument on
the basis of alleged improper references of the Prosecutor. The test regarding
prosecutorial misconduct during closing arguments is whether the remarks were
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improper and, if so, whether they prejudicially affected the substantial rights of the
defendant. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 231. “In making
this determination, an appellate court should consider several factors: (1) the
nature of the remarks, (2) whether an objection was made by counsel, (3) whether
corrective instructions were given by the court, and (4) the strength of the
evidence against the defendant.” State v. Braxton, 102 Ohio App.3d 28, 41 (8th
Dist. 1995). “The touchstone of the analysis ‘is the fairness of the trial, not the
culpability of the prosecutor.’” Davis, supra, at ¶ 231 quoting Smith v. Phillips,
455 U.S. 209, 219, 102 S.Ct. 940 (1982). Prosecutorial misconduct is generally
not grounds for reversal unless it so taints the proceedings as to deprive the
defendant of a fair trial. State v. Johns, 3d. Dist. No. 13-04-23, 13-04-24, 13-04-
25, 2005-Ohio-1694, ¶ 25.
{¶66} Messenger first claims that trial counsel was ineffective for failing to
object to a statement made by the State in closing argument regarding the events
between Messenger and Christi at the Delaware post office. The statement at issue
was made during the following section of the State’s closing argument.
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[Messenger]’s toying with her. He’s terrorizing her. He’s controlling her. That’s what he wants to do. “I’m in charge. You’ll get out when I tell you to get out. You’ll get in when I tell you to get in”.
Go to the post office, unfortunately they don’t have any video, we checked. Officer Foster checked, but we didn’t have it. But then he leaves in the truck and they go to Speedway. And what did she tell them? What did she tell them the very next day within two hours from making the 9-1-1 call? “He went through Speedway and he was gonna stop and I saw him start to get out so I tried to get out, he saw it and grabbed me and we took off again.”
**
The video, State’s Exhibit 8, of Speedway further corroborates what she had to say. She told it right away and it corroborates it.
(Emphasis Added.) (Tr. at 561-62).
{¶67} Messenger specifically objects to the italicized portion of the closing
argument claiming, correctly, that Officer Foster never testified to checking for
video of Christi and Messenger at the post office. The State’s comment at issue
came in the context of describing how various pieces of evidence were consistent
with Christi’s version of events. The State mentioned how it did not have video of
the post office but stated that it did have video from Speedway that was consistent
with Christi’s story of what occurred at the Speedway. The Speedway video was
identified by Officer Foster. No testimony was ever given that Officer Foster
checked for video of anything that occurred at the post office.
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{¶68} While we find that the specific comment in question was indeed
improper as Officer Foster never testified that she checked for video at the post
office, we do not find that this statement so “tainted” the trial as to merit reversal.
A reference in passing to evidence that the State admits does not exist, without
more, is insufficient to satisfy the standards above for prosecutorial misconduct.
Furthermore, as the reference is insufficient to show prosecutorial misconduct, it is
insufficient to establish ineffective assistance of counsel due to Messenger’s
inability to establish prejudice.
{¶69} Messenger next argues that his trial counsel was ineffective for
failing to object to an inappropriate comment made by the State in the State’s
rebuttal closing argument. In Messenger’s closing argument he raised the point
that there was no blood located in either of the vehicles that Christi and Messenger
were in on the night of October 5-6, 2010 and that there was no blood located in
the home where the violence began. (Tr. at 582-83). Then, in the State’s rebuttal
closing argument, the State made the following statement.
Well, as you saw most of the injuries are blunt force from bruising and so forth. They’re just not cuts. However, there was blood found on the underwear. There was blood found in the vagina. * * * And I would submit to you that abusers many times don’t want to leave injuries readily seen or cuts like that. Even though with her he’s still again, look at the pictures, look at the different times of the pictures and look at all the bruising.
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(Emphasis added.) (Tr. at 592). Messenger specifically objects to the italicized
comment, arguing that no such evidence was presented at trial as to the pattern of
conduct of abusers and that any opinion by the prosecutor concerning such
evidence was objectionable.
{¶70} Based upon the context of the italicized statement at issue and the
evidence produced at trial discussed at length above, we find this statement of the
Prosecutor during his rebuttal closing argument to be more in the nature of an
argument made in response to an argument raised by defense counsel, rather than
an improper assertion of fact not based upon evidence. Nevertheless, even
assuming arguendo the comment was improper, we do not find that it so tainted
the trial as to merit reversal or that failure of counsel to object prejudiced
Messenger sufficiently to establish a valid claim of ineffective assistance of
counsel.
{¶71} As a final aspect of Messenger’s claim for ineffective assistance of
counsel, he argues that all of the above matters constitute, in the aggregate,
support for a cumulative finding of ineffective assistance of trial counsel.
However, since we have found no prejudicial ineffective assistance of counsel on
any of the instances, a cumulative argument is not supported. Accordingly
Messenger’s second assignment of error is overruled.
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{¶72} For the foregoing reasons, Messenger’s assignments of error are
overruled and the judgment of the trial court is affirmed.
WILLAMOWSKI, J., concurs. ROGERS, J., concurs in Judgment Only.
/jlr
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