State v. O'Boyle

2024 Ohio 5480

• Court: Ohio Court of Appeals
• Decided: November 21, 2024
• Docket: 113577
• Status: Published

Opinion

[Cite as State v. O'Boyle, 2024-Ohio-5480.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff- Appellee, : No. 113577 v. :

DAVID O’BOYLE, :

Defendant-Appellant. :

_______________________________________

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 21, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-679521-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Karen Greene, Assistant Prosecuting Attorney, for appellee.

Mary Catherine Corrigan, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant David O’Boyle appeals his conviction for rape.

Because we do not find O’Boyle suffered ineffective assistance of trial counsel and do not find that his conviction was against the manifest weight of the evidence, we

affirm O’Boyle’s conviction.

PROCEDURAL HISTORY AND RELEVANT FACTS

Procedural History

O’Boyle was indicted on April 3, 2023. The indictment alleged one

count of rape against the victim, M.O., in violation of R.C. 2907.02(A)(2) occurring

on or about December 19-20, 2022. It also alleged three counts of rape against the

victim, C.O., in violation of R.C. 2907.02 (A)(1)(b). On December 11, 2023, having

waived his right to a jury trial, the trial court heard the case. On December 13, 2023,

the State dismissed one of the rape counts pertaining to C.O. In rendering its

verdict, the trial court found O’Boyle not guilty of the other two counts pertaining to

C.O. The trial court found O’Boyle guilty of the rape of M.O. On December 28, 2023,

the trial court sentenced O’Boyle to a term of imprisonment of 10 to 15 years and

found him to be a Tier III sex offender.

Trial Proceedings and Testimony

At trial, 27-year-old C.O. testified that O’Boyle was her father and she

had a brother and a younger sister, M.O. C.O. was 13 years old when M.O. was born.

C.O. testified that O’Boyle physically and sexually abused her multiple times

between the years 2002-2007. She testified that she never told her younger sister

M.O. of the sexual abuse, but in 2022 did tell her mother of the sexual abuse. She

said she was scared to go to the police. Fourteen-year-old M.O. testified at trial. She testified on direct

examination that she lived with her father and D.O., her brother, in 2022 when she

was 13 years old. She said O’Boyle raped her before Christmas while she was on

winter break. She described the incident by stating she was in the hallway. He

grabbed her wrist, took her to his room, put her on the foot of his bed, removed her

pants and underwear, and put his penis into her vagina. He moved back and forth,

but did not ejaculate.

M.O. testified that at the time of the rape, D.O. was at work. She said

that when school resumed after the winter break, she told a friend what happened.

On March 6, 2023, M.O.’s friend told school authorities and M.O. was questioned at

school. M.O. testified that she told school staff that it was her stepfather who abused

her, not O’Boyle, because she lived with O’Boyle. She explained that she named her

stepfather so she could leave school, go home, pack a bag, and go to her friend’s

home. M.O. planned to the tell the police the whole truth. When M.O. was released

from school, she went to her friend’s house and her friend’s mother, J.M., took her

to the police station. C.O. went to the police station with them.

During cross-examination, M.O. testified that she remembered the

date of the rape was December 19. She was also asked about making the allegation

against her stepfather, and the State did not object. When trial counsel asked about

another man, Adam, the State objected. The trial court then warned trial counsel to

not ask about material that would fall under the Rape Shield Law. J.M. testified her daughter’s friend was having trouble and needed

help. She was questioned about whether M.O. and C.O. talked about what to tell the

police. J.M. said they did not tell each other what to say or conform their stories.

After they left the police station, M.O. stayed at J.M.’s house.

O’Boyle called Amanda Prok, principal of M.O.’s school. Prok

testified that the school learned about the allegations from M.O.’s friend. M.O.

accused her stepfather, and Prok permitted M.O. to go home. Prok notified

Cuyahoga County Department of Children and Family Services (“CCDCFS”)

regarding M.O.’s disclosure. Ada Jackson, a CCDCFS social worker, testified M.O.’s

allegations were investigated and determined to be “indicated.” Trial counsel was

prohibited from asking about other boys that caused Prok concern with M.O.

In his defense, O’Boyle also called his son, D.O., his ex-wife L.J.,

Brook Park Police Detective Klemenec, and his friend David Vahlber as witnesses.

D.O. testified he was close with his sister and did not notice anything different about

her behavior in the months following the alleged sexual assault. He also testified

that in 2022, he would leave for work between 1:30 a.m. and 2:00 a.m. L.J. testified

she did not remember getting a message from C.O. regarding C.O.’s allegations.

Detective Klemenec testified that when M.O. was interviewed, C.O. was present but

that C.O. did not disclose she was also sexually assaulted and he did not sense that

C.O. was coaching M.O. He also testified that C.O. was interviewed on a later date.

Vahlber testified he knew O’Boyle for years and had been around him and his family

and never sensed anything was amiss. O’Boyle testified at trial and denied that he would ever sexually abuse

his daughters. He admitted to using a belt to discipline his son and C.O. As to

allegations of abuse, he testified he heard from the police about M.O.’s allegations

in March 2023. Sometime in the summer of 2022, L.J. told him C.O. made an

allegation against him. O’Boyle denied sexually abusing either C.O. or M.O.

Hearing on Motion for New Trial

Following trial, O’Boyle’s counsel filed a motion for new trial alleging

several errors, including his inability to file an alibi before trial because he was

unaware M.O. would specify the rape occurred on December 19, 2022, during her

testimony.1 The trial court held a hearing on the motion, and trial counsel stated

that because the indictment alleged a range of dates, he could not have prepared an

alibi defense prior to trial. Trial counsel stated that after trial, he interviewed

witnesses who would testify that O’Boyle was on a hunting trip on December 19,

2022. The State noted that trial counsel brought up the hunting trip at the final

pretrial but did not go forward with an alibi defense.

The trial court noted it was “suspect” that the alibi witnesses

determined the dates of the hunting trip only after M.O. testified. The trial court

denied the motion for new trial and found that as to any surprise, “the only thing

1 In this appeal, O’Boyle does not address the other grounds for relief raised within the

motion for new trial. that really has been raised by defense counsel is that he wanted more time to

question [M.O.’s] credibility.”

LAW AND ARGUMENT

The Record Does Not Demonstrate Ineffective Assistance of Counsel

O’Boyle’s first, second, and third assignments of error allege that his

trial counsel was ineffective. They read:

1. Trial counsel was ineffective for failing to preserve and present an alibi defense.

2. Trial counsel was ineffective for failing to question [D.O.] on whether M.O. was at the home on the day of the alleged incident.

3. Trial counsel was ineffective for failing to proffer the testimony he was prohibited by the rape shield laws from eliciting into the record.

Within the first assignment of error, he argues trial counsel had an

alibi defense and failed to give proper notice to the State or present that defense at

trial. Within the second assignment of error, he argues counsel was ineffective for

failing to ask D.O. whether M.O. was at the house on the date she testified the rape

occurred. Within the third assignment of error, O’Boyle argues that trial counsel

failed to proffer evidence not allowed by the trial court pursuant to the Rape Shield

Law.

Our review of counsel’s performance is highly deferential. State v.

Korecky, 2020-Ohio-797, ¶ 20 (8th Dist.). And because we presume licensed

attorneys are competent, the party claiming ineffective assistance of counsel bears the burden of proving counsel’s ineffectiveness. Id., citing State v. Smith, 17 Ohio

St.3d 98 (1985).

In order to show ineffective assistance of counsel, a defendant must

demonstrate trial counsel’s performance was both below an objective standard of

reasonable representation and that he suffered prejudiced by counsel’s deficient

performance. State v. McGee, 2022-Ohio-2045, ¶ 32 (8th Dist.), citing State v.

Drummond, 2006-Ohio-5084, ¶ 205, citing Strickland v. Washington, 466 U.S.

668 (1984). Prejudice will be established if the defendant can demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland at 694.

Trial counsel’s tactical decisions and trial strategy do not form a basis

for a claim of ineffective counsel. State v. Black, 2019-Ohio-4977, ¶ 35 (8th Dist.)

“It is generally presumed that the tactical decision of calling or refusing to call

witnesses will not sustain a claim of ineffective assistance of counsel.” State v.

Williams, 2009-Ohio-2026, ¶ 60 (8th Dist.); State v. Yeager, 1994 Ohio App. LEXIS

2433, *4 (9th Dist. June 1, 1994) (“The decision to present evidence, alibi or

otherwise, is a trial tactic.”).

O’Boyle argues that trial counsel had the ability to discredit M.O.’s

testimony through an alibi defense and by having D.O. testify M.O. was not at home

on December 19, 2022. Further, he alleges trial counsel did not proffer any evidence

of prior allegations by M.O. He argues that had trial counsel pursued these strategies at trial, the trial court would have acquitted him. The State argues that

counsel was not ineffective and OBoyle has not shown the outcome of trial would

have been different.

The indictment alleged that the rape of M.O. occurred between

December 19-20, 2022. Trial counsel was aware of the dates in the indictment and

was aware of an alibi defense prior to trial. The indictment presented a relatively

narrow window of time; as such trial counsel could have presented an alibi defense,

but chose not to. Given this, we cannot say that trial counsel’s decision to not pursue

a specific alibi defense at trial was anything but a tactical one.

At best, the alibi evidence through witness testimony simply

contradicted M.O.’s testimony. We also note that it was only after O’Boyle was

convicted did trial counsel decide to bring forth evidence of an alibi. Because of the

timing of when the alibi evidence was presented to the trial court, we cannot say it

would have altered the outcome of O’Boyle’s bench trial, especially in light of the

trial court’s finding that the timing of the witnesses’ ability to determine the dates of

the hunting trip was “a little suspect.”

As to the failure to proffer evidence barred by the Rape Shield Law,

R.C. 2907.02 (D), which prohibits introduction of “evidence of specific instances of

the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and

reputation evidence of the victim’s sexual activity,” we cannot find trial counsel was

ineffective. We cannot speculate on the evidence that counsel would have proffered,

if any. State v. Fisher, 2020-Ohio-670, ¶ 22 (8th Dist.) (“[W]hen a defendant bases a claim of ineffective assistance of counsel on evidence outside of the record,

postconviction relief rather than direct appeal is the proper vehicle to raise such a

claim.”). Accordingly, without a record of what evidence trial counsel may have been

prohibited from soliciting at trial that was prohibited under R.C. 2907.02(D), we

cannot find ineffective assistance of counsel.

The first, second, and third assignments of error are overruled.

The Conviction Is Not Against the Manifest Weight of the Evidence

O’Boyle’s fourth assignment of error reads

4. The guilty verdict cannot be upheld because the evidence and testimony presented at trial did not establish the Appellant’s guilt beyond a reasonable doubt.

Within the fourth assignment of error, O’Boyle argues that his

conviction was against the manifest weight of the evidence. He argues that M.O.’s

testimony was incredible because her testimony was uncorroborated, M.O. delayed

disclosure of the rape and initially named another perpetrator, and her brother did

not sense any issues between M.O. and O’Boyle. The State argues that M.O.’s

testimony was credible and O’Boyle has not demonstrated a manifest injustice

occurred.

A manifest weight challenge to a conviction asserts that the State has

not met its burden of persuasion in obtaining the conviction. Thompkins, 78 Ohio

St.3d 380, 390. A challenge alleging a conviction is against the manifest weight of

the evidence raises factual issues and our review is as follows: “The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”

Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). “Sitting

as the ‘thirteenth juror,’ the court of appeals considers whether the evidence should

be believed and may overturn a verdict if it disagrees with the trier of fact’s

conclusion.” State v. Jordan, 2023-Ohio-3800, ¶ 17.

Ohio courts consistently hold that a victim’s testimony alone is

sufficient to support a rape conviction. State v. Smith, 2023-Ohio-1670, ¶ 20 (8th

Dist.); State v. Roan, 2020-Ohio- 5179, ¶ 21 (8th Dist.); State v. Blankenship, 2001

Ohio App. LEXIS 5520, *11 (8th Dist. Dec. 13, 2001). “There is no requirement that

a rape victim’s testimony be corroborated precedent to conviction.” Roan, 2020-

Ohio- 5179, ¶ 21.

O’Boyle’s arguments go to M.O.’s credibility. At trial, M.O. explained

the rape in detail. She also explained why she initially told school officials her

stepfather perpetrated the crime. This court has recognized that sexual assault

victims’ reactions vary and a victim’s normal behavior following a crime and delayed

disclosure does not mean that a reasonable trier of fact lost its way in finding

defendant guilty. State v. Harris, 2018-Ohio-578, ¶ 53 (8th Dist.) As such, we

cannot say the evidence at trial does not indicate that M.O.’s testimony was wholly incredible and O’Boyle has failed to show that this is the type of “exceptional case”

where the factfinder clearly lost its way.

The fourth assignment of error is overruled.

CONCLUSION

O’Boyle did not demonstrate that he received ineffective assistance of

counsel at trial where the record indicates the decision to not present an alibi

defense was a tactical one and it does not show the outcome at trial would have been

different had the alibi defense been presented. O’Boyle’s complaint that counsel was

ineffective for failing to proffer evidence cannot be evaluated where this court would

have to speculate as to the content of the evidence.

The conviction for rape was not against the weight of the evidence. In

this case, the victim was able to describe the crime that occurred and explain her

actions in naming a different man as the perpetrator of the rape and we cannot say

that her testimony was incredible or the trial court lost its way in finding O’Boyle

guilty.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

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

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

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_________________________ MICHELLE J. SHEEHAN, JUDGE

EILEEN A. GALLAGHER, P.J., CONCURS; FRANK DANIEL CELEBREZZE, III, J., CONCURS (WITH SEPARATE OPINION)

FRANK DANIEL CELEBREZZE, III, J., CONCURRING:

I agree entirely with the opinion and resolution of the assignments of

error. I write separately to express my dismay that appellant was not also convicted

of raping C.O.

C.O. testified in open court, under oath, that when she was a child,

appellant had physically and sexually abused her. She stated that she was under ten

years old when the abuse occurred and that her youngest memories were from when

she was in kindergarten or first grade. She particularly recollected two specific

instances of appellant putting his penis in her vagina. In recounting these incidents,

C.O. specifically described the positions of her and appellant’s bodies and stated that

they were on a mattress in one of the bedrooms.

C.O. testified that when she got older, she told her therapist, sexual

partners, and good friends about the abuse that she had endured; however, her

accusations against appellant were not reported to police until approximately 20

years after they were alleged to have occurred. There are many reasons for a delayed

disclosure like this, and such a delay should not be an impediment to obtaining a conviction. “A delayed disclosure of sexual misconduct by a minor victim does not

render a conviction against the manifest weight of the evidence.” State v. Peterson,

2024-Ohio-2903, ¶ 20 (8th Dist.), citing State v. Harris, 2018-Ohio-578, ¶ 53 (8th

Dist.).

It is clear, here, that C.O. finally reported what happened to her as a

child because she had learned that M.O. had suffered the same abuse. She testified

that she had not told M.O. about her experience at the hands of her father, but as

she listened to M.O.’s statement at the police station, the sexual abuse sounded

“more or less the same” as how she had experienced it. She did not say anything at

the time but returned to the police station one week later to report what had

happened to her as a child.

I am a father and a grandfather and have been a jurist at both the trial

court and appellate levels. In my lengthy career, I have seen far too many cases

involving sex offenses against children, but the most difficult ones are those

involving a biological parent. It is obvious that what C.O. experienced as a child has

had a significant impact on her life. I commend C.O. (and, of course, M.O.) for her

bravery throughout this matter and hope she is able to overcome her experiences

and continue forward with her life.