[Cite as State v. Prophet, 2023-Ohio-3833.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-22-024
Appellee Trial Court No. 21CR85
v.
Malcolm Prophet DECISION AND JUDGMENT
Appellant Decided: October 20, 2023
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.
Tyler Naud Jechura, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from an October 17, 2022 judgment of the Sandusky
County Court of Common Pleas, finding appellant guilty on one count of attempted gross
sexual imposition, in violation of R.C. 2907.05 and 2923.02, a felony of the fourth
degree. For the reasons set forth below, this court affirms the judgment of the trial court. {¶ 2} Appellant, Malcolm Prophet, sets forth the following two assignments of
error:
I. [APPELLANT] RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN DEFENSE COUNSEL FORGOT TO SUBPOENA A
CRITICAL WITNESS FOR TRIAL.
II. THE TRIAL COURT ERRED WHEN, AFTER LEARNING OF
DEFENSE COUNSEL[’]S CONDUCT, IT FAILED TO GRANT A
MISTRIAL.
{¶ 3} The following undisputed facts are relevant to this appeal. On December 17,
2020, appellant joined his cousin’s family for dinner at their residence in Clyde, Ohio.
Following dinner, appellant’s cousin and his fiancée were in the kitchen, performing
cleanup duties, while appellant was in the adjacent living room, alone with the couple’s
three-year-old daughter.
{¶ 4} Upon looking out into the living room to check on their daughter, her
parents observed appellant seated immediately adjacent to her, his pants pulled down, his
penis exposed, actively engaged in masturbation. In response, the girl’s mother ran into
the living room, screamed at appellant, scooped up her daughter, and took her out of the
room. Appellant said nothing and quickly pulled up his pants.
{¶ 5} The victim’s mother then yelled to her fiancé, the victim’s father, that she
wanted appellant out of their home at once. Thereafter, they drove appellant, who did not
2. have an automobile, back to the residence in Sandusky where he was staying at the time
of this incident. After transporting appellant back to Sandusky, they drove back to Clyde,
went directly to the Clyde police department, and reported the incident to the police.
{¶ 6} Several days after the victim’s parents reported the incident to the police,
thereby triggering a police investigation, appellant called the victim’s father. When he
declined to answer appellant’s call, appellant then messaged him on Facebook messenger
and accused him of causing him to lose his job as a consequence of the incident being
reported and triggering an investigation.
{¶ 7} In response to being blamed for appellant losing his job, the victim’s father
messaged appellant, “How could I [be responsible for appellant losing his job] when you
were the one who pulled your dick out in front of my daughter[?]” (Emphasis added).
{¶ 8} In turn, appellant messaged back an acknowledgement of the incident,
stating, “I can technically marry her [his cousin’s three-year-old niece] * * * that’s the
only reason I did that [masturbated in front of her] wtf [cousin].” (Emphasis added).
{¶ 9} On February 5, 2021, following the police investigation, appellant was
indicted on one count of gross sexual imposition, in violation of R.C. 2907.05, a felony of
the third degree. R.C. 2907.05 (A)(4) establishes that, “No person shall have sexual
contact with another, not the spouse of the offender * * * when * * * the other person * *
* is less than thirteen years of age, whether or not the offender knows the age of that
person.”
3. {¶ 10} On October 11, 2022, the case proceeded to a jury trial. During the course
of the trial, appellee presented the testimony of Officer Baur (“Baur”), the investigating
police officer, and the eyewitness testimony of the victim’s parents. Baur testified that
the victim’s father had reported to the officer that he had observed, “[Appellant] kneeling
down with his pants down, his penis in his hand while he was masturbating, and he said
that he had his hand on the back of [the victim’s] right thigh.”
{¶ 11} The officer further elaborated that his investigation uncovered no evidence
that appellant had ejaculated or that the victim had been raped or sexually assaulted. The
officer testified that the victim’s father had provided him with a copy of appellant’s
Facebook messages to him following the incident, including the above-quoted
acknowledgement by appellant of committing the action underlying the offense.
{¶ 12} The trial court next heard testimony from Aariona Sims (“Sims”), the
victim’s mother. Sims testified that on the night of the incident appellant seemed, “Off *
* * not like he usually was.” In describing the basis of her perception that something
struck her as amiss with appellant prior to the incident, she testified that, “[Appellant]
was following [the victim] around * * * He was going up to her room, trying to get into
her bed.”
{¶ 13} Sims testified that, as she was cleaning up the kitchen, she became
concerned about the victim being alone with appellant in the living room given that
appellant had been acting strangely during his visit that day. Accordingly, Sims decided
4. to look out into the living room to check on her daughter. Sims testified that upon doing
so, she observed appellant seated next to her daughter, with his pants pulled down, his
penis exposed, and, “He was stroking his -- like, [he was] masturbating * * * he was
rubbing her legs.” In response to seeing this, Sims testified that she ran out into the
room, screamed at appellant, grabbed her daughter, and carried her out of the room.
Appellant said nothing to Sims and quickly pulled his pants up. Sims then testified that
after she and her fiancé drove appellant back to Sandusky, they promptly returned to
Clyde and filed a police report.
{¶ 14} Jeremiah Steel (“Steel”), Sims’ fiancé and the victim’s father, next
testified. Steel testified that appellant is his cousin and that, prior to this incident, they
had been on close terms. The two of them had previously worked construction jobs
together. Steel testified that on the day of the incident he had offered to pick appellant up
and bring him back to his residence in Clyde to join his family for dinner. Steel testified
that as he and Sims were cleaning up in the kitchen after dinner, they looked out into the
living room to check on their daughter. Steel testified that he observed appellant, “[O]n
his hands and knees with * * * [his] scrotum out in his hands * * * [the victim] sitting in
front of him, [appellant] sitting back and tugging on himself in front of my daughter * * *
masturbating.”
5. {¶ 15} On the issue of physical contact, Steel was asked, “Was [appellant]
touching your daughter?” Steel replied, “He was starting – getting ready to.” (Emphasis
added). Following Steel’s testimony, appellee rested the presentation of their case.
{¶ 16} At this juncture, appellant requested, and was granted, a one-day
continuance in order to attempt to secure an investigator, who appellant had not
subpoenaed, but who he now decided that he wished to have testify to rebut the trial
testimony of Sims on the issue of physical touching between appellant and the victim.
{¶ 17} The express purpose of the desired rebuttal testimony of the investigator
was to confirm a telephone conversation between Sims and the investigator during which
Sims indicated that although she had observed appellant masturbating next to her
daughter, she did not see appellant physically touch her daughter, as opposed to her trial
testimony incongruously stating that appellant was rubbing her daughter’s legs while he
was masturbating. In addition to being granted the continuance, appellant was also
granted leave to recall Sims to the stand to directly cross-examine her regarding the
above-described discrepancy.
{¶ 18} The following day, appellant began the presentation of the defense of the
case. Appellant first called Malina James (“James”), appellant’s mother, as a witness for
the defense. James testified that she now lives in Pennsylvania. Unexpectedly for the
defense, James testified that appellant’s reputation among family members is one of
“manipulation.” James then testified that appellant, “lies to get what he wants.” Despite
6. being reminded of the consequences of perjury, James remained unwavering in her
testimony adverse to appellant, her son.
{¶ 19} At the conclusion of the adverse testimony of his mother, a witness that he
had called, appellant requested a second continuance, in order to again attempt to secure
the voluntary testimony of the above-discussed investigator, who had declined to appear
voluntarily after being contacted by appellant following the first continuance.
{¶ 20} The trial court denied a second continuance, but it permitted appellant to
recall Sims to undergo cross-examination regarding the above-discussed telephone
conversation between the investigator and Sims, in which Sims denied seeing appellant
touch her daughter while he was masturbating in front of her.
{¶ 21} Under recross, Sims directly conceded telling the investigator during their
telephone conversation that while she observed appellant masturbating next to her
daughter, she did not recall seeing appellant touch her daughter.
{¶ 22} In elaborating on the discrepancy with her direct examination trial
testimony on the issue of physical contact, in which she stated that she had observed
appellant rubbing her daughter’s legs while he was masturbating, Sims explained, “I told
[the investigator] I don’t remember * * * I don’t really recall * * * that’s what I told him
* * * I didn’t know who this person was. He called me out of the blue.”
7. {¶ 23} Upon redirect, Sims explained that the investigator telephoned her out of
the blue, he did not clearly identify himself, and that she felt uncomfortable discussing
the case with him.
{¶ 24} Following the additional recross testimony of Sims, appellant rested their
defense of the case and made a Crim.R. 29 motion for acquittal on the basis of the
conflicting statements by Sims regarding whether or not appellant had physically touched
the victim while masturbating next to her. Appellee argued in opposition that the recross-
examination of Sims entailed her direct acknowledgment of the discrepancy, irrespective
of the investigator not appearing voluntarily to confirm same, and that it constituted a
witness credibility issue proper for the jury to weigh and consider, as related to the issue
of whether physical contact occurred between appellant and the victim during the
incident. The trial court concurred. The motion for acquittal was denied and the case
was submitted to the jury. In addition, the jury was instructed, given the above-detailed
facts and circumstances presented at trial, to also consider the lesser included offense of
attempted gross sexual imposition, in violation of R.C. 2907.05 and 2923.02.
{¶ 25} R.C. 2923.02 (A)-(B) establishes that, “No person, purposely or knowingly
* * * shall engage in conduct that, if successful, would constitute or result in the offense
* * * It is no defense to a charge that, in retrospect, commission of the offense * * * was
either factually or legally impossible under the attendant circumstances.”
8. {¶ 26} The jury deliberated and declined to find appellant guilt of gross sexual
imposition, but rather, the jury found appellant guilty of the lesser included offense of
attempted gross sexual imposition, in violation of R.C. 2907.05 and 2923.02, a felony of
the fourth degree.
{¶ 27} On October 19, 2022, appellant was sentenced. At sentencing, the trial
court noted that appellant’s relationship with the victim facilitated the offense, and that
appellant showed no remorse for the offense. Appellant was sentenced to an 18-month
term of incarceration. This appeal ensued.
{¶ 28} In his first assignment of error, Prophet alleges that he received ineffective
assistance of counsel based upon the claim that defense counsel “forgot” to subpoena the
investigator who had spoken to Sims about the incident.
{¶ 29} As this court recently held in State v. Lofton, 6th Dist. Lucas No. L-22-
1111, 2023-Ohio-2796, ¶ 8,
To overcome her trial counsel’s presumption of competence,
appellant has the burden to show both: (1) deficient performance by her
trial counsel below an objective standard of reasonable representation, and
(2) a reasonable probability of prejudice that but-for her trial counsel's
errors, the outcome would have been different. If appellant fails to meet
either prong of the Strickland test, it is not necessary for us to engage in an
9. analysis of the other prong. State v. Bradley, 42 Ohio St.3d 136, 143, 538
N.E.2d 373 (1989), citing Strickland at 697.
Further, as held by this court in State v. Jackson, 6th Dist. Sandusky
No. S-20-036, 2021-Ohio-4619, ¶ 17, ‘[A] properly licensed attorney in
Ohio is presumed competent.’ State v. Hamblin, 37 Ohio St.3d 153, 524
N.E.2d 476 (1988). Tactical, strategic decisions do not constitute a
meritorious basis of an ineffective assistance of counsel claim. State v.
Phillips, 74 Ohio St.3d 72, 656 N.E.2d 643 (1995).
{¶ 30} Appellate courts must be highly deferential and retain a strong presumption
that counsel’s conduct fell within the range of reasonable professional assistance when
reviewing ineffective assistance of counsel claims. State v. Bender, 6th Dist. Ottawa No.
OT-22-019, 2023-Ohio-486 ¶ 16, quoting Strickland, at 689.
{¶ 31} In conjunction with the above, the Ohio Supreme Court affirmed in State v.
Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.2d 1185, ¶ 123, “Counsel’s
decision whether to call a witness falls within the rubric of trial strategy and will not be
second-guessed by a reviewing court. State v. Treesh, 90 Ohio St.3d 460, 739 N.E.2d
749 (2001).” (Emphasis added).
{¶ 32} In the first assignment of error, appellant unilaterally characterizes the fact
that the investigator was not subpoenaed as something done in error, as something that
10. trial counsel had decided and intended to do, but nevertheless, “forgot” to do. The record
is devoid of evidence demonstrative of this characterization.
{¶ 33} Contrary to the characterization of the matter upon appeal, in
contemporaneously explaining the issue to the trial court when requesting the first
continuance, trial counsel for appellant stated, “I am [now] seeking to have the
appearance of investigator Jim Meadows [“Meadows”] to testify about his interview of *
* * Sims. I did not subpoena him * * * [H]is testimony would be in the form of that
Sims[,] in the course of the interview[,] stated that she did not see any [physical] contact
by [appellant] against the [victim].”
{¶ 34} From the record of evidence, it can only be discerned that appellant first
elected to not subpoena Meadows as a witness to testify at trial, but subsequently
determined, after hearing Sims’ incongruous trial testimony on the subject of physical
contact, that he now wished to have trial testimony from the investigator to rebut Sims’
trial testimony on the issue of physical contact. Such a scenario constitutes a tactical
decision, and falls with the rubric of trial strategy.
{¶ 35} However, regardless of our conclusion that Meadows was not present due
to a tactical decision to not subpoena him, untimely reconsidered after appellee’s case
was presented, the record reflects that the trial court nevertheless gave appellant a
continuance to secure the witness, and when the witness did not voluntarily appear, the
11. trial court granted appellant leave to recall Sims to address the discrepancy directly with
her upon her recross-examination.
{¶ 36} The record reflects that during recross, Sims directly conceded her
divergent statement on the issue of physical contact with the victim to Meadows,
enabling the jury to weigh and consider the discrepancy, and related witness credibility
implications, during the course of their deliberations, just as would have been done had
the discrepancy been revealed by the investigator.
{¶ 37} On consideration of the foregoing, we find that appellant has failed to
establish the first prong of Strickland. The record contains no convincing evidence that
Meadows not receiving a subpoena to testify at trial was anything other than a tactical
decision of counsel. The claim upon appeal that trial counsel had decided to subpoena
the investigator, but forgot to do so, has no basis in the record of evidence.
{¶ 38} However, even assuming arguendo that we were satisfied that appellant
established the first prong of Strickland, we would nevertheless find that appellant could
not satisfy the second prong of Strickland. Appellant has not established a reasonable
probability of prejudice that but-for her trial counsel's errors, the outcome would have
been different. The record definitively demonstrates that the recross of Sims procured a
direct concession of the very testimonial disparity on the issue of physical contact that
would have otherwise been sought by the testimony of Meadows. Under these
12. circumstances, appellant cannot demonstrate that the outcome of the matter would have
been different. Wherefore, we find appellant’s first assignment of error not well-taken.
{¶ 39} In appellant’s second assignment of error, appellant similarly contends that
the trial court erred and abused its discretion in failing to grant appellant’s Crim.R. 29
motion for a mistrial.
{¶ 40} Prophet presents no new or additional arguments in support of this assigned
error. He presents the same arguments as those he presented in support of his first
assignment of error. Namely, the absence of trial testimony from Meadows on the issue
of what Sims stated to him regarding physical contact between appellant and the victim.
{¶ 41} However, appellant urges this court to review this assignment as plain error
under Crim.R. 52(B). That rule states:
(B) Plain Error. Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.
{¶ 42} In this case, appellant moved the trial court to declare a mistrial based upon
the absence of witness Meadows. That motion was denied.
{¶ 43} Therefore, the trial court was directly confronted with the issue that is now
raised before this court. Appellant has put forth no argument or supportive authority that
would warrant a plain error standard of review under these circumstances. Typically,
plain error review occurs if a party forfeits an objection in the trial court. State v. Jones,
13. 6th Dist. Wood No. WD-18-063, 2019-Ohio-3704, ¶ 20, 143 N.E.3d 1170, quoting State
v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 15.
{¶ 44} As held by this court in State v. Durst, 6th Dist. Huron No. H-18-019,
2020-Ohio-607, ¶ 46, “Review of the trial court’s decision denying motion for mistrial
ordinarily falls under an abuse of discretion standard. State v. Rossbach, 6th Dist. Lucas
No. L-09-1300, 2011-Ohio-281, ¶ 39, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d
343 (1987). Abuse of discretion means that the trial court’s decision was unreasonable,
arbitrary, or unconscionable.” Accordingly, we will review appellant’s second
assignment of error pursuant to the abuse of discretion standard of review.
{¶ 45} The Ohio Supreme Court has declared that a mistrial should not be ordered
in a cause simply because some error has intervened. Moreover, mistrials need be
declared only when the ends of justice so require and a fair trial is no longer possible.
State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). An appellate court
should only take notice of plain error under exceptional circumstances and only to
prevent a manifest miscarriage of justice. State v. Landrum, 53 Ohio St.3d 107, 111, 559
N.E.2d 710 (1990).
{¶ 46} In this instance, the trial court granted appellant a continuance in order to
secure the appearance of Meadows. Meadows again did not appear. Regardless, the trial
court granted appellant leave to recall Sims to conduct a recross-examination, during
which Sims directly conceded the very point which was going to be sought through the
14. testimony of Meadows. Thus, the jury was aware of the discrepancy in Sims’ testimony
on the issue of physical contact by her own admission, and thereafter was able to weigh
same in the course of their deliberations.
{¶ 47} Based upon these facts and circumstances, we cannot say that the trial
court’s decision to deny appellant’s motion for a mistrial was unreasonable, arbitrary, or
unconscionable. Wherefore, we find appellant’s second assignment of error not well-
taken.
{¶ 48} On consideration whereof, the judgment of the Sandusky County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE
15. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
16.