State v. Timm

2023 Ohio 3768

• Court: Ohio Court of Appeals
• Decided: October 16, 2023
• Docket: 21-CAA-11-0060
• Status: Published

Opinion

[Cite as State v. Timm, 2023-Ohio-3768.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : GARY TIMM, JR. : Case No. 21-CAA-11-0060 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 20 CR I 11 0738

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 16, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL ERIC J. ALLEN KATHERYN L. MUNGER 4200 Regent Street 145 North Union Street, 3rd Floor Suite 200 Delaware, OH 43015 Columbus, OH 43219 Delaware County, Case No. 21-CAA-11-0060 2

King, J.

{¶ 1} Defendant-Appellant Gary Timm, Jr. appeals his October 2021 judgment of

conviction and sentence for one count of rape and one count of gross sexual imposition.

Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In early 2019, A.R. was 15 years old. She lived with her grandfather, R.R.,

her uncle, B.R., her older sister L.R., and L.R.'s boyfriend, appellant herein.

{¶ 3} In February 2019, L.R. gave birth to her and appellant's son. Shortly

thereafter, L.R., appellant, and the infant moved to their own apartment a short drive away

from R.R. At that point, A.R. had a good relationship with appellant. She considered him

a friend and had no reason to dislike or fear him.

{¶ 4} On a date somewhere between March and May of 2019, A.R. went home

from school sick. Her uncle, B.R. picked her up, took her home, and then left for work.

Thereafter, appellant arrived at A.R.'s home to either drop off or pick up a car jack. While

there, appellant spoke with A.R. about being bullied at school, gave her some advice, and

then left.

{¶ 5} Appellant returned a short time later to do laundry, something that was not

typical as L.R. usually handled that task or she and appellant did it together. L.R. was

supposed to do the laundry that day, but appellant volunteered. L.R. found this odd.

Before appellant left, L.R asked who was home at R.R.'s and appellant said A.R. was

home.

{¶ 6} Once appellant arrived, he asked A.R. to accompany him to the basement

to start the laundry. Once in the basement, appellant told A.R. she looked tense and Delaware County, Case No. 21-CAA-11-0060 3

asked if she wanted a massage. A.R. said "I don't know" to which appellant responded

"Ya. I'll give you a massage." Appellant then directed A.R to lay on her stomach over a

barstool. Feeling uncertain, A.R. sat on the barstool. Appellant corrected her, telling her

"no, on your stomach." A.R. complied. Once A.R. was lying over the stool, appellant did

rub A.R.'s back, but then pulled her leggings and underwear down and digitally penetrated

her vagina. Taken by surprise, A.R. felt paralyzed with fear and unable to voice her

objection. Appellant then asked A.R. if she wanted "it" inside her, apparently referring to

his penis. A.R. found her voice, and said "No, I'm okay. I just want to go upstairs."

{¶ 7} A.R. fixed her clothing and she and appellant went upstairs to the kitchen

where A.R. sat on the counter. Appellant asked A.R. "You're not going to tell anybody,

right?" A.R. stated she would not. Appellant then said "Okay. Give me a hug" and A.R.

complied.

{¶ 8} About that time, L.R. made a Facetime call to appellant because he had

been gone longer than necessary for their usual routine of simply switching over laundry

loads and returning home in between instead of staying while the loads cycled. Asked

what was taking so long appellant said he was waiting for clothes to dry. L.R. asked where

A.R. was and appellant turned his phone to show A.R. sitting on the counter top. L.R.

thought something seemed odd about A.R. during the call, but dismissed the thought.

{¶ 9} Sometime after that incident, appellant and L.R. were together at A.R.'s

house doing laundry. Appellant was helping A.R. take hair dye out of her hair using

peroxide, while L.R. was in and out of the room handling the laundry. A.R. had asked L.R

to help her with her hair, but appellant offered to do it. A.R. was seated in front of the

laundry room sink as appellant applied the peroxide. While performing the task, appellant Delaware County, Case No. 21-CAA-11-0060 4

would tap A.R.'s elbows to get her to stand up, and then rub his crotch against A.R.'s

buttocks. She would sit down and he would do the same thing again. Both were clothed,

but A.R. believed appellant had an erection. A.R. once again felt too frozen with fear to

respond and felt there was nothing she could do to make the assault stop.

{¶ 10} A.R. did not tell anyone about either incident for a while. She eventually told

three friends who encouraged her to tell her grandfather, R.R. R.R. had noticed a change

in A.R. leading up to her disclosure both emotionally and physically as A.R. had lost a lot

of weight. R.R. left it up to A.R. to decide what she wanted to do next and initially A.R.

decided to do nothing. But later, A.R. told her pediatrician who advised her to contact

police.

{¶ 11} At the direction of Delaware City Police Department Detective Daniel

Madden, R.R. took A.R. to Nationwide Children's Hospital Children's Advocacy Center

(CAC) for a video recorded forensic interview and physical exam. A.R. disclosed the

above outlined incidences to the interviewer. She further discussed the emotional impact

of the events and the fact that her sister told her that after she and appellant fight he also

asks her if she's going to tell anyone and then asks for a hug. Finally, A.R. underwent a

genital examination which was normal.

{¶ 12} Detective Madden spoke to appellant who denied the allegations. He did

acknowledge going to A.R.'s house to do laundry and initially stated he was there for a

couple minutes; just long enough to switch over loads. He later stated he was there for

15 minutes, had advised A.R. to "keep her head up," and recalled the Facetime call from

L.R. He also confirmed that he helped A.R. with her hair, but stated L.R. was in the

basement with them the entire time. Delaware County, Case No. 21-CAA-11-0060 5

{¶ 13} When A.R. told her sister L.R. what happened, L.R. was angry and did not

want to believe A.R. She confronted appellant who denied anything ever happened

between he and A.R. Sometime later, however, L.R. changed her mind. During an

argument with appellant he told L.R. "that's why your sister came on to me." Further, the

fact that A.R. said appellant asked if she was going to tell anyone and then asked for a

hug was familiar to L.R. because appellant did the same thing with her when they argued.

{¶ 14} As a result of these events, on November 16, 2020, the Delaware County

Grand Jury returned an indictment charging appellant with one count of rape in violation

of R.C. 2907.02(A)(2), and one count of gross sexual imposition in violation of R.C.

2907.05(A)(1). Appellant pled not guilty to the charges and opted to proceed to a jury trial

which began on October 5, 2021 and concluded on October 7, 2021.

{¶ 15} At trial, the state presented the above outlined evidence including the video

of A.R.'s forensic interview which was redacted as agreed upon by the state and counsel

for appellant.

{¶ 16} Appellant testified on his own behalf. As to the first incident, he initially

stated he never borrowed a car jack, but later in his testimony stated he did. He testified

it was not unusual for him to stop by and do laundry and that nothing happened between

he and A.R. that day. He stated their interaction was limited to him seeing her on the sofa

crying and him telling her to keep her head up before he left. He stated neither the

Facetime call nor the hug after allegedly asking A.R. not to tell ever happened.

{¶ 17} As for the second incident. Appellant confirmed he helped A.R. with her

hair, but stated L.R. was in the basement with them the entire time and therefore nothing

untoward happened between he and A.R. Delaware County, Case No. 21-CAA-11-0060 6

{¶ 18} Appellant first testified A.R. was lying about these incidents, but he did not

know why. He later testified A.R. was lying to keep him away from his son so he would

go to prison and L.R. would get sole custody of their son.

{¶ 19} After receiving the evidence and deliberating, the jury found appellant guilty

as charged. At a later sentencing hearing, appellant was sentenced to an indefinite prison

term of 6 to 9 years for rape, and a definite term of 12 months for gross sexual imposition.

Appellant was ordered to serve the sentences consecutively. Appellant was further

classified as a Tier III sex offender.

{¶ 20} Appellant timely filed an appeal and we affirmed appellant’s convictions.

State v. Timm, 5th Dist. Delaware App. No. 21 CAA 11 0060, 2022-Ohio-3010 (Timm I).

In his direct appeal, appellant raised six assignments of error challenging 1.) a jury

instruction regarding force; 2.) the sufficiency of the evidence as it related to his conviction

for rape; 3.) the manifest weight of the evidence as it pertained to his conviction for gross

sexual imposition; 4.) the admission of victim impact testimony; 5.) an ineffective

assistance of trial counsel which was limited to trial counsel's failure to challenge the

constitutionality of the Regan Tokes Act and; 6.) cumulative error.

{¶ 21} On September 8, 2022, appellant filed an application for reconsideration.

On September 26, 2022, we denied appellant's application.

{¶ 22} On November 9, 2022, appellant filed a motion in support of jurisdiction with

the Supreme Court of Ohio. On January 17, 2023, the court declined jurisdiction.

{¶ 23} On December 22, 2022, appellant filed a motion seeking to reopen his

appeal pursuant to App.R. 26(B). The motion was granted on January 23, 2023. Upon

reopening, appellant raises three assignments of error as follow: Delaware County, Case No. 21-CAA-11-0060 7

I

{¶ 24} "APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

GUARANTEED BY THE SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION

MADE APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT

WHEN TRIAL COUNSEL FAILED TO OBJECT TO A JURY INSTRUCTION WHICH

LOWERED THE BURDEN OF PROOF FOR THE OFFENSE OF RAPE."

II

{¶ 25} "APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

GUARANTEED BY THE SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION

MADE APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT

WHEN TRIAL COUNSEL FAILED TO OBJECT TO INADMISSIBLE IRRELEVANT

VICTIM IMPACT TESTIMONY DURING THE TRIAL."

III

{¶ 26} "APPELLANT WAS DENIED DUE PROCESS GUARANTEED BY THE

FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION MADE APPLICABLE TO

THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT WHEN THE COURT

ALLOWED VICTIM IMPACT EVIDENCE IN THE TRIAL."

{¶ 27} Appellant's first assignment of error argues trial counsel rendered

ineffective assistance by failing to object to an allegedly erroneous jury instruction. We

disagree.

{¶ 28} To prevail on a claim of ineffective assistance of counsel, appellant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell Delaware County, Case No. 21-CAA-11-0060 8

below an objective standard of reasonable representation, and (2) that counsel's errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the

result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. "Reasonable

probability" is "probability sufficient to undermine confidence in the outcome." Strickland

at 694, 104 S.Ct. 2052.

{¶ 29} Because there are countless ways to provide effective assistance in any

given case, judicial scrutiny of a lawyer's performance must be highly deferential.

Strickland, 466 U.S. 668 at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. "Decisions on strategy

and trial tactics are granted wide latitude of professional judgment, and it is not the duty

of a reviewing court to analyze trial counsel's legal tactics and maneuvers." State v.

Quinones, 8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544, ¶ 18.

{¶ 30} In Timm I, supra, we found that even if the instruction was erroneous, the

outcome of the trial would have been no different. Timm I we found:

As discussed in the first assignment of error, appellant agreed to a

jury instruction which stated removing the clothing of another without

consent for the purpose of engaging in sexual conduct or contact

may constitute force. While we will not address whether or not that

instruction is correct, we have recently held that placing a hand under

clothing without something more does not constitute force. State v.

Moore, 5th Dist. Morgan No. 21AP0003, 2022-Ohio-2349, ¶ 38. Delaware County, Case No. 21-CAA-11-0060 9

Here, A.R. testified to something more. Appellant asked her to go to

the basement with him. He then directed A.R. to lie on her stomach

over a barstool under the ruse of giving her a backrub. Once

appellant had manipulated A.R. into assuming this vulnerable

position, he pulled A.R.'s leggings and underwear down and digitally

penetrated her vagina. T. 232-235, state's exhibit 1. We find this

evidence sufficient to prove force and to support appellant's

conviction for rape.

{¶ 31} Id. ¶ 42-43.

{¶ 32} Therefore, even if we found counsel's agreement to the jury instruction

constituted deficient performance, appellant still could not establish he was prejudiced

thereby.

{¶ 33} The first assignment of error is overruled.

{¶ 34} In his second assignment of error, appellant makes a second ineffective

assistance of counsel argument. In this assignment of error, appellant argues counsel

rendered ineffective assistance by failing to object to victim impact testimony elicited by

the state in its case-in-chief. Specifically, appellant argues trial counsel should have

objected to (1) testimony from A.R. regarding the fact that she lost weight, suffered an

eating disorder, engaged in self-harm, and is unable to trust people as a result of this

incident; (2) testimony from A.R.'s friend F.H. regarding his observation that A.R. was Delaware County, Case No. 21-CAA-11-0060 10

shaking, sweating, and queasy upon seeing appellant at R.R.'s home; and (3) R.R.'s

testimony that A.R. now has an aversion to entering the basement where these events

took place.

{¶ 35} Evid.R. 403(A) states: "Although relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of confusion

of the issues, or of misleading the jury."

{¶ 36} Like the jury instruction, this court also addressed a complaint of

inadmissible victim impact testimony in Timm I. Because counsel did not object, we

applied a plain error standard of review:

We next address testimony by A.R. and R.R. regarding the emotional

impact of the offenses on A.R. socially, emotionally, and physically.

Most of this testimony was cumulative to statements A.R. made in

the CAC video. A.R. also described how she "freaked out" when after

the events appellant was on trial for occurred, he came to her house

to visit his son. T. 245-247. A.R.'s grandfather, her friend F.H, and

sister L.R. also testified regarding A.R.'s reaction to appellant's visit

to the house. T. 157. However, A.R. discussed the same event in the

CAC video shown to the jury as approved by counsel for appellant.

We therefore find the testimony was merely cumulative.

A.R. did testify to a few things that were not contained in the video.

Specifically, she stated she struggles with trust and described Delaware County, Case No. 21-CAA-11-0060 11

behaviors brought on by her victimization such as cutting herself,

pulling her own hair, and the development of an eating disorder

which caused her to lose more than 70 pounds. Appellant failed to

object to any of this testimony. We therefore review his challenge for

plain error. * * *

We agree with appellant that the victim impact testimony he now

challenges was of any probative value and should have been

excluded. However, we do not find plain error. While the matter of

the victim impact testimony is subject to a plain error analysis,

appellant has failed to raise or argue the existence of plain error here

on appeal. The burden is upon appellant to affirmatively demonstrate

error on appeal. App.R. 16(A)(7); State v. Sims 10th Dist. Franklin

No. 14AP-1025, 2016-Ohio-4763, ¶ 10-11. We decline to construct

a plain error argument on appellant's behalf. Further, even if that

were not true, appellant cannot demonstrate the outcome of his trial

would have been any different without the testimony as A.R. gave a

clear and consistent accounting of incidences of rape and gross

sexual imposition committed by appellant against her. Trial testimony

also showed that before the first incident, appellant returned to A.R.'s

home under the guise of doing laundry after he knew she was home

alone. T. 292-294. Moreover, as discussed above, the majority of the Delaware County, Case No. 21-CAA-11-0060 12

victim impact testimony was cumulative to the video of A.R.'s

forensic interview.

{¶ 37} Timm I, ¶54-58

{¶ 38} Similarly, here, even if we found trial counsel's failure to object to the victim

impact testimony fell below an objective standard of reasonable representation, appellant

still fails to demonstrate prejudice.

{¶ 39} The second assignment of error is overruled.

{¶ 40} In his final assignment of error, appellant argues he was denied due process

when the trial court allowed the victim impact testimony outlined in appellant's second

assignment of error. We disagree.

{¶ 41} First, in support of his argument that the trial court erred by permitting the

testimony, appellant cites State v. Ponce, 10th Dist. Franklin No. 95APA11-1450, 1996

WL 589267 (October 10, 1996). While Ponce involved a similar evidentiary circumstance,

the appellant in Ponce objected to the admission of the complained of evidence. Ponce

at *7. Appellant here did not and the matter is therefore subject to a plain-error analysis.

{¶ 42} Second, as previously outlined in our analysis of appellants second

assignment of error, as well as in Timm I, appellant cannot demonstrate he was

prejudiced by the admission of the evidence.

{¶ 43} The final assignment of error is overruled. Delaware County, Case No. 21-CAA-11-0060 13

{¶ 44} The judgment of the Delaware County Court of Common Pleas is affirmed.

By King, J.,

Delaney, P.J. and

Baldwin, J. concur.