State v. McCleery, 2022 Ohio 263

Background

Indictment charged McCleery with domestic violence, rape, attempted rape, two counts of felonious assault (hammer and knife), and disrupting public services arising from an alleged July 2–3, 2020 assault on his girlfriend, K.R.
K.R. testified McCleery ripped her phone, wiped his fingers across her genital area, put her in a chokehold, inserted his fingers into her vagina (disputed), ripped off her underwear, and attempted to penetrate her with a claw hammer placed between her buttocks/near her vagina; she sustained scratches/bruises and fled to relatives and the hospital.
Physical evidence: torn underwear, puncture marks/stabbing damage to the bedroom door and walls, DNA mixtures from hammer handle/head consistent with both parties; vaginal swab positive for acid phosphatase but no semen; male DNA on jaw excluded McCleery.
McCleery admitted drinking heavily, acknowledged wielding a hammer and knife to intimidate, denied penetrating K.R.; jail calls showed remorse and attributed conduct to intoxication.
Jury convicted McCleery of Domestic Violence, Attempted Rape, and Felonious Assault (hammer); acquitted on Rape, the knife-related felonious assault, and disrupting public services. Trial court merged allied offenses and sentenced on Attempted Rape; consecutive terms imposed.
On appeal McCleery raised (1) sufficiency/manifest-weight challenges to Attempted Rape and Felonious Assault and (2) ineffective assistance for failure to object to leading questions, eliciting harmful expert testimony, and not requesting a "false in one, false in all" jury instruction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency/weight of evidence for Attempted Rape (and felonious assault merged)	Victim's testimony, injuries, scene photos, torn underwear, and DNA on hammer provide sufficient evidence that McCleery intended and took acts toward forced sexual penetration	Victim was inconsistent, intoxicated, and DNA did not show McCleery as source of vaginal material; testimony was incredible	Affirmed: evidence sufficient; credibility resolved by jury. Felonious assault inquiry need not be separately addressed because merged with attempted rape for sentencing (harmless error).
Ineffective assistance — failure to object to leading questions on direct	Prosecutor’s questions were within broad discretion; trial strategy and no prejudice shown	Counsel should have objected to leading questions that guided victim’s testimony	No ineffective assistance; omission was trial strategy and did not alter outcome.
Ineffective assistance — cross‑examination of forensic expert eliciting that no semen was present	Cross-examination was reasonable trial strategy to highlight absence of defendant’s DNA and clarify DNA issues; damaging answers do not show ineffectiveness	Defense counsel improperly elicited a recantation of helpful testimony, harming defense	No ineffective assistance; counsel entitled to deference and no reasonable probability of a different result.
Failure to request "false in one, false in all" jury instruction	No basis for instruction because record lacked proof of a willful, material perjury by victim; standard jury credibility instruction sufficed	Counsel should have requested the instruction due to alleged inconsistencies in victim testimony	No error or prejudice; instruction inappropriate absent evidence of intentional falsehoods.

Key Cases Cited

State v. Bridgeman, 55 Ohio St.2d 261 (establishing sufficiency standard for Crim.R. 29 challenges)
State v. Jenks, 61 Ohio St.3d 259 (adopting Jackson standard for reviewing sufficiency of the evidence)
State v. Thompkins, 78 Ohio St.3d 380 (distinguishing sufficiency from manifest-weight review)
Jackson v. Virginia, 443 U.S. 307 (constitutional sufficiency standard for conviction)
Strickland v. Washington, 466 U.S. 668 (two-part ineffective-assistance-of-counsel test)
Mikula v. Tailors, 24 Ohio St.2d 48 (permitting "false in one, false in all" instruction only where witness willfully lies about material fact)