State v. Montgomery, 2011 Ohio 3259

Kenneth Montgomery appeals his conviction for gross sexual imposition with a sexually violent predator specification, which the court bifurcated and dismissed.
The incident occurred January 16, 2010, at a sleepover where the victim J.M. slept on a couch; Montgomery is related to J.M. through J.W.’s family.
Around 3:00 a.m., Montgomery touched J.M.’s buttock over clothing, kissed her cheek, and urged her to spread her legs, stating he would get on top; J.M. said no and Montgomery left.
J.M. disclosed the events to J.W., who informed her grandmother, who then contacted J.M.’s mother and the police; Montgomery was tried and convicted of gross sexual imposition and sentenced to two years’ imprisonment, classified as a Tier II sex offender.
Montgomery raises four assignments of error on appeal: manifest weight of the evidence, ineffective assistance of counsel, improper jury instruction on prior criminal history, and prosecutorial misconduct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Manifest weight of the evidence	Montgomery argues the verdict is against the weight of the evidence	State argues credibility and witness demeanor support the conviction	Assignment of error overruled
Ineffective assistance of counsel	Montgomery claims counsel erred by introducing his statement and opening the door to prior convictions	State contends strategy; errors did not prejudice the trial	Assignment of error overruled
Limiting instruction on criminal history	Trial court failed to give limiting instruction on prior convictions	No request for limiting instruction; no plain error	Assignment of error overruled
Prosecutorial misconduct in closing	Prosecutor improperly urged character evidence and empathy	Remarks were improper only if prejudicial; context negates prejudice	Assignment of error overruled

State v. Wilson, 113 Ohio St.3d 382 (2007-Ohio-2202) (standard for manifest-weight review in Ohio)
State v. Thompkins, 78 Ohio St.3d 380 (1997-Ohio-52) (distinguishes sufficiency from weight; 'thirteenth juror' concept)
State v. Martin, 20 Ohio App.3d 172 (1983) (exceptional weight case; reversal only for miscarriage of justice)
State v. Davis, 2011-Ohio-2387 (2011-Ohio-2387) (no requirement that sexual-assault victims’ testimony be corroborated)
State v. Blackman, 2011-Ohio-2262 (2011-Ohio-2262) (appellate deference to witness credibility remains essential)
State v. Garcia, 2002-Ohio-504 (2002-Ohio-504) (prosecutor closing remarks; not prejudicial under plain error)
State v. Wamsley, 117 Ohio St.3d 388 (2008-Ohio-1195) (plain-error review standards for closing arguments)
Strickland v. Washington, 466 U.S. 668 (1984) (establishes deficient performance and prejudice inquiry for ineffective assistance)
State v. Hester, 45 Ohio St.2d 71 (1976) (reasonable fair-trial standard in evaluating counsel performance)
State v. Lytle, 48 Ohio St.2d 391 (1976) (defense duties and prejudice analysis in ineffective-assistance)