2021 Ohio 3147
Ohio Ct. App.2021Background
- Carl S. Vulgamore was indicted on four counts (three counts of gross sexual imposition and one count of rape) alleging sexual offenses against a child under 13 occurring 2015–2017; he pleaded not guilty and not guilty by reason of insanity and was found competent for trial.
- The prosecution's case relied principally on victim M.H.’s testimony and medical evidence (a pediatric exam noting a V-shaped vaginal defect); M.H. described four separate incidents between June 2015 and December 2017.
- Vulgamore testified and denied the allegations, admitting purchase of certain vibrators but denying giving them to M.H.; he claimed medical and memory issues and that he uses VA-prescribed medication to have sex.
- A jury convicted Vulgamore on all counts; the trial court sentenced him to an aggregate term of 20 years to life and classified him a Tier III sex offender.
- Vulgamore discharged his trial counsel, retained new counsel, and filed a motion for new trial (challenging counsel’s effectiveness and other matters). The trial court denied the motion as untimely, and alternatively for lack of merit; Vulgamore appealed.
Issues
| Issue | State's Argument | Vulgamore's Argument | Held |
|---|---|---|---|
| Timeliness of motion for new trial | Verdicts were rendered May 30, 2019; Crim.R. 33(B) required motion within 14 days — motion filed June 14 (or docketed June 17) was untimely | Motion was timely because filing/transmission issues and clerk tardiness made the filing within 14 days | Motion was untimely; verdict rendered May 30, 2019, filing was after the 14-day period, so denial for untimeliness affirmed |
| Ineffective assistance — decision not to voir dire jurors after elevator incident / request mistrial | Trial court’s curative instruction was sufficient; counsel’s choice was reasonable trial strategy to avoid highlighting the incident | Counsel should have moved for mistrial or voir dired jurors because jurors saw Vulgamore with a deputy and M.H. cried, prejudicing him | Counsel’s tactical decision to accept a curative instruction rather than voir dire or seek mistrial was reasonable; no deficient performance found |
| Ineffective assistance — evidentiary objections and cross-examination (Dr. Luckeydoo testimony about exam and statements; failure to ask about dildo use) | Dr. Luckeydoo’s testimony (medical findings and statements made for treatment) was admissible under Evid.R. 803(4); objections would likely be futile | Counsel erred by not objecting to prior-consistent statements and by failing to probe whether M.H. admitted using a dildo (which could impeach causation) | Failure to object or ask the suggested question was reasonable trial strategy; objections likely futile and questioning could have backfired; no deficiency or prejudice shown |
| Ineffective assistance — failure to investigate/call witnesses and present alibi/medical records | Counsel investigated and made reasonable tactical choices; proposed witnesses were unavailable or their testimony speculative | Counsel failed to interview/call Gatten, Minott, VA nurse, obtain VA records, or file an alibi notice; these omissions prejudiced defense | Appellant offered no concrete evidence of what those witnesses/records would show; decisions fall within reasonable strategy; no ineffective assistance or prejudice shown |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective-assistance standard)
- State v. Schiebel, 55 Ohio St.3d 71 (1990) (standard that Crim.R. 33 review is discretionary and abuse-of-discretion standard)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
- State v. Holloway, 38 Ohio St.3d 239 (1988) (counsel must substantially perform essential duties; failure to object alone is insufficient to prove ineffective assistance)
- State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error review requires showing that outcome clearly would have been otherwise)