State v. CookState v. Cook
Jeremy J. Masters for Appellant
Samantha M. Hobbs for Appellee
{¶1} Defendant-appellant, Christopher G. Cook, appeals the March 18, 2021 judgment of the Union County Court of Common Pleas denying his petition for postconviction relief without a hearing. For the reasons that follow, we affirm.
I. Facts & Procedural History
{¶2} On May 15, 2019, a Union County jury found Cook guilty of three counts of rape, one count of disseminating matter harmful to juveniles, one count of gross sexual imposition, and one count of intimidation of an attorney, victim, or witness in a criminal case. As relevant to this case, the three counts of rape were based on allegations that Cook had induced two adult women, Jacquelyn Tackett and Jessica Jude, to engage in sexual conduct with his then ten-year-old son, C.C., on several occasions in 2014. For these offenses, Cook was sentenced to an aggregate term of 82 years to life in prison.
{¶3} Cook appealed to this court. State v. Cook, 3d Dist. Union No. 14-19-26, 2020-Ohio-3411 (“Cook I”). Among his seven assignments of error on appeal, Cook argued that his trial counsel was ineffective for failing to challenge the testimony of the State‘s expert witness, Cindy Kuhr. At Cook‘s trial, Kuhr testified about “the phenomen[a] of delayed reporting of sexual abuse” and incremental disclosure, the prevalence of false accusations of child sexual abuse, “the behavioral indicators of child sexual abuse,” her “experience with children who testify in court
{¶4} On September 18, 2020, approximately three months after this court‘s decision in Cook I, Cook filed a petition for postconviction relief in the trial court. In his petition for postconviction relief, Cook renewed his claim that his trial counsel was ineffective for failing to take action to exclude Kuhr‘s testimony from trial. Attached to Cook‘s petition was an affidavit executed by Cook, in which he averred:
My attorney did not file pertinent pre-trial motions, most notably, he did not challenge the competency of the State‘s expert witness, Cindy Kerr [sic]. Miss Kerr [sic] was otherwise disqualified as an expert witness in my co-defendant‘s case, State v. Jacquelyn Tackett, case number 2017-CR-0254, leading to the dismissal of all her charges based on the original allegations[.]
Additional documents were attached to Cook‘s petition, including (1) a photocopy of a November 21, 2017 indictment charging Tackett with two counts of rape and two counts of gross sexual imposition in Union County case number 2017-CR-0254;
{¶5} On September 28, 2020, the State filed a response to Cook‘s petition. In its response, the State argued that Cook‘s claim was barred by res judicata and that, even if Cook could relitigate the issue, he would not prevail because there was no indication that his trial counsel performed deficiently or that Cook was prejudiced. On October 30, 2020, Cook filed a memorandum in support of his petition.
{¶6} On March 18, 2021, the trial court denied Cook‘s petition without a hearing. In its judgment entry, the trial court found as follows:
The issues raised by [Cook] of failing to challenge the qualification of Cindy Kuhr as an expert * * * [were] addressed on the direct appeal. The Third District Court of Appeals overruled the assignments of error and affirmed the judgment of this Court. [Cook] relies upon the subsequent proceedings in the two co-defendants’ cases to establish that the outcome of his trial would have been different had Ms. Kuhr‘s
qualification been challenged * * *. Neither of the co-defendants’ cases proceeded to trial; therefore, the analogy [Cook] is attempting to make is not simple. * * * * * *
The Court finds that [Cook‘s] various claims for ineffective assistance of counsel could have been raised on direct appeal.
Having considered [Cook‘s] petition, the case files, records, transcripts, and evidence of the case, the Court concludes that the petitioner is not entitled to a hearing. The Court finds that [Cook‘s] counsel was not ineffective * * *. The Court further finds that [Cook‘s] petition is barred by res judicata.
II. Assignment of Error
{¶7} On April 15, 2021, Cook timely filed a notice of appeal. He raises the following assignment of error for our review:
The trial court erred denying Mr. Cook‘s postconviction petition without a hearing. March 18, 2021 Decision and Entry.
III. Discussion
{¶8} In his assignment of error, Cook argues that the trial court abused its discretion by denying his petition for postconviction relief without a hearing. Cook maintains his claim is not barred by res judicata because he attached evidence dehors the record to his postconviction petition and his claim is dependent on this evidence. Cook claims that by submitting this evidence for consideration alongside the materials in the original trial record, he set forth sufficient operative facts to
A. Standard of Review
{¶9} “
Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
{¶10} “The filing of a petition for postconviction relief does not automatically entitle the petitioner to an evidentiary hearing.” State v. Andrews, 3d Dist. Allen No. 1-11-42, 2011-Ohio-6106, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 282 (1999). Rather, “[b]efore granting a hearing on a petition filed under [
{¶11} “[I]f the court determines that there are no substantive grounds for relief, it may dismiss the petition without an evidentiary hearing.” State v. Jones, 3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, ¶ 14. “The decision to grant the petitioner an evidentiary hearing is left to the sound discretion of the trial court.” Andrews at ¶ 11. Accordingly, “[w]e review the trial court‘s dismissal of a postconviction petition without a hearing for abuse of discretion.” State v. Jeffers, 10th Dist. Franklin No. 10AP-1112, 2011-Ohio-3555, ¶ 23. An abuse of discretion suggests the trial court‘s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When the abuse of discretion standard applies, an appellate court is not to substitute its judgment for that of the trial court. State v. Thompson, 3d Dist. Henry No. 7-16-10, 2017-Ohio-792, ¶ 11.
B. Ineffective Assistance & Res Judicata in Postconviction Proceedings
{¶12} “Substantive grounds for relief exist and a hearing is warranted if the petitioner produces sufficient credible evidence to demonstrate that the petitioner
{¶13} In addition, a trial court may properly deny a petition for postconviction relief without holding a hearing if the claims in the petition are barred by res judicata. State v. Curtis, 5th Dist. Muskingum No. CT2019-0001, 2019-Ohio-2587, ¶ 22. “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any [claim] that was raised or could have been raised * * * on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus. “Although a defendant may challenge his conviction and sentence by either a direct appeal or
{¶14} Res judicata is not an insurmountable obstacle. “[T]he presentation of competent, relevant, and material evidence dehors the record may defeat the application of res judicata.” State v. Dennison, 4th Dist. Lawrence No. 18CA6, 2018-Ohio-4502, ¶ 16. “To overcome the res judicata bar, evidence offered dehors the record must demonstrate that the petitioner could not have appealed the constitutional claim based upon information in the original record.” State v. Lawson, 103 Ohio App.3d 307, 315 (12th Dist.1995). “‘This means that the evidence relied upon must not be evidence which was in existence or available for use at the time of trial or direct appeal, and * * * cannot be merely cumulative of the evidence already presented.’” State v. Lewis, 3d Dist. Logan No. 8-19-08, 2019-Ohio-3031, ¶ 14, quoting State v. Murphy, 10th Dist. Franklin No. 00AP-233, 2000 WL 1877526, *3 (Dec. 26, 2000). However, simply providing evidence dehors the record does not automatically entitle a petitioner to the requested relief or even a hearing. Rather, “‘[e]vidence presented outside the record must meet some threshold standard of cogency; otherwise it would be too easy to defeat [res judicata] by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner‘s claim beyond mere hypothesis and a desire for further discovery.’” Lawson at 315, quoting State v. Coleman, 1st Dist. Hamilton No. C-900811, 1993 WL 74756, *7 (Mar. 17, 1993).
{¶15} Hence, “[a]lthough ineffective assistance of counsel ordinarily should be raised on direct appeal, res judicata does not bar a defendant from raising this issue in a petition for postconviction relief if the claim is based on evidence outside the record.” State v. Scott-Hoover, 3d Dist. Crawford No. 3-04-11, 2004-Ohio-4804, ¶ 18. “This principle applies even when the issue of ineffective assistance of counsel was raised on direct appeal.” Id., citing State v. Smith, 17 Ohio St.3d 98, 101 (1985), fn. 1. “Generally, the introduction in an
{¶16} Cook‘s postconviction claim revolves around his assertion that Kuhr should have been “disqualified” as an expert witness and that his trial counsel was therefore ineffective for failing to move to exclude Kuhr‘s testimony. Cook repeatedly suggests that Kuhr lacked the qualifications necessary to offer expert testimony, but Kuhr‘s qualifications would not have been the only consideration in determining whether she could testify as an expert. Under
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
D. The trial court did not abuse its discretion by denying Cook‘s petition for postconviction relief without a hearing.
{¶17} Cook‘s most important piece of postconviction evidence is the trial court‘s July 30, 2019 judgment entry (the “Judgment Entry”) disallowing Kuhr‘s testimony at Tackett‘s trial. The relevant portion of the Judgment Entry provides:
This matter came before the Court for hearing on July 29, 2019, upon [Tackett‘s] Motion to Determine Competency of Expert Witness and Reliability of Expert Opinion, filed on July 11, 2019, and followed on July 25th with a second Motion to Exclude State‘s Expert Witness. * * *
The State called as its sole witness, the proposed expert, Cindy Kuhr. The Court has reviewed the motion, memorandum contra, and applicable law on this matter prior to hearing and has considered the testimony of the proposed expert and arguments of counsel during the hearing. Based on the evidence presented to the Court, the Court finds that the State has wholly failed to meet its burden to qualify the expert under Ohio Evidence Rule 702(C).
It is therefore ORDERED that [Tackett‘s] Motion is sustained and that the witness shall not be permitted to testify at trial.
The Judgment Entry thus indicates that Kuhr was excluded from testifying at Tackett‘s trial because the trial court deemed that her testimony did not meet the
{¶18} However, in his postconviction petition, Cook did not explicitly argue that his trial counsel was ineffective for failing to challenge the reliability of Kuhr‘s testimony under
i. Res judicata bars any consideration of whether Cook‘s trial counsel was ineffective for failing to challenge Kuhr‘s testimony under Evid.R. 702(A) .
{¶19} At the outset, we note that courts have concluded that the requirements of
{¶20} Yet, even if Kuhr‘s testimony did not satisfy the requirements of
ii. Res judicata bars any consideration of whether Cook‘s trial counsel was ineffective for failing to challenge Kuhr‘s testimony under Evid.R. 702(B) .
{¶21} Res judicata also precludes Cook from arguing that his trial counsel was ineffective for failing to challenge Kuhr‘s testimony under
Kuhr was manifestly qualified to testify as an expert on the subject of child sexual abuse.
Under
Evid.R. 702 , a witness may be qualified as an expert witness by reason of her “specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony.”Evid.R. 702(B) . As the State aptly notes, the transcript of Cook‘s trial contains over four pages of testimony in which Kuhr detailed her educational background, relevant work history, certifications, publications, compliance with continuing educational requirements, affiliations with professional organizations, experience as an instructor, experience as an expert witness, and experience with victims of child sexual abuse. * * * Kuhr further testified that she is a subject-matter expert in the areas of child abuse, child sexual abuse, and child trauma. * * * Kuhr‘s testimony clearly establishes that, by reason of her education, training, experience, and specialized knowledge, she is an expert on matters of child sexual abuse. * * * Cook‘s trial counselwould almost certainly have failed to disqualify Kuhr as an expert on child sexual abuse * * *.
Cook I, 2020-Ohio-3411, at ¶ 103-104. Thus, in Cook I, we found that the original trial record (specifically Kuhr‘s testimony) contained more than enough information for us to determine that Kuhr satisfied the requirements of
{¶22} Although Cook supported his postconviction petition with evidence dehors the record, this evidence provides no basis to revisit our conclusion in Cook I. Because the trial court‘s decision to exclude Kuhr‘s testimony in Tackett‘s case was based on
iii. Cook has not shown there are substantive grounds for postconviction relief because there are insufficient facts showing that his trial counsel was ineffective for failing to challenge Kuhr‘s testimony under Evid.R. 702(C) .
{¶24} To begin, the Judgment Entry itself, while sufficient in Tackett‘s case, is not particularly probative of the specific issue raised by Cook in this case. It documents that the trial court considered Kuhr‘s proposed testimony, but it does not describe that testimony. Consequently, it is uncertain whether Kuhr‘s proposed testimony was identical to the testimony she offered at Cook‘s trial or whether it differed in some material respect. Furthermore, in the Judgment Entry, the trial court does not expound upon its conclusion that the State “wholly failed to meet its burden to qualify [Kuhr] under Ohio Evidence Rule 702(C).” The Judgment Entry
{¶25} Moreover, Cook failed to attach any additional documentation to his postconviction petition that could fill these informational gaps in the Judgment Entry. Cook did not include copies of either of Tackett‘s motions to exclude Kuhr‘s testimony. Nor did he submit copies of the State‘s response to Tackett‘s motions or Tackett‘s reply in support of her motions. Likewise, Cook neglected to attach a copy of a transcript from the July 29, 2019 hearing on Tackett‘s motions. Cook also failed to provide affidavits from Tackett‘s attorney, Tackett, or any of the other participants at the July 29, 2019 hearing describing what transpired there or offering any insight into the precise nature of the dispute over the reliability of Kuhr‘s proposed testimony. Therefore, from Cook‘s postconviction evidence, it is impossible to determine what Kuhr would have testified to at Tackett‘s trial, how Kuhr‘s proposed testimony compared to her testimony at Cook‘s trial, what Tackett seized on to claim that Kuhr‘s proposed testimony was not reliable, what the State argued in response, and why exactly the trial court concluded that Kuhr‘s proposed testimony did not meet the reliability requirement of
{¶26} Weighed against the Judgment Entry is the information in the original trial record suggesting that, whatever Kuhr‘s testimony might have been at Tackett‘s
{¶27} In addition, Kuhr testified that she was still a licensed social worker and that she had taken “multiple courses on child abuse and child interviewing and
{¶28} With regard to the reliability requirement of
A trial court must exercise a “gatekeeping” duty by testing the basis of proffered testimony for reliability. * * *
The criteria that a trial court should use to test reliability depends on the nature of the testimony. In the well-known case of Daubert v. Merrell Dow Pharmaceuticals, Inc. * * *, the U.S. Supreme Court developed four factors to help test the reliability of testimony based on scientific information. A few years later, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999) the Court revisited the issue and clarified that Daubert‘s factors, to the extent they are relevant, may also be used to test expert testimony that is based on “technical” and “other specialized” information. The larger principle, taught the Court, is that, regardless of the expert testimony‘s epistemological basis, when the issue of reliability is raised, the trial court has the duty to determine whether the testimony has “a reliable basis in the knowledge and experience of [the relevant] discipline.” Id. at 149 (citation omitted). Sometimes, said the Court, “the relevant reliability concerns may focus upon personal knowledge or experience” rather than scientific methodology. Id. at 150.
The principles in Daubert and Kumho have been incorporated into Ohio law. The Ohio Supreme Court, in [a 1998 case], adopted the four Daubert factors for testing scientific testimony. And in [a 2006 case], the Court relied on Kumho to hold that testimony on gang-related activities offered by a qualified detective was admissible under
Evid.R. 702 . The Court decided that in this particular discipline,
knowledge and experience, both of which the detective had, were sufficient guarantors of reliability.
(Citations omitted.) State v. Rosas, 2d Dist. Montgomery No. 22424, 2009-Ohio-1404, ¶ 36-38.
{¶29} Similar to this case, the issue in Rosas was whether the testimony of the State‘s expert witness, a child psychologist with experience working with victims of child sex abuse, met
The field of psychology * * * is a complex admixture of science and art. To the extent that they can, psychologists try to apply the principles of scientific methodology. Yet because their object of study is the human mind, science can take them only so far. This is one of those disciplines, which Kumho mentions, that cannot be encompassed entirely by one category of knowledge—“scientific,” “technical,” or “other specialized.” There is little doubt that Dr. Micelli possesses extensive formal education and broad, deep experience with sexually abused children. Her testimony here establishes this * * *.
After examining the record, we find nothing that would call into question the reliability of her testimony. Her testimony on the behavioral characteristics of sexually-abused children has a reliable basis in the knowledge and experience of the field of psychology, which she has acquired from the classroom and the clinic.
(Citation omitted.) Id. at ¶ 40-41.
{¶30} Although Kuhr is not a psychologist like the expert witness in Rosas, her background in social work and law enforcement renders her no less capable of
{¶31} “When a claim of ineffective assistance of counsel is based on counsel‘s failure to file an objection or file a motion, the [petitioner] must demonstrate that the objection or motion had a reasonable probability of success.” State v. Jones, 10th Dist. Franklin Nos. 18AP-33 and 18AP-34, 2019-Ohio-2134, ¶ 52. “If the [petitioner] fails to demonstrate that there is a reasonable probability that the proposed motion [or objection] would have been granted, counsel is presumed to have been effective * * *.” State v. Thompson, 3d Dist. Marion No. 9-20-35, 2021-Ohio-2979, ¶ 14.
{¶32} Here, the Judgment Entry precluding Kuhr from testifying in Tackett‘s case merely raises the possibility that Cook‘s trial counsel might also have been able to exclude Kuhr‘s testimony at Cook‘s trial based on
{¶33} To summarize, res judicata bars Cook from arguing that his trial counsel was ineffective for failing to challenge Kuhr‘s testimony under
IV. Conclusion
{¶35} For the foregoing reasons, Cook‘s assignment of error is overruled. Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the Union County Court of Common Pleas.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
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