STATE OF OHIO, PLAINTIFF-APPELLEE, v. CLINTON A. HOSECLAW, DEFENDANT-APPELLANT.
CASE NO. 1-12-31
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
August 12, 2013
2013-Ohio-3486
Appeal from Allen County Common Pleas Court Trial Court No. CR2011 0415 Judgment Affirmed
Christopher T. Travis for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-appellant, Clinton A. Hoseclaw, appeals the Allen County Court of Common Pleas’ judgment entry of conviction and sentence. For the reasons that follow, we affirm.
{¶2} On December 15, 2011, the Allen County Grand Jury indicted Hoseclaw on Count One of unlawful sexual conduct with a minor in violation of
{¶3} On December 22, 2011, Hoseclaw was arraigned, entered pleas of not guilty, and was appointed trial counsel. (Doc. Nos. 9, 52).
{¶4} On January 9, 2012, Hoseclaw filed a motion to suppress statements he made to law enforcement. (Doc. No. 13). On February 7, 2012, the trial court held a hearing on the motion, and, on March 27, 2012, the trial court overruled the motion. (Doc. No. 44).
{¶5} On March 26-27, 2012, a jury trial was held wherein the jury found Hoseclaw guilty Count One of unlawful sexual conduct with a minor. (Doc. Nos. 45, 52). However, the jury could not reach a verdict on Count Two of rape, so the trial court declared a mistrial as to that count. (Doc. No. 52); (Mar. 26-27, 2012 Tr., Vol. II at 461-467).
{¶7} On July 23, 2012, Hoseclaw filed a notice of appeal. (Doc. No. 107). Hoseclaw raises three assignments of error for our review, all relating to the second trial on the rape charge.
Assignment of Error No. I
The trial court erred to the prejudice of appellant/defendant by entering a guilty finding upon a verdict that was against the manifest weight of the evidence.
{¶8} In his first assignment of error, Hoseclaw argues that his rape conviction was against the manifest weight of the evidence. In particular, Hoseclaw argues that the victim was not credible, because she did not make any allegations against him until nearly nine months after the alleged incident. He also argues that the victim was not credible, because, after the alleged rape occurred,
{¶9} In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “‘[weigh] the evidence and all reasonable inferences, consider the credibility of witnesses and [determine] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).
{¶10} The criminal offense of rape is codified in
{¶11} The victim, K.S., testified that, at the time of the second trial, she was fourteen (14) years old, but she had just turned thirteen (13) years old prior to
{¶12} K.S. testified that Hoseclaw was driving and she was seated in the passenger seat. (Id. at 194). According to K.S., they drove out Leland Avenue, where they live, and turned left at Jamison Avenue, though she was not paying attention while Hoseclaw was driving since she was texting and listening to her music. (Id. at 194-195, 197-198). She testified that she was not paying attention after Hoseclaw turned left onto Jamison Avenue, and she figured that Hoseclaw was going to the Speedway on Cable Road rather than the Speedway on Jamison Ave. (Id. at 195). According to K.S., the next thing she heard was Hoseclaw say, “Oops, took a wrong turn,” and when she glanced up, they were parked in an alley, and Hoseclaw was coming over onto her side of the seat. (Id. at 195-196). She testified that Hoseclaw came over on her side of the seat, knocking her cell
{¶14} According to K.S., Hoseclaw then drove her home, she gave her mom the subs, her mom gave her a sub sandwich, and she went up to her bedroom and closed the door. (Id. at 211-213). K.S. testified that, as soon as she entered her bedroom, she just sat down against the bedroom door and cried for five to ten minutes. (Id. at 214). She testified that, when she changed her clothes, she noticed blood on her underwear. (Id. at 214-215). K.S. testified that it was more than spots of blood but also not like she had started her period, either. (Id. at 215). She testified that she threw her clothes away, took a shower, and did not tell anyone what happened. (Id.). K.S. testified that, in June 2011, she told her mom’s best friend, Stephanie, about the rape after she had a bad dream about the rape at Stephanie’s house. (Id. at 218-219). K.S. testified that Stephanie is like a second mom and confidant. (Id. at 219-220). K.S. testified that she did not want to tell her mom because she did not want to cause her mom, who suffers from Lupus, to be hospitalized because of the stress. (Id. at 213, 220). She testified that she thought Stephanie would keep her secret, but, after K.S. returned from summer camp, her mom asked her if Hoseclaw raped her. (Id. at 221-222). After K.S. told
{¶15} On cross-examination, K.S. testified that it was approximately three or four minutes from the time she entered Hoseclaw’s vehicle to the time Hoseclaw stated, “Oops, wrong turn.” (Id. at 232). K.S. testified that, during the rape, her cell phone fell on the floor of the vehicle in front of her, and she did not pick her cell phone back up until she arrived home. (Id. at 235). She testified that she stayed in her bedroom the rest of the night after getting back home. (Id. at 236). She testified that she threw her clothes away in a trash can in her bedroom, and she eventually emptied out the can when it was garbage night, which was a Tuesday. (Id. at 237-238). K.S. explained that she did not think anyone would believe her since her best friend, Mona and Paul’s daughter, lied about boys to K.S.’s mom. (Id. at 240). K.S. testified that, by the time they reached Subway it was “[a]lmost all the way dark.” (Id. at 242). K.S. testified that she never told
{¶16} Stephanie Davenport testified that she has never met Hoseclaw, but she knows K.S. and became acquainted with her through K.S.’s father who worked at Domino’s pizza with a friend of hers. (Id. at 253). Stephanie testified that she has been good friends with K.S.’s mother, Antoinette, for the last six years. (Id. at 254). Stephanie testified that she treated Antoinette’s children as her own, and she spent holidays with the family and bought them presents, and
{¶17} Antoinette testified that she is the biological mother of K.S., who was born in September 1997, and K.S. was thirteen years old and in the seventh grade in October 2010. (Id. at 275-276). Antoinette testified that, in October
{¶18} Lima Police Detective Steven Stechschulte testified that, after Officer Tiffany Najmowski contacted him about the rape, he spoke with Hoseclaw on Friday, July 29, 2011, and Hoseclaw denied knowing K.S. (Id. at 295-297). After Stechschulte told Hoseclaw that he was aware of Hoseclaw’s relationship with someone living a couple doors down from K.S., Hoseclaw admitted that he knew K.S.’s brother but said he did not know K.S. that well. (Id. at 298). Hoseclaw denied having sex with K.S. and did not have any response when Stechschulte asked about possible DNA evidence in Hoseclaw’s vehicle. (Id.). Stechschulte testified that he then arrested Hoseclaw for suspicion of rape. (Id. at 299). Stechschulte testified that, on Monday, August 1, 2011, when Hoseclaw was brought to the Sheriff’s Department for booking, a corrections officer informed him that several detainees wanted to speak with him regarding
{¶19} Stechschulte testified that, at the time of the incident, Hoseclaw was living at 169 South Dewey Avenue in Lima, about a block away from Lima Memorial Hospital. (Id. at 308). Stechschulte testified that he located Hoseclaw’s
{¶20} Lima Police Officer Gregory Adkins testified that he collects physical evidence at crime scenes for the police department. (Id. at 336-337). He testified that he helped Stechschulte remove the front passenger seat from Hoseclaw’s vehicle and brought it back to the police department. (Id. at 337-338). Adkins testified that Stechschulte placed the seat in the property room at the police department until they had further instruction from The Bureau of Criminal Investigations (“BCI”). (Id. at 339). Adkins testified that BCI told them to send the upholstered part of the seat, not the entire seat, so he cut the upholstered part from the seat frame, which he identified as State’s exhibit three. (Id. at 340). Adkins identified State’s exhibit four as the seat cushion upholstery and State’s exhibit three as the back rest upholstery. (Id. at 345-346). Adkins identified State’s exhibit five as a buccal DNA swab he took from Hoseclaw. (Id. at 347-348).
{¶21} Peter James Tassi, Jr., a forensic biologist at BCI, testified that he located sperm cells on the back portion of the seat (State’s exhibit three). (Id. at 354, 358, 364). He testified that further analysis was done at the lab to determine if the sperm cells matched the submitted DNA sample (Hoseclaw’s DNA), but he did not perform that testing. (Id. at 365). On cross-examination, Tassi testified
{¶22} Raymond Peoples, a forensic scientist in the DNA section of BCI, testified that he compared samples from three swabbings of the car seat, one of which was the semen stain identified by Tassi. (Id. at 380, 385-386). Peoples testified that he did not get any profile for the two blind swabs; however, he obtained a profile from the semen stain, and it was consistent with Hoseclaw’s DNA. (Id. at 386). Peoples identified State’s exhibit nine as a copy of his report. (Id. at 385); (State’s Ex. 9).
{¶23} Thereafter, State’s exhibits one through nine were admitted into the record without objection. (Id. at 397). The defense moved for acquittal pursuant to
{¶24} Hoseclaw argues that the verdict was against the manifest weight of the evidence since the victim, K.S., was not credible, pointing to several uncontested facts. First, Hoseclaw argues that K.S. was not credible because she waited nearly nine months to tell anyone about the incident. While this is true, K.S. explained that she did not tell anyone because she did not think anyone would
{¶25} Next, Hoseclaw argues that K.S. was not credible because she claims that, immediately after the incident, she did not attempt to flee or call anyone even though she was alone in the vehicle with her cell phone. It is true that K.S. testified that she did not flee the vehicle or attempt to call anyone on her cell phone after the rape occurred; however, K.S. gave the same explanation for this behavior—she did not think anyone would believe her. Furthermore, K.S. testified that Hoseclaw threatened to harm her and her family if she told anyone what happened. (June 25-26, 2012 Tr. at 208). Besides the overwhelming shock that K.S. felt from the rape, Hoseclaw’s threat may very well have kept her from telling anyone, at least immediately after the incident. The jury was entitled—and duty bound—to determine K.S.’s credibility in this matter. State v. Curtis, 8th Dist. Cuyahoga No. 48011, *2 (Nov. 15, 1984) (jury was free to believe the victim’s testimony that she was afraid to escape from her attacker while he was in the shower). We are not convinced that this fact raises a sufficient issue with
{¶26} Finally, Hoseclaw argues that K.S.’s credibility is questionable given that she discarded her clothing and took a shower thereby destroying important physical evidence. We are not persuaded by this argument, either. It is completely understandable that a rape victim would want to destroy or discard the clothing she was wearing during a rape—having that clothing around would serve as an unwanted reminder of what happened. It is not uncommon that rape cases lack physical evidence, and physical evidence is not required to prove the rape occurred; testimony of a victim is sufficient. State v. Banks, 71 Ohio App.3d 214, 220 (3d Dist.1991). Furthermore, it is not uncommon for victims of sexual assault to bathe or shower afterwards to cleanse themselves—literally and even psychologically—from the attack. K.S.’s behavior is not abnormal and is understandable behavior, which does not significantly impact her credibility.
{¶27} The jury had ample reasons to believe K.S. and disbelieve Hoseclaw. K.S. consistently maintained that Hoseclaw raped her in his vehicle. Hoseclaw’s story, on the other hand, changed several times. When Hoseclaw was first asked about the rape allegation, he denied knowing K.S. altogether. (June 25-26, 2012 Tr. at 297-298). Then, when Stechschulte told Hoseclaw that he knew Hoseclaw knew Mona and Paul who lived near K.S. and her family, Hoseclaw admitted that
{¶28} Hoseclaw also stated that K.S. was with him before on multiple occasions, getting movies at his house, picking up Speedway, or picking up Eric. (State‘s Ex. 2). K.S. testified, however, that, as of October 2010, she had only known Hoseclaw for about a month, she never spent time with Hoseclaw except with a group of people, and she was never at his house. (June 25-26, 2012 Tr. at 187-188). Hoseclaw admitted taking K.S. to Subway, though he thought the date was not October 28th since he was busy that night. (State‘s Ex. 1-2). He also
{¶29} Based upon our review of the evidence, we are not persuaded that the jury clearly lost its way creating a manifest injustice. There was evidence upon which the jury could have reasonably concluded that Hoseclaw purposefully compelled K.S. to engage in sexual conduct by force.
{¶30} Hoseclaw‘s first assignment of error is, therefore, overruled.
Appellant was deprived of his right to effective assistance of counsel as provided pursuant to the 14th and 6th Amendments to the U.S. Constitution.
{¶31} In his second assignment of error, Hoseclaw argues he was denied effective assistance of trial counsel when trial counsel failed to object to irrelevant, prejudicial, or otherwise inadmissible evidence that the State used to bolster the victim‘s credibility.
{¶32} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment. Strickland, 466 U.S. at 687. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the errors complained of must amount to a
{¶33} Initially, we note that whether to object to the admission of testimony is generally a matter of trial strategy and not grounds for ineffective assistance. State v. Schlosser, 3d Dist. No. 14-10-30, 2011-Ohio-4183, ¶ 31. As the Court in State v. Hartman observed, “‘[b]ecause objections tend to disrupt the flow of a trial, [and] are considered technical and bothersome by the fact-finder, * * * competent counsel may reasonably hesitate to object in the jury‘s presence.‘” 93 Ohio St.3d 274, 296 (2001), quoting State v. Campbell, 69 Ohio St.3d 38, 53 (1994) (internal quotations omitted). With that in mind, we will address the specific instances where Hoseclaw argues that trial counsel should have objected.
{¶34} The first instance where Hoseclaw alleges that defense counsel was ineffective for failing to object to allegedly inadmissible hearsay was the following:
Q: Okay. Why didn‘t you tell your mom?
A: I really don‘t talk to her about boys or anything like that.
Q: Okay. Did you eventually tell somebody what happened to you, [K.S.]?
A: Yes, I did. (June 25-26, 2012 Tr. at 217-218).
Q: Okay. And give the exact words that * * * [your mother] used with you to ask you about it?
A: She -- as soon [sic] I walked in the door, she‘s like -- after I sat down she asked me, “Did [Hoseclaw] rape you?”
Q: Okay. And what did you tell her.
A: I told her yes. (Id. at 222).
{¶36} The third instance where Hoseclaw alleges that defense counsel was ineffective for failing to object to allegedly inadmissible hearsay was the following, referring to a conversation K.S. had with the law enforcement officer that responded to the reported rape:
Q: Did you tell him what happened?
A: Yes. (Id. at 223).
{¶37} The fourth instance where Hoseclaw alleges that defense counsel was ineffective for failing to object to allegedly inadmissible hearsay was the following, referring to a conversation K.S. had with another law enforcement officer:
Q: Okay. But the primary person you were talking to would have been Officer Tiffany?
A: Yes.
* * *
Q: Okay. And did you go through all these details with her?
A: Yes. (Id. at 246).
{¶38} Hoseclaw‘s arguments are meritless. To begin with, the fourth instance is cross-examination conducted by his trial counsel. Trial counsel was not ineffective for questioning the victim concerning whether or not she shared the details of the offense to the reporting officer. This was clearly a trial strategy to question her credibility, especially in light of the fact that she took over nine months to come forward.
{¶39} The first and third instances do not involve hearsay. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{¶40} Next, Hoseclaw argues that trial counsel was ineffective for failing to object to irrelevant and prejudicial evidence of the victim‘s lack of sexual history. The line of questioning was as follows:
Q: Okay. Again, as graphic as this may seem, how do you know his penis was inside your vagina, [K.S.]?
A: Because I can feel it.
Q: Okay. Did you know what that felt like prior to this time?
A: No. (Id. at 206).
Hoseclaw argues that trial counsel was ineffective for failing to object to this irrelevant and inadmissible testimony concerning the victim‘s past sexual experiences. This argument lacks merit. The context of the testimony reveals that the State was seeking to establish penetration, which is required to show sexual conduct, an essential element of rape.
{¶41} Finally, Hoseclaw argues that trial counsel was ineffective for failing to object to testimony concerning the emotional impact the rape had upon the victim. The testimony at issue is the following:
Q: Okay. Was there anything that you noticed during that school year of 2010 when [K.S.] was in 7th grade, any changes in her behavior?
A: A lot. She really got to the point where she didn‘t -- she wasn‘t as excited about school. She didn‘t want to join the sports like she had the year before. She didn‘t want to do anything. She became more defiant toward her parents and toward people. She got closed up with me to where she wouldn‘t really come out and talk to me as much or just her whole attitude had changed. She was not the [K.S.] that I knew. (June 25-26, 2012 Tr. at 264).
{¶42} Hoseclaw cites State v. Presley, 10th Dist. Franklin No. 02AP-1354, 2003-Ohio-6069, in support of his argument that this testimony was overly prejudicial and inflammatory. The victim in Presley testified that she had nightmares and both she and her mother tried to commit suicide as a result of the rape. Id. at ¶ 86. The testimony in this case is much less inflammatory than the
{¶43} Hoseclaw‘s second assignment of error is overruled.
Assignment of Error No. III
The trial court erred to the prejudice of the appellant/defendant by admitting irrelevant hearsay evidence of prior consistent statements of an alleged victim.
{¶44} In his third assignment of error, Hoseclaw argues that the trial court abused its discretion by admitting additional hearsay evidence. He argues that even if the evidence was not hearsay it was nevertheless inadmissible under
{¶46} A trial court‘s decision whether to admit demonstrative evidence is reviewed for an abuse of discretion. State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 82. An abuse of discretion is more than an error of judgment; rather, it implies that the trial court‘s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶47} Hoseclaw argues that the following testimony was inadmissible hearsay, which the trial court should have excluded:
Q: * * * Stephanie, I‘d like to direct your attention specifically to last summer * * * [a]nd ask if [K.S.] made a revelation to you that was somewhat startling and out of the ordinary?
A: Yes. She was at my house spending the night so was the other kids, the other two (2) * * * her and her sister and brother had came to my house to spend the night. We took a trip to Wal-Mart. A
friend of mine, Rita, went with us. Rita had went into Wal-Mart to pick some things up that she needed for the house. That is when [K.S.] and me were sitting in my van and she proceeded to kind of mumble words to me. I didn‘t try to push her. I figured when she was ready to talk she would talk. She then proceeded to tell me -- [DEFENSE COUNSEL]: Objection. Hearsay.
[PROSECUTOR]: Your honor, we are not offering it for it‘s [sic] truth.
THE COURT: It‘s --
[PROSECUTOR]: We‘re offering it --
THE COURT: It‘s not being offered for the truth of the matter --
[PROSECUTOR]: for the circumstances of how the --
THE COURT: It‘s by --
[PROSECUTOR]: -- the revelation was made.
THE COURT: -- being offered for the fact that she said it, if she said it.
[DEFENSE COUNSEL]: And that‘s the question that should be asked, not what she said. She‘s not -- she does not get to repeat word for word the hearsay.
[PROSECUTOR]: Your honor, first of all, I‘m asking about a statement made by [K.S.]. She‘s not an out of court declarant. She already testified. So by definition [sic] is not hearsay under the evidence rules.1 THE COURT: Overruled. You may testify.
A: (BY THE WITNESS) she proceeded to tell me that she was raped. And as far as getting into any other detail like that with her, I did not. I did, however, ask her that she needed to speak with her mother on the circumstances of what went on. And that I knew she would be leaving for a camp or whatever and that if she didn‘t let her mother know so that the proper steps could be tooken [sic] that I would in turn let her mother know what she had just confided in me about.
* * *
Q: When she reported this to you did she, in fact, though characterize it as a rape versus a consensual sexual encounter?
A: Yes. (June 25-26, 2012 Tr. at 256-259).
{¶48} The trial court did not abuse its discretion by allowing the witness to testify concerning the victim‘s statement that she was raped since it was offered
{¶49} Hoseclaw‘s third assignment of error is, therefore, overruled.
{¶50} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr