STATE OF OHIO v. ANTHONY LEONARD
No. 98626
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 11, 2013
[Cite as State v. Leonard, 2013-Ohio-1446.]
BEFORE: Jones, P.J., S. Gallagher, J., and E.A. Gallagher, J.
JOURNAL ENTRY AND OPINION; PLAINTIFF-APPELLEE vs. DEFENDANT-APPELLANT; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-554061; JUDGMENT: AFFIRMED
Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
John Martin
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kevin R. Filiatraut
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant, Anthony Leonard, appeals his convictions for rape, attempted rape, and kidnapping. We affirm.
{2} In 2011, Leonard was charged in a five-count indictment with two counts of rape, two counts of kidnapping, and one count of attempted rape; each count contained a sexually violent predator specification. The state alleged that the incident occurred in April 1998.
{3} In May 2012, the matter proceeded to a jury trial; Leonard waived his right to a jury trial on the sexually violent predator specifications. The following pertinent facts were adduced at trial.
{4} “R.M.”1 testified that when he was nine years old he lived with his mother in the area of East 40th Street and Quincy Avenue in Cleveland. As R.M. remembers, on the day in question he was walking from his friend‘s house to his grandmother‘s house. When he discovered that his grandmother was not home, he began to cross East 40th Street to walk back to the friend‘s house. A white Cadillac pulled up and a man got out and snatched R.M., forcing him into the back seat of the car. The man told R.M. not to move. R.M. tried to get out of the car but he was unable to open the back door. The man told R.M. that “if he wanted this to go cool he would keep quiet and keep his head down.”
{5} The man drove around for approximately ten minutes bеfore stopping at a
{6} R.M. testified that he did not get a good look at his attacker because the man kept telling him to put his head down. He described his attacker as a dark-skinned black man who was the same height as R.M. at the time of trial.
{7} R.M. testified that he remembered the car had a red- or burgundy-colored interior and there was a water bottle on the floor. After the man pushed R.M. out of the car, R.M. started screaming. An elderly woman assisted him, giving him a blanket while they waited for the police to arrive.
{8} R.M.‘s mother testified that on the day her son was attacked, she had told him to take out the trash but when he did not return, she called the Cleveland Police and went out looking for him. A couple of hours later, the police came to her apartment and informed her they found R.M. a few blocks away, naked. R.M. was crying and initially refused to talk about what had happened. Eventually, R.M. told his mother, “he peed on me. He peed on me. He tried to make me kiss him. He tried to make me touch him.”
{9} Tracy Douglas, who worked as a nurse at the former Mount Sinai Medical
{10} Detective Karl Lessman was assigned tо the case. He remembered that R.M.‘s mother did not want to pursue the case because her son was so distraught. Det. Lessman was able to develop a vague description of the perpetrator and his car, but was unable to find any suspects. The case then went cold.
{11} Christopher Smith, an analyst with the Ohio Bureau of Criminal Investigation (“BCI“), testified that in March 2006 he analyzed the rape kit after receiving it from the Cleveland Police Department. He located the presence of semen in the oral swabs and trace amounts of semen in the anal swabs. At that time, neither the police nor BCI had Leonard‘s DNA.
{12} BCI then forwarded the rape kit to a lab in Virginia for further testing on the samples to develop a DNA profile. In July 2006, the Virginia lab finished its testing, forwarded its results to BCI, and entered the DNA profile into a national computer database. In October 2006, a detective with the Cleveland Police was notified by BCI that the database had matched Leonard‘s DNA profile to the case.
{13} In August 2011, Detective Lessman was notified of the match. He was
{14} Kelly Ress, a DNA analyst for BCI, testified that she received a sample of Leonard‘s DNA from the Cleveland Police in September 2011, tested the sample, and developed his DNA profile. BCI issued a new report finding that the August 2011 DNA sample from Leonard matched the DNA in the rape kit. In 2012, BCI again tested the samples and found that Leonard could not be excluded as the source of the semen found from the oral swabs.
{15} Leonard‘s wife, Elizabeth Leonard, testified she owned a white Cadillac in 1998 that her husband drove, but it was a two-door with white interior. Ashley Leonard, Leonard‘s stepdaughter, and Rasheem Ellis, a family friend, both testified that Leonard had always behaved appropriately around them and that they trusted him around their respective children.
{16} The jury convicted Leonard of three counts: Count 2, rape, in violation of
{17} Leonard filed a timely notice of appeal and raises three assignments of error for our review:
[I]. Appellant received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Sec. 10, Art. 1 of the Ohio Constitution, because counsel failed to file a motion to dismiss for pre-indictment delay, and failed to ensure that the jury was properly and fully instructed on the elements of rape.
[II.] The trial court plainly erred whеn it instructed the jury on count two that anal rape only required penetration of the anal “opening” and not the anal “cavity.”
[III.] The conviction for anal rape is against the manifest weight of the evidence.
Ineffective Assistance of Trial Counsel
{18} In the first assignment of error, Leonard claims he was denied effective assistance of counsel.
{19} To establish ineffective assistance of counsel, a defendant must demonstrate that counsel‘s performance fell below an objective standаrd of reasonable representation and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant
{20} In evaluating a claim of ineffective assistance of counsel, a court must be mindful that there are countless ways fоr an attorney to provide effective assistance in a given case, and it must give great deference to counsel‘s performance. Id. at 689. Trial tactics and strategies do not constitute a denial of effective assistance of counsel. State v. Gooden, 8th Dist. No. 88174, 2007-Ohio-2371, ¶ 38, citing State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
{21} Leonard‘s claim is two-fold. He claims that his counsel was ineffective because the attorney failed to (1) file a motion to dismiss for pre-indictment delay and (2) make sure the jury was properly instructed. Leonard‘s claim with regard to the jury instructions will be discussed as part of the second assignment of error.
Pre-Indictment Delay
{22} The Ohio Supreme Court has concluded that the delay between the commission of an offense and an indictment, can, under certain circumstances, constitute a violation of due process of law guaranteed by the federal and state constitutions. See State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of the syllabus; State v. Henley, 8th Dist. No. 86591, 2006-Ohio-2728.
{23} The statute of limitations governing a particular crime provides the “primary guarantee against bringing overly stale criminal charges.” State v. Copeland, 8th Dist. No. 89455, 2008-Ohio-234, ¶ 10, citing United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In 1999, the Ohio General Assembly extended the statute of limitations for rape from 6 to 20 years. See
{24} To warrant dismissal on the basis of pre-indictment delay, a defendant must present evidence establishing substantial prejudice. State v. Kemp, 8th Dist. No. 90029, 2013-Ohio-167, ¶ 28, citing State v. Wade, 8th Dist. No. 90029, 2008-Ohio-4574. If the defendant fulfills that burden, then the burden shifts to the state to produce evidence of a justifiable reason for the delay. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829.
{25} Prejudice may not be presumed from a lengthy delay. Copeland at ¶ 13. “In proving substantial prejudice, the defendant must show the exculpatory value of the alleged missing evidence.” Copeland at id., citing State v. Gulley, 12th Dist. No. CA99-02-004, 1999 Ohio App. LEXIS 6091 (Dec. 20, 1999). The mere possibility that memories will dim, witnesses will become inaccessible, or evidence will be lost is not
{26} Leonard claims that he was prejudiced by the delay because (1) key witnesses were unavailable at trial; (2) testifying witnesses admitted their mеmories of the event had faded; (3) the victim‘s complete medical record was not available for trial; and (4) the delay eliminated Leonard‘s ability to challenge the reliability of the DNA. We will deal with each of these claims in turn.
{27} Leonard argues that two witnesses that did not testify at trial, Lila Mills and James Anderson, may have been available to testify if he had been indicted earlier. According to Detective Lessman‘s testimony, Mills assisted R.M. after the rape and Anderson saw R.M. being rеmoved from a white Cadillac. He also claims that the testifying witnesses’ faded memories prejudiced him. But Leonard‘s claims are based on speculation. Leonard has not shown how the testifying witnesses’ recollection of the events would have changed the outcome at trial and speculation on the potential content of lost testimony is insufficient to show prejudice. See State v. Adams, 7th Dist. No. 08 MA 246, 2011-Ohio-5361, ¶ 83, citing State v. Christman, 7th Dist. No. 786, 1999 Ohio App. LEXIS 2486 (May 28, 1999).
{28} Leonard also argues that he was prejudiced because the victim‘s complete medical record was not available for trial. If his complete medical records had been
{29} Finally, Leonard claims that the delay eliminated his ability to challenge the reliability of the DNA match. But Leonard had an independent lab perform its own analysis of the DNA evidence; thе results of that test were not entered into evidence. There was also never any suggestion of impropriety or contamination, other than that made by the defense during closing arguments and the arguments of counsel are not evidence. Moreover, BCI analyst Brenda Geradi testified that (1) DNA does not change over time; “you either get a result or it‘s degraded and we can tell that it‘s degraded,” (2) the sample in R.M.‘s rape kit was not degraded, and (3) the rape kit was appropriately packaged for proper storage conditions.
{30} To support his overall claim that he was prejudiced by the pre-indictment delay, Leonard cites the Ohio Supreme Court‘s decision in Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984). In Luck, the Ohio Supreme Court found that 15 years of
{31} Based on these facts, Leonard has failed to demonstrate actual, substantial prejudice resulting from the state‘s delay in bringing the charges against him. Therefore, we find that Leonard failed to demonstrate that his trial counsel‘s failure to file a motion to dismiss for pre-indictment delay constituted ineffective assistance of counsel. Even if we assume, arguendo, that trial counsel‘s representation fell below an objective standard of reasonableness as a result of his failure to file a motion to dismiss, Leonard has not established he was prejudiced as a result of his trial counsel‘s alleged ineffectiveness or a reasonable probability that the result of the proceeding would have been different had the
Jury Instructions
{32} In the second assignment of error, Leonard argues that the trial court erred when it instructed the jury on the crime of rape. Because Leonard did not object to the jury instructions, we review this claim for plain error. Under
{33} We review a trial court‘s decision on jury instructions for an abuse of discretion. State v. Williams, 8th Dist. No. 90845, 2009-Ohio-2026, ¶ 50. Further, jury instructions are reviewed in their entirety to determine if they contain prejudicial error. State v. Fields, 13 Ohio App.3d 433, 436, 469 N.E.2d 939 (8th Dist.1984).
{34} Leonard claims that the trial court‘s jury instructions defining the term “sexual conduct” were so deficient as to constitute plain error under
{35} As applicable to this case, in 1998,
{36} In 1998,
{37} In 2006, the Ohio legislature modified the definition of “sexual conduct” by substituting the word “opening” for the word “cavity” after the phrase “vaginal or anal.”
{38} Leonard claims that the term “opening” imрlies a lesser form of penetration that includes the surface of buttocks only. But Leonard does not support this assertion with any citations to authority.
{39} However, we need not determine whether penetration into the anal cavity is distinct from penetration into the anal opening. R.M. testified that Leonard “stuck his penis in me” and “stuck [his penis] in my behind, sir. My anus.” Therefore, the evidence produced by the state was sufficient to show the element of sexual conduct under either term. Thus, Leonard is unable to show that the trial court committed plain
{40} As briefly mentioned, within the first assignment of error Leonard claimed he was prejudiced by defense counsel‘s failure to object to the definition of sexual conduct in the jury instructions. Having already found that there was no plain error committed with regard to the jury instructions, this argument also fails.
{41} Leonard further claimed that his counsel was ineffective for failing to ask for a jury instruction on attempt as to Count 2. But failure to request instructions on lesser offenses is a matter of trial strategy and does not establish ineffective assistance of counsel. State v. Griffie, 74 Ohio St.3d 332, 333, 1996-Ohio-71, 658 N.E.2d 764. The record supports the conclusion that the defense‘s theory was that Leonard did not perpetrate the crimes against R.M.; thus, it could have been a strategic defense option not to give the jury the opportunity to find Leonard guilty of another, albeit lesser, crime. See State v. Murphy, 4th Dist. No. 07CA2953, 2008-Ohio-1744.
{42} In light of the above, the first and second assignments of error are overruled.
Manifest Weight of the Evidence
{43} In the third assignment of error, Leonard argues that his conviction on Count 2, rape, is against the manifest weight of the evidence.
{44} When reviewing a claim challenging the manifest weight of the evidence, the court, after reviewing the entire record, must 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 mаnifest
{45} Leonard claims that his conviction should be reversed on these grounds because there was no physical evidence of anal rape; therefore, the jury lost its way in finding him guilty of that count. To support his position, Leonard points to the fact that no testable quantities of semen were recovered by the rape kit and to the testimony of the nurse, Tracy Douglas, who stated that she found no signs of trauma on R.M.‘s rectum. Therefore, according to Leonard, in weighing this lack of physical evidence against R.M.‘s testimony, the jury should have found him not guilty. We disagree.
{46} As an initial matter, there is no requirement, statutory or otherwise, that a victim‘s testimony be corroborated as a condition precedent to a rape conviction. State v. Sklenar, 71 Ohio App.3d 444, 447, 594 N.E.2d 88 (9th Dist.1991), citing State v. Gingell, 7 Ohio App.3d 364, 365, 455 N.E.2d 1066 (1st Dist.1982); State v. Love, 49 Ohio App.3d 88, 91, 550 N.E.2d 951 (1st Dist.1988). “Sexual conduct” does not require
{47} R.M. testified that a stranger pulled up in a white Cadillac and grabbed him. The man forced R.M. into the backseat of his car and drove around for 10-15 minutes. R.M. was unable to get out of the car because the back doors were locked and the car had a red or burgundy interior. The man kept telling R.M. to keep his head down and keep quiet. The man eventually got into the backseat of the car with R.M., forced the young boy to perform oral sex on him and then, according to R.M., “stuck his penis in me * * * stuck [his penis] in my behind * * * [m]y anus.”
{48} Although nurse Douglas testified that she did not detect any semen on R.M.‘s body during the examination, the rape kit evidenced trace amounts of semen on the rectal samples. BCI analyst Christopher Smith testified he sent the anal swabs for further testing because he had found the trace amounts of semen on the rectal samples. He explained that trace amounts of semen “mеan that we identified a lesser amount of semen present or lesser amount of sperm cells on the microscope slide. * * * The rectal samples and the oral samples both had semen identified. The oral sample had more semen present on the slide * * * than the rectal samples; however, both had semen
{49} The anal swabs were tested, but no DNA profile was obtained from them. A DNA profile was obtained from the oral samples, however, and it matched Leonard‘s DNA. This is consistent with R.M.‘s testimony that it was the same person who forced him to perform oral sex on him and who digitally and anally raped him. R.M.‘s testimony is further bolstered by Leonard‘s wife, who confirmed that she owned a white Cadillac in 1998 that Leonard drove. Although, according to her, the car was a two-door with a white interior, we recognize that the trier of fact was able to consider the credibility of the individual witnesses and reach a conclusion based on the totality of the evidеnce.
{50} After reviewing the entire record and weighing the evidence and all reasonable inferences, including the credibility of the witnesses, we cannot say that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
{51} The third assignment of error is overruled.
{52} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is оrdered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR