State v. TurnerState v. Turner
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Paul A. Dobson, Wood County Prosecuting Attorney, and Heather M. Baker, Assistant Prosecuting Attorney, for appellee.
James C. Young, for appellant.
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YARBROUGH, J.
I. Introduction
{¶ 1} Paul Turner appeals from a judgment of the Wood County Court of Common Pleas, following a jury trial, that convicted him of one count of gross sexual imposition in violation of
{¶ 2} Appellant was indicted by the Wood County Grand Jury on one count of gross sexual imposition in violation of
No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.
Appellant pleaded not guilty, and the matter was set for a jury trial.
{¶ 3} The testimony at trial established that on October 5, 2008, at around 2:00 a.m., appellant invited the victim to his dorm room on the campus of Bowling Green State University (BGSU). This was not an unusual occurrence as the two had known each other for several years, and, in fact, had dated for a short time while they were in high school. The victim, who was also a student at BGSU, testified that when she arrived, she noticed that appellant appeared intoxicated. Appellant offered her an alcoholic beverage, which she declined at first, and which she ultimately feigned drinking when appellant persisted.
{¶ 4} For the next 15 to 30 minutes, appellant and the victim sat and listened to music and watched television. Appellant then began rubbing the victim‘s leg. The victim testified,
I tried to blow it off at first because I thought he would stop, and he didn‘t stop. So I asked him to stop. And he was just like why should I stop? And I said because I want you to. And that didn‘t make him stop. And so he started to like put his hand under my shirt and started touching my breast. And I tried to push his hand away, but, like, he just kept on it. And I asked him to stop, like, numerous times. And all he would ever say was, like why should I stop? I would just tell him because I want you to stop. And he told me, like, that wasn‘t a good enough reason for him to stop. So after touching my breast for a while, he started touching my butt and, like, he started in between my legs. And I told him why you doing this, like, we‘re friends. And he, like, said, like, you know, we‘re not friends because I would die for my friend, and all I‘m trying to do is fuck my ex-girlfriend. And I tried to, like, get up, and he like grabbed my arms and, like, he like had my arms like this with, like, one of his arms and, like, with the other hand like he was still, like, touching on me.
{¶ 5} The state questioned the victim in more detail, during which she reaffirmed that she continually told appellant no and stop, but he would not stop. She further clarified that when appellant touched her between her legs, he was touching her vaginal area on top of her clothing.
Q And at one point he grabbed your arms?
A Yes.
Q Did you feel like you could get away from him?
A No. I tried to, like, pull his arms off me, but he was stronger than me.
On cross-examination, the victim conceded that appellant never said anything to threaten her. However, on redirect, she testified,
Q You started to explain to [defense counsel] that you felt like [appellant] was forcing you to do something when he was grabbing your arms. What were you trying to do when he was grabbing your arms?
A Push his arms away.
Q And where was he touching you at that point in time?
A When he grabbed my arms?
Q Yes.
A When he grabbed my arms, he was like under my shirt to - - like, he, at times he grabbed my arms. Like, he would touch pretty much everywhere, like in between my legs, under my shirt, and my butt.
{¶ 7} After about 15 to 20 minutes of this touching, appellant received a phone call from his roommate, asking to be let into the building. This ended the encounter. The
{¶ 8} That afternoon, the victim‘s roommate called the campus police, and the victim agreed to meet with them to describe the earlier events. The next day, the victim decided that she wanted to press charges against appellant. However, the victim testified that she was afraid for her safety because appellant knew where she lived, both at home and at school, and she was afraid of what the consequences would be for pursuing the criminal charges. As a result, the victim obtained a civil protection order against appellant. The protection order was entered into evidence.
{¶ 9} The state next called Officer Chris Pearcy as a witness. Pearcy was the officer who first spoke with the victim. After an initial objection and sidebar discussion regarding hearsay, Pearcy testified,
[The victim] had stated that approximately 2 a.m. on the date of October 5th she had been contacted by [appellant] to come over to his room in Rogers residence hall, which she did. Upon arriving, she stated that he was acting funny, she believed he was drunk; she later made comments to the fact he was drunk. They were hanging out together for a while, for approximately 20 to 30 minutes, listening to music, watching some TV, at which point he pulled out a bottle of Seagram‘s liquor and poured her a glass, suggested that she drink it. She stated she didn‘t really want to drink it, so she pretended she was drinking it, set it aside, at which point
[appellant] started making advances towards her, began touching her on her thigh, touching her vaginal area over her pants and was also touching her underneath her shirt, underneath her bra and her breasts. She stated that he was holding her hands, preventing her from resisting. She told him multiple times to stop, at which point he would say give me a good reason to stop. At which point she said something to the effect of I don‘t feel comfortable with what‘s going on, I don‘t want to have any kind of this activity, at which point he stated to her that‘s not a good enough reason for me to stop. She stated at one point she got up to leave the room.
Here, the court interrupted the testimony, and instructed the state to move on to another question.
{¶ 10} Pearcy testified that as a result of this information, he asked the victim to provide a written statement of the incident. The written statement was entered into evidence by the defense. Pearcy also testified that they conducted a follow-up interview with the victim the next day, during which her recounting of the events was consistent with the earlier interview and with the written statement. The state then asked,
Q You mentioned a little earlier that [the victim] told you that [appellant] had grabbed her arm. Did she complain of any injuries at the time?
[DEFENSE COUNSEL]: Objection, Your Honor. Hearsay. This should have come up.
A When we talked to her on October 6th, she did not have any visible injuries; however, she complained that [appellant] had during the incident - -
THE COURT: Hang on. Can you just summarize?
A Sure. She had no visible injuries, soreness in her arms where he had grabbed her.
THE COURT: Thank you.
{¶ 11} The focus of the examination then switched to Pearcy‘s interactions with appellant. Pearcy testified that he, along with Detective Scott Sauer, first contacted appellant in his room in Rogers residence hall, and asked him if he would be willing to come back to the BGSU police station to speak with the officers. Appellant agreed and followed the officers to the station. There, appellant admitted to touching the victim in a manner consistent with her testimony. In addition, Pearcy testified that appellant initially admitted that he heard the victim say stop, but later in the interview changed his statement and said that he did not hear her say stop. Pearcy further testified that appellant admitted to grabbing the victim‘s arm, but that he denied ever striking her.
{¶ 12} Appellant was asked to complete a written statement, which he returned later that day. Appellant‘s written statement was entered into evidence. Pearcy testified that the main inconsistency between the written statement and the initial interview was
She never told me to stop, or said she didn‘t want to do anything. Her only words against what I was doing was We shouldn‘t be doing this, you don‘t even like me. I proceeded to kiss on her neck and sayed [sic] to her, I don‘t like anybody. We continued but then she began pulling away. I tried to continue but she was pulling away. So I stopped and said, Ok, I‘ll leave you alone!
{¶ 13} The state‘s final witness was Detective Sauer. In response to the state‘s invitation to recount what he learned from his interview with the victim, Sauer testified, without objection,
She apparently was invited to Mr. Turner‘s room. And when she got there, apparently he appeared to be intoxicated to her. He offered her some type of a drink. To my knowledge she put it up to her lips but did not drink. That was my understanding. He did apparently also grab at her, didn‘t strike her, didn‘t punch her or anything like that but did physically touch her. He placed his hand on the outside of her pants in the area of her vagina and untucked her shirt and put his hands up her shirt and underneath her bra.
{¶ 15} Upon conclusion of the state‘s case, appellant moved for acquittal under
{¶ 16} Following closing arguments, the trial court provided instructions to the jury, without objection from either party. The jury deliberated and returned a verdict of guilty. The trial court sentenced appellant on March 1, 2011.
B. Assignments of Error
{¶ 17} Appellant now timely appeals, asserting seven assignments of error:
- THE COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT WHEN IT PERMITTED THE STATE TO INTRODUCE EVIDENCE OF AN ALLEGED APOLOGY, A CIVIL PROTECTION ORDER VIOLATION AND OTHER EXTRANEOUS EVIDENCE THAT WERE MEANT TO UNFAIRLY PREJUDICE THE JURY INTO RETURNING A GUILTY VERDICT, ALL OF WHICH
VIOLATED RULES 403, 404(B), R.C. 2945.59 AND APPELLANT‘S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS.- THE APPELLANT WAS DENIED DUE PROCESS WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON VOLUNTARY CONSENT AFTER THE EVIDENCE ESTABLISHED THAT THE VICTIM ENTERED APPELLANT‘S DORM ROOM AT 2:00 A.M., FEIGNED INTOXICATION AND REMAINED ON THE PREMISES; THEREBY SHOWING SHE WAS WILLING TO CONTINUE ENGAGING IN PETTING WITH THE APPELLANT.
- GIVEN THE APPELLANT‘S CONFESSION WAS, INTER ALIA, THE PRODUCT OF AN ILLEGAL DETENTION AND SUBSEQUENT ARREST AND FOR THAT REASON WAS INVOLUNTARY, THEN IT FOLLOWS APPELLANT WAS DENIED DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL WHEN NO MOTION TO SUPPRESS WAS FILED TO RENDER THE CONFESSION INADMISSIBLE.
- THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS SUBSTANTIALLY AND UNFAIRLY PREJUDICED BY HIS TRIAL COUNSEL‘S ADVICE TO HIM NOT TO TESTIFY AND THE FAILURE NOT TO (1) CALL HIS ROOMMATE AS A WITNESS, (2) PRESENT EVIDENCE THAT
WAS AVAILABLE TO THE DEFENSE TO PROVE THE AFFIRMATIVE DEFENSE OF CONSENT, AND (3) REQUEST A LESSER INCLUDED OFFENSE INSTRUCTION; ALL OF WHICH CONSTITUTED A DEFICIENT PERFORMANCE WITHIN THE MEANING OF STRICKLAND V. WASHINGTON IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT. - THE VERDICT FINDING APPELLANT GUILTY OF GROSS SEXUAL IMPOSITION WAS NOT SUPPORTED BY EVIDENCE SUFFICIENT TO JUSTIFY A FINDING OF GUILT BEYOND A REASONABLE DOUBT, WHICH VIOLATED APPELLANT‘S RIGHT TO DUE PROCESS.
- THE GUILTY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW.
- THE CUMULATIVE EFFECT OF THE ERRORS IN THE TRIAL VIOLATED DUE PROCESS AND RENDERED THE TRIAL FUNDAMENTALLY UNFAIR.
II. Analysis
A. The Trial Court‘s Evidentiary Rulings Were Not an Abuse of Discretion
{¶ 18} In his first assignment, appellant argues that the trial court erred when it allowed testimony regarding appellant‘s alleged apology and the issuance of the civil protection order, and its alleged subsequent violation.
{¶ 20} Here, appellant contends the trial court abused its discretion because (1) the contested evidence was not relevant under
1. Appellant‘s Apology
{¶ 21} As it relates to the alleged apology, we first note that no objection was made to the victim‘s testimony.1 Errors that arise during a trial that are not brought to
{¶ 22} Appellant first argues that the testimony is not relevant. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
{¶ 23} Appellant next argues that the apology should have been excluded under
was not received by the prosecution or turned over to the defense. However, the issue of spoliation is not before this court.
2. Civil Protection Order
{¶ 24} Turning to the civil protection order, we find that the evidence concerning it is relevant. The circumstances surrounding the civil protection order, including that the victim was fearful of her safety and that appellant allegedly violated it, tend to make it more probable that appellant did the contested acts.
{¶ 25} Appellant argues, however, that the evidence of his alleged violation of the civil protection order is inadmissible because it violates
{¶ 26} Specifically, appellant argues that from this evidence the jury could infer that [he] was dangerous and that his family, at the very least, posed a risk of danger to the victim. More importantly the admission of this evidence permitted the jury to infer that [appellant] had threatened [the victim] in the room. In opposition, the state argues that the violation of the civil protection order corroborated appellant‘s statements to the victim that he would get it the next time, which evidenced appellant‘s motive or intent. The state also argues that the testimony was circumstantial evidence of the threat of
{¶ 27} Finally, appellant argues that even if the evidence of the civil protection order is relevant and admissible under
{¶ 28} [R]elevant evidence, challenged as being outweighed by its prejudicial effects, should be viewed in a light most favorable to the proponent of the evidence, maximizing its probative value and minimizing any prejudicial effect to one opposing admission. State v. Frazier, 73 Ohio St.3d 323, 333, 652 N.E.2d 1000 (1995). Here, we cannot say that the trial court abused its discretion in determining that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Any prejudicial effect caused by the evidence concerning either its issuance or its violation was minimized by the fact that the court did not permit testimony of the details surrounding how the civil protection order was obtained or violated.
B. No Plain Error Where Instructions Were Not Given on Consent or Sexual Imposition
{¶ 30} For his second assignment of error, appellant argues that he was entitled to jury instructions on consent and on the lesser-included offense of sexual imposition. A criminal defendant has a right to expect that the trial court will give complete jury instructions on all issues raised by the evidence. State v. Williford, 49 Ohio St.3d 247, 251, 551 N.E.2d 1279 (1990). Appellant acknowledges, however, that no objection was made at the trial.2 On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.
{¶ 31} Appellant first argues that he was entitled to a jury instruction on consent due to the victim‘s actions in entering appellant‘s room at 2:00 a.m., sitting close enough to appellant to share a pair of iPod ear buds, letting him rub her leg for a while without stopping him, not jumping up and running out of the room when she had the opportunity, not saying anything to appellant‘s roommate when she left, and hugging appellant when she left the dorm. We disagree. The evidence presented at trial was that the victim consistently told appellant no and stop, when he began touching her breasts, butt, and vaginal area. Indeed, appellant‘s own written statement acknowledges that the victim wanted him to stop: We continued but then she began pulling away. I tried to continue but she was pulling away. So I stopped and said, Ok, I‘ll leave you alone! (Emphasis added.) Therefore, we do not find it was plain error for the trial court not to give an instruction on consent.
{¶ 32} Appellant next argues that he was entitled to a jury instruction on the lesser included offense of sexual imposition, which does not require the presence of force or threat of force. See R.C. 2907.06. [A] charge on the lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on
{¶ 33} Accordingly, appellant‘s second assignment of error is not well-taken.
C. Appellant Waived His Objection to the Admission of His Self-Incriminating Statements
{¶ 34} Under his third assignment of error, appellant makes a plethora of arguments surrounding whether his admissions to Officer Pearcy and Detective Sauer should have been suppressed. Appellant admits, though, that no motion to suppress was
{¶ 35} Moreover, the record reflects that appellant‘s arguments are meritless. Appellant presents a list of four grounds on which he contends a motion to suppress the self-incriminating statements would be likely to succeed: (1) for not being made freely and voluntarily, (2) for being made during an unnecessary delay by police in taking the appellant before a magistrate, (3) for being acquired after appellant requested the assistance of counsel, and (4) for being made under custodial interrogation without being informed of his Miranda rights. We will briefly address these arguments in reverse order.
{¶ 36} First, the record is clear that appellant was not subject to custodial interrogation, which is a requirement for the procedural safeguards in Miranda to apply. State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 26. Miranda defined custodial interrogation as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Hoffner at ¶ 27. Here, appellant voluntarily came to the police station, was not under arrest, left to go to a class, and returned later to bring his statement
{¶ 37} Appellant‘s third argument fails factually because there is no indication in the record that appellant requested the assistance of counsel at any time during his interview with the officers.
{¶ 38} Appellant‘s second argument fails because the rule he cites to from Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), applies to an arrested person‘s confession where it is given after an unreasonable delay in bringing him before a judge. Corley v. United States, 556 U.S. 303, 306, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009). Here, appellant was not charged with any crime, and was not under arrest, when he made his self-incriminating statements.
{¶ 39} Finally, appellant‘s first argument is without merit because his admission was made voluntarily. As grounds for his belief that his admission was involuntary, appellant cites that he was not given his Miranda rights, did not speak with counsel, and was illegally detained and arrested without prompt judicial determination as to whether probable cause existed to detain him for further proceedings. As discussed above, none of these grounds have merit. Appellant further contends that the admission was involuntary because the police interviewed him for more than an hour, and more than
{¶ 40} Whether a confession is voluntary depends upon * * * the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment, and the existence of threat or inducement. State v. Brewer, 48 Ohio St.3d 50, 58, 549 N.E.2d 491 (1990), quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus. Here, appellant, a college student, agreed to follow the officers to the station to be interviewed. He was not under arrest. He was free to leave to go to his class, and Sauer testified that he did not try to keep him at the station because he did not want to violate his civil rights. The record provides no indication that he was threatened or mistreated. Following the interview, he completed the witness statement on his own time, away from the police station. Thus, under the totality of the circumstances, appellant‘s self-incriminating statements were made voluntarily. Compare State v. Mason, 82 Ohio St.3d 144, 154, 694 N.E.2d 932 (1998) (statements voluntarily made where 30-year-old high school graduate who had taken some college courses, and who had two prior felony convictions, was asked to come to the station for interviews and he agreed, was not given Miranda warnings because he was not in custody, was not threatened, mistreated, or coerced, and was questioned twice, the second time lasting over four hours).
D. Appellant Received Effective Assistance of Counsel
{¶ 42} In his fourth assignment of error, appellant argues that his trial counsel was ineffective in four ways: (1) failing to move to suppress appellant‘s statements to the officers, (2) advising appellant not to testify, (3) failing to call appellant‘s roommate as a witness, and (4) failing to request appropriate jury instructions.
{¶ 43} To support a claim for ineffective assistance of counsel, appellant must satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel‘s performance fell below an objective standard of reasonableness, and a reasonable probability exists that but for counsel‘s error, the result of the proceedings would have been different. Id. at 687-688, 694. In Strickland, the United States Supreme Court opined,
[A] court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel‘s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Id. at 697.
{¶ 45} Second, appellant asserts counsel was ineffective for advising him not to testify. In support, appellant attached an affidavit to his appellate brief that describes what he would have said on the stand had he been called as a witness. However, we are limited to what transpired in the trial court as reflected by the record, we cannot rely on evidence outside of the record. State v. Ishmail, 54 Ohio St.2d 402, 406, 377 N.E.2d 500 (1978); see also State v. Hartman, 93 Ohio St.3d 274, 299, 754 N.E.2d 1150 (2001) (claim of ineffective assistance of counsel that would require proof outside the record is not appropriately considered on direct appeal). Moreover, [t]he decision whether to call a defendant as a witness falls within the purview of trial tactics. State v. Adkins, 144 Ohio App.3d 633, 646, 761 N.E.2d 94 (12th Dist.2001). Debatable trial tactics generally do not constitute a deprivation of effective counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). We also note that while appellant was acting on his counsel‘s advice, the decision whether to take the stand ultimately rests with him. See State v. Bey, 85 Ohio St.3d 487, 499, 709 N.E.2d 484 (1999) (defendant‘s right to testify is regarded both as a fundamental and a personal right that is waivable only by an
{¶ 46} Third, appellant asserts counsel was ineffective for failing to call his roommate as a witness. Again, appellant attached an affidavit detailing what the roommate would have testified. As above, appellant‘s claim fails because it is based on matters outside the record, and because the decision to not call a witness is a legitimate trial tactic.
{¶ 47} Finally, appellant contends counsel was ineffective for not requesting appropriate jury instructions on consent and the lesser-included offense of sexual imposition. We have already held that jury instructions on consent and sexual imposition were not supported by the record; therefore, appellant has failed to demonstrate a reasonable probability exists that the result would have been different had counsel requested the instructions. As to not receiving the instruction on the lesser-included offense, we also note, [f]ailure to request instructions on lesser-included offenses is a matter of trial strategy and does not establish ineffective assistance of counsel. State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996). Therefore, this claim of ineffective assistance of counsel must fail.
{¶ 48} Accordingly, since appellant cannot demonstrate a meritorious claim for ineffective assistance of counsel, his fourth assignment of error is not well-taken.
{¶ 49} As his fifth assignment of error, appellant argues that the conviction was based on insufficient evidence because the state failed to prove that an alleged grab during an otherwise consensual encounter rose to the level of force or threat of force as required by
{¶ 50} In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 51} Force is defined in
{¶ 52} Accordingly, appellant‘s fifth assignment of error is not well-taken.
{¶ 53} Appellant‘s sixth assignment of error challenges the jury‘s finding as being against the manifest weight of the evidence, specifically on the issue of force.
{¶ 54} When reviewing a manifest weight claim,
The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting Thompkins at 387.
{¶ 55} We do not find that this is the exceptional case in which the evidence weighs heavily against the conviction. In this case, the evidence before the jury tending to prove force was the victim‘s testimony that appellant grabbed her arms and prevented her from pushing his hands away, Pearcy‘s testimony that the victim complained of soreness in her arms, and Pearcy‘s and Sauer‘s testimony that appellant admitted to grabbing the victim. In contrast, the evidence proving a lack of force was appellant‘s witness statement that [the touching] was not a forceful thing, it was something she let
{¶ 56} Accordingly, appellant‘s sixth assignment of error is not well-taken.
G. The Doctrine of Cumulative Error Is Inapplicable
{¶ 57} As his seventh and final assignment of error, appellant raises the doctrine of cumulative error. [A]lthough a particular error by itself may not constitute prejudicial error, the cumulative effect of the errors may deprive a defendant of a fair trial and may warrant the reversal of his conviction. State v. Hemsley, 6th Dist. No. WM-02-010, 2003-Ohio-5192, ¶ 32, citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. However, in order even to consider whether cumulative error is present, we would first have to find that multiple errors were committed in this case. State v. Madrigal, 87 Ohio St.3d 378, 398, 721 N.E.2d 52 (2000). In light of our findings with respect to appellant‘s other assignments of error, we hold that the doctrine of cumulative error is inapplicable and provides no basis for reversal.
{¶ 58} Accordingly, appellant‘s seventh assignment of error is not well-taken.
III. Conclusion
{¶ 59} For the foregoing reasons, the judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
C.A. No. WD-11-025
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
Arlene Singer, P.J.
Stephen A. Yarbrough, J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.