In re S.W.E. , 2021 Ohio 80 ( 2021 )

[Cite as In re S.W.E., 2021-Ohio-80.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
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IN THE MATTER OF S.W.E. : Appellate Case No. 2020-CA-27
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: Trial Court Case D49372
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: (Appeal from Common Pleas Court –
: Juvenile Division)
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OPINION
Rendered on the 15th day of January, 2021.
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MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Greene County Prosecutor’s Office,
Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Appellee
BRADLEY P. KOFFEL, Atty. Reg. No. 0062184, 1801 Watermark Drive, Suite 350,
Columbus, Ohio 43215
Attorney for Appellant
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HALL, J.
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{¶ 1} S.W.E. appeals from his adjudication for rape in the Montgomery County
Court of Common Pleas, Juvenile Division. He presents claims of ineffective assistance
of counsel and contends that the court improperly limited his cross-examination of the
victim and that his adjudication was against the manifest weight of the evidence. For the
following reasons, we affirm the court’s adjudication.
I. Factual and Procedural Background
{¶ 2} On December 21, 2018, S.W.E., age 17, was charged with a single count of
rape in violation of R.C. 2907.02(A)(2), a felony of the first degree if committed by an
adult. S.W.E. denied the charge. The State offered to allow him to admit to a charge of
felonious assault, and it requested that an assessment be done to determine whether
S.W.E. needed treatment and that he be placed on community control and follow any
treatment recommendations. Defense counsel discussed the plea offer with S.W.E. and
advised him to accept it, but S.W.E. rejected counsel’s advice.
{¶ 3} At the start of the July 2, 2019 dispositional hearing, the State read its plea
offer into the record.1 Defense counsel told the court that S.W.E. rejected the offer. The
trial court then addressed S.W.E. directly and asked him if he wanted to reject the plea
offer; he answered, “Yes.” (Tr. 7.) The court asked S.W.E. if he understood that, if he
were found delinquent for rape, he could be placed into the custody of the Department of
Youth Services, he could receive a fine, and he could, at the trial court’s discretion, be
1 At the hearing, the State referred to an offer to plea to felonious assault, but S.W.E.
says that the offer was to plea to attempted felonious assault. In its brief, the State says
that it will accept S.W.E.’s representation, but it is not relevant for purposes of this appeal
which offense was mentioned.
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classified as a sex offender and be subject to the registration requirements under Tier I,
II, or III. S.W.E. indicated that he understood. The court continued: “And knowing that you
could be placed at the Ohio Department of Youth Services for an indefinite term, a
minimum of which is one year up until your 21st birthday, knowing what the maximum
fine the Court could impose and knowing that the court could order you to register as a
sex offender at any one of those three Tier levels, do you still want to reject the State’s
offer and go forward with the trial today?” S.W.E. answered affirmatively, (Tr. 9-10), and
the hearing proceeded.
{¶ 4} The victim testified that she knew S.W.E. from school, where they were both
students. He was 17 years old, she was 18. Around 1 p.m. on November 11, 2018, she
went to his house in Jamestown, Ohio. When she arrived, she took off her shoes in the
living room, and they started listening to music. The two made their way into S.W.E.’s
bedroom, where the victim sat down on the bed, perpendicular to him, while they talked.
Brushing dog hair off of her sweatpants and telling her that he could “fix” the dog hair, he
began to pull off her pants. The victim testified that she told him, “I don’t want you to do
that * * * I don’t want to do anything.” (Tr. 27.) She resisted S.W.E.’s advances by pulling
up her pants and telling him no. But S.W.E. persisted and managed to get her pants off.
He then took off her underwear, despite the victim telling him, “No, like I don’t want you
to take them off.” (Tr. 29.)
{¶ 5} After taking off her pants and underwear, S.W.E. stood up, moved her legs,
pulled down his own pants and underwear, and put his penis in her vagina. The victim
testified, “I put my hands on his chest, and I told him to stop,” (Tr. 32), but he did not stop.
She told him that it hurt, that she was afraid, and multiple times she told S.W.E. to stop
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and tried to push him away. He still did not stop, and the victim testified that she was
afraid he would hit her.
{¶ 6} After S.W.E. had finished and left the room, the victim put on her clothes and
went into the bathroom. She saw that she was bleeding a lot. She left S.W.E.’s house
and went to her best friend’s house, where she tearfully recounted what had happened.
The victim and her friend went to the Jamestown Police Department and then to the
Greene County Sheriff’s Department in Xenia to report what had happened, but both were
closed. The victim then went to work, where she told her co-worker and cousin what had
happened. The cousin took the victim to the hospital.
{¶ 7} At the hospital, a sexual assault nurse examiner completed a rape kit. The
nurse testified that she examined the victim at the hospital and found a significant skin
tear at the vaginal opening that was consistent with the victim’s explanation of how she
received the injuries. The nurse explained that vaginal tearing during consensual sex is
not common in 18-year-old females.
{¶ 8} S.W.E. took the stand in his own defense. He testified that the sex was
entirely consensual. He admitted that he never asked the victim to have sex and that she
never verbally consented to sex. S.W.E. said that she “didn’t say anything.” (Tr. 181, 184.)
He testified that “[s]he never said no.” (Tr. 181.) “She never pushed me away, she never
forcefully made me stop.” (Tr. 184.) When asked if she had said yes to having sex, S.W.E.
answered, “I don’t know what she would say yes to.” He said that he got the “vibe” that
she was consenting. “I just felt like fluently and normal. Nothing was going wrong.” (Tr.
182.)
{¶ 9} The trial court found S.W.E. delinquent for committing a rape offense. He
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appeals.
II. Analysis
{¶ 10} S.W.E. raises four assignments of error on appeal. We begin with the first
and fourth assignments of error and their claims of ineffective assistance of counsel.
A. Ineffective Assistance of Counsel – Plea Offer
{¶ 11} The first assignment of error alleges:
Appellant was deprived of his right to effective assistance of counsel with
respect to the State’s plea proposal.
{¶ 12} S.W.E. contends that counsel failed to tell him that an adjudication of
delinquency for rape entailed mandatory sex-offender classification and registration. He
also contends that counsel failed to advise him that the State’s plea offer was an unusually
good offer and that accepting the proposal was the only reasonable decision under the
circumstances.
{¶ 13} To establish ineffective assistance of counsel, a defendant must show that
trial counsel’s performance was deficient, that is, that counsel’s conduct fell below an
objective standard of reasonableness, and show that the errors were serious enough to
create a reasonable probability that, but for the errors, the outcome of the case would
have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). A
failure to make either showing defeats the claim. State v. Thompson, 2d Dist. Montgomery
27924, 2018-Ohio-4689, ¶ 10. Judicial “scrutiny of counsel’s performance must be highly
deferential,” so “a [reviewing] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance * * *.” Strickland
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at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
{¶ 14} Where an ineffective-assistance claim involves rejection of a plea offer and
the defendant is later convicted at the ensuing trial, the defendant must show that “he
was offered a plea agreement; that his defense counsel provided legally unsound advice
by recommending that he reject the offer; that he would have entered into the agreement
but for his counsel’s unsound advice; that the offer would not have been withdrawn; that
the trial court would have approved the agreement; and that his sentence pursuant to the
agreement would have been more favorable than the sentence actually imposed by the
court.” Thompson at ¶ 11, citing Lafler v. Cooper, 566 U.S. 156, 162-164, 132 S.Ct. 1376,
182 L.Ed.2d 398 (2012) and State v. Royster, 2d Dist. Montgomery No. 26378, 2015-
Ohio-625, ¶ 32-33.
{¶ 15} S.W.E. was 17 years of age at the time he committed the rape offense. By
statute, he was subject to mandatory classification and the corresponding registration
requirements. R.C. 2152.191; R.C. 2152.83(A). The classification tier was up to the trial
court to decide. R.C. 2152.831. Trial counsel admitted that, in advising S.W.E., he did not
tell S.W.E. that if he was adjudicated delinquent for rape, sex-offender classification and
registration would be mandatory, nor did counsel tell S.W.E. that being adjudicated
delinquent for rape could result in his detention until he turned 21 years of age. During
the plea colloquy, the trial court told S.W.E., incorrectly, that if he were adjudicated
delinquent for rape, the court had the discretion to classify him as a sex offender. In
reviewing the State’s plea offer, the trial court told S.W.E. that if he were adjudicated
delinquent for rape, the court “at the Court’s discretion, could classify you as a sex
offender.” (Tr. 8.) Counsel did not correct the court. But at the time of this discussion,
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S.W.E. had already expressed his intention to reject the plea offer. (T. 7.)
{¶ 16} S.W.E. states in his affidavit: “From speaking with my new attorney Mr.
Koffel, I now understand that the prosecutor’s plea offer of attempted felonious assault
was a great offer and that it was stupid to not accept it. If [counsel] had more strongly
recommended accepting the plea offer, I would have.” While counsel did not advise
S.W.E. that the State’s offer was unusually good or that accepting the offer was the only
reasonable decision, the record shows that counsel discussed the plea offer with S.W.E.
and advised him to accept it. We do not think that it was objectively unreasonable for
counsel not to “more strongly recommend[ ] accepting the plea offer,” as S.W.E.
contends. Counsel had a duty to ensure that S.W.E. understood the offer, and there is no
evidence that S.W.E. misunderstood what the State was offering. See State v. Bonner,
2d Dist. Montgomery No. 19656, 2003-Ohio-4317, ¶ 45 (noting that the record failed to
show that defendant misunderstood the plea offer). We note that S.W.E.’s psychological
evaluation stated that he had no mental health issues or problems that might interfere
with his understanding. There was nothing to suggest that S.W.E. did not understand that,
if adjudicated delinquent for rape, he could be classified as a sex-offender and be subject
to reporting requirements.
{¶ 17} S.W.E. claims that counsel should have been more forceful with his advice.
S.W.E. essentially argues that if he had known he likely would be adjudicated delinquent
for rape, he would have accepted the plea offer. But “[h]indsight is not permitted to distort
the assessment of what was reasonable in light of counsel’s perspective at the time[.]” In
re T.J., 2d Dist. Champaign No. 2014-CA-35, 2015-Ohio-2881, ¶ 23, citing State v. Cook,
65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992).
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{¶ 18} Regardless, whether or not counsel’s performance was deficient, the record
does not show that S.W.E. would have accepted the State’s plea offer had counsel told
S.W.E. that classification and registration would be mandatory if he were adjudicated
delinquent for rape or had counsel been more forceful in his advice.
{¶ 19} The evidence suggests, rather, that S.W.E. rejected the plea offer because
he believed that he was innocent. The record shows that he consistently maintained his
innocence. The probation department’s report noted that “[w]hen his mother referenced
to getting an attorney, [S.W.E.] said to the officers he was not scared of anything because
he knew it was not sexual assault.” Under the probation report’s “Summary of
Impressions” section, the probation officer stated: “I am also aware that [S.W.E.] has
maintained his innocence other than stating he did have consensual sex with the victim.”
Similarly, S.W.E.’s psychological-evaluation report noted that, “[u]pon being interviewed
by the police, [S.W.E.] stated that he was not afraid of anything because he knew the
sexual activity between them was not sexual assault.” And the Juvenile Sex Offender
Assessment Protocol (SOAP) section of the psychological report contained several
statements showing that S.W.E. believed he didn’t do anything wrong:
 “While he clearly planned to have the victim over to his house in the
hopes of engaging in sexual activity with her, there is no known
evidence that he planned to force her to engage in the activity. More
likely, he decided to force the activity when she did not willingly
reciprocate.”
 “While he did use force in his offense, there is no evidence that the
force was beyond what was necessary to get the victim to comply.”
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 “All of his [dynamic] risk factors are related to his complete denial of
the offense * * *.”
 “[S.W.E.]’s denial of the offense represents a major barrier to
successful completion of treatment.”
{¶ 20} It would seem that, looking back, S.W.E. wishes he had accepted the plea
offer, and he is now seeking to blame defense counsel.
{¶ 21} The first assignment of error is overruled.
B. Ineffective Assistance of Counsel – Cumulative Error
{¶ 22} The fourth assignment of error alleges:
Appellant was deprived of his right to effective assistance of counsel during
the adjudicatory hearing.
{¶ 23} S.W.E. argues that counsel was ineffective during the adjudicatory hearing
based on a cumulation of errors, primarily in the nature of questions that counsel asked.
S.W.E. cites six occasions during the adjudication proceedings in which, he says, trial
counsel was ineffective: (1) counsel helped make the State’s case by inviting the victim
to testify that she felt that S.W.E. might hurt her; (2) counsel helped make the State’s
case by impeaching the victim’s testimony that there was no way of telling whether S.W.E.
would hit her; (3) during cross-examination of the victim, counsel invited her to testify that
S.W.E. was violent, aggressive, and dangerous; (4) counsel was unprepared to conduct
a direct examination of S.W.E.; (5) counsel did not understand the Rules of Evidence;
and (6) counsel’s closing argument was incompetent and self-defeating.
{¶ 24} Under the doctrine of cumulative error, “[s]eparately harmless errors may
violate a defendant’s right to a fair trial when the errors are considered together. * * * In
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order to find cumulative error, we first must find that multiple errors were committed at
trial.” State v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 40. “A
conviction will be reversed when the cumulative effect of errors in a trial deprives a
defendant of a fair trial even though each of the numerous instances of trial-court error
does not individually constitute cause for reversal.” (Citation omitted.) State v. Powell, 132
Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. Accordingly, cumulative error
asserting ineffective assistance of counsel would require a determination that, while no
single act by trial counsel met the Strickland standard, the cumulative effect of counsel’s
conduct met the standard. See State v. Jordan, 2d Dist. Montgomery No. 27208, 2017-
Ohio-7342, ¶ 55.
{¶ 25} “Hindsight is not permitted to distort the assessment of what was
reasonable in light of counsel’s perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel.” State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31. When
reviewing the entire record, there is nothing to demonstrate that trial counsel’s conduct
fell below an objective standard of reasonableness and that his errors were serious
enough to create a reasonable probability that, but for the errors, the result of the trial
would have been different.
{¶ 26} The fourth assignment of error is overruled.
C. Limiting cross-examination of the victim
{¶ 27} The second assignment of error alleges:
The Juvenile Court erroneously restricted cross-examination of the alleged
victim.
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{¶ 28} During cross-examination, defense counsel asked the victim, “Did you ever
try to fight him off?” (Tr. 71.) The State objected that it was irrelevant whether she tried to
fight him off. Defense counsel responded that the testimony was relevant to the issue of
force, and the State responded that the commission of rape does not require that the
victim fight back. The trial court sustained the objection without further comment. S.W.E.
contends that he should have been able to ask the question.
{¶ 29} A defendant has the right under the Sixth Amendment to cross-examine
witnesses. Defense counsel must be given “wide latitude” on cross-examination and must
be allowed “as complete a cross-examination as reasonably possible of witnesses
identifying the defendant as the perpetrator of the crime.” State v. Hannah, 54 Ohio St.2d
84, 88, 374 N.E.2d 1359 (1978). But there are limits, and “the limits to which a witness
may be cross-examined are within the sound discretion of the trial court.” State v.
Woodard, 68 Ohio St.3d 70, 74, 623 N.E.2d 75 (1993).
{¶ 30} S.W.E. was charged with rape under R.C. 2907.02(A)(2), which provides,
“No person shall engage in sexual conduct with another when the offender purposely
compels the other person to submit by force or threat of force.” The rape statute expressly
states that a victim need not prove physical resistance to the offender. See R.C.
2907.02(C). Accordingly, “[a] rape occurs only if the perpetrator purposely compels the
other to submit by force or threat of force.” State v. Wilkins, 64 Ohio St.2d 382, 385, 415
N.E.2d 303 (1980).
{¶ 31} “Force” is defined as “any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1). Based on
the understanding of “purposely” in R.C. 2901.22(A), “in a Rape case, to prove that the
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defendant acted ‘purposely,’ the State must prove that it was the defendant’s intention to
engage in sexual conduct by forcefully compelling the other person to submit to the sexual
conduct.” State v. Hartman, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 26 (2d Dist.).
{¶ 32} We said in Hartman that evidence of consent—or the lack of consent—is
relevant to the State’s ability to prove whether the defendant purposefully forced or
compelled the alleged victim. Id. at ¶ 27. The question for the fact finder always remains
whether, based on all the evidence, it was the defendant’s intent to compel the alleged
victim to submit to the sexual conduct by force. Id. Evidence of consent challenges the
State’s evidence on the element of purposeful force or compulsion by tending to negate
a finding of force. Id. Evidence of consent also tends to show that the alleged victim did
not engage in the sexual conduct because of force. In other words, it tends to show that
it was not the defendant’s intent to compel submission by force to the sexual conduct,
i.e., compelling submission by force wasn’t necessary, because the alleged victim
consented. Proving that the alleged victim consented to the sexual conduct would
preclude a finding that the defendant used force to compel submission.
{¶ 33} Here, the victim’s answer to counsel’s question might have been relevant
to the issue of consent, not directly to the issue of force. If she had tried to fight him off,
S.W.E. could not have thought she consented, which would suggest that he compelled
her submission by force. But if she did not try to fight him off, consent to the sexual
conduct still might have been found, i.e., because S.W.E. thought she consented, he did
not intend to compel her submission by force.
{¶ 34} Rather than asking “Did you ever try to fight him off?,” it would have been
better if defense counsel had asked the victim whether she did anything physically to
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show that she did not consent. The latter was the basic question at issue in In re Orick,
182 Ohio App.3d 333, 2009-Ohio-2097, 912 N.E.2d 1138 (3d Dist.). The question there
was “whether she did anything to defend herself.” Id. at ¶ 5. The Third District concluded
that this question was permissible because the defendant should be allowed to question
the victim about what she did, if anything, to stop him. The question was intended to elicit
testimony to help determine whether she consented, which the court said was not the
same as requiring her to prove that she fought him or that she physically resisted. The
court found that “[t]his question was asked to impeach her credibility, and impeaching her
credibility is permissible.” Id. at ¶ 6. It is on this (albeit, minor) basis that Orick can be
distinguished. Here, the question—whether the victim ever tried to fight off S.W.E.—was
not asked to impeach the victim’s credibility, and in our view was eliciting evidence of
whether the victim physically resisted.
{¶ 35} At any rate, we need not decide whether the trial court should have allowed
the question, because the exclusion of that one question was harmless in the context of
the whole trial. Defense counsel was able to ask several other similar questions that
elicited testimony relevant to the issue of consent, about what the victim did physically
that showed her lack of consent. She testified about pulling her pants back up and putting
her hand on S.W.E.’s chest. Moreover, the nurse’s testimony about the vaginal tear
provided physical evidence that the victim did not consent to the sexual conduct.
Ultimately, even with the victim’s answer to the excluded question, the finding that S.W.E.
committed rape would still stand.
{¶ 36} The second assignment of error is overruled.
D. Weight of the Evidence
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{¶ 37} The third assignment of error alleges:
The adjudication is contrary to the manifest weight of the evidence.
{¶ 38} SWE contends that the weight of the evidence did not support finding that
the sexual conduct was compelled by force.
{¶ 39} “In determining whether a verdict is against the manifest weight of the
evidence, we are required to review the entire record, to weigh the evidence and all
reasonable inferences, and to consider the credibility of the witnesses.” (Citation omitted.)
Hartman, 2016-Ohio-2883, 64 N.E.3d 519, at ¶ 39. Under this standard of review, the
appellate court weighs the evidence in order to determine whether 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, 678
N.E.2d 541 (1997). “A manifest-weight-of-the-evidence argument questions the
believability of the evidence and asks a reviewing court to determine which of the
competing inferences is more believable.” Hartman at ¶ 40. But “the appellate court may
not substitute its judgment for that of the trier-of-fact on the issue of the credibility of the
witnesses unless it is patently apparent that the factfinder lost its way.” (Citation omitted.)
State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 81 (2d Dist.).
{¶ 40} S.W.E. was found to have violated R.C. 2907.02(A)(2), which prohibits a
person from “purposely compel[ling] the other person to submit [to sexual conduct] by
force or threat of force.” “Force” is defined as “any violence, compulsion, or constraint
physically exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1).
We have explained that “the elements of Rape can be established when the two
participants start the sexual encounter on a consensual basis, but the consent is revoked
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by words, actions or conduct that clearly communicates non-consent, the defendant fails
to respect the change in consent, and purposely proceeds to engage in sexual conduct
through force or threat of force evidenced by violence, physical restraint, or some type of
coercive or threatening conduct that creates a belief or fear that physical force will be
used if the victim does not consent.” Hartman at ¶ 32.
{¶ 41} That’s basically what seems to have happened here. Even if the encounter
started out as consensual, it is clear from the victim’s testimony that she revoked any
consent she might have communicated. The victim testified that S.W.E. pulled her pants
and underwear off, despite her pleas to stop. She said that she put her hands on his chest
and told him to stop. She kept pulling her pants back up and telling him no. And she said
that she feared S.W.E. might hit her. Furthermore, the nurse who examined the victim at
the hospital testified that she had a significant vaginal tear, which the nurse explained is
uncommon in females of the victim’s age during consensual sex.
{¶ 42} S.W.E. does not challenge the sufficiency of the evidence, and on this
record we conclude that, if believed, the evidence was sufficient to establish the force
element. The question that S.W.E. raises is whether the evidence showing the absence
of force was more persuasive than the evidence showing the use of force. The answer
depends on who one believes—S.W.E. or the victim. We are required to give substantial
deference to the trial judge, who acted as the trier of fact and had the opportunity to see
and hear the witnesses in judging their credibility. As we have said, “[t]he trier of fact is
better situated than an appellate court to view witnesses and to observe their demeanor,
gestures, voice inflections and to use those observations in weighing credibility.” (Citation
omitted.) State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 50 (2d Dist.). “A trier of fact
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is free to believe all, part or none of the testimony of each witness.” (Citation omitted.) Id.We conclude that the weight of the evidence here supported a finding that the sexual
conduct was compelled by force.
{¶ 43} We find nothing in the record from which to conclude that the trial judge
patently lost his way in finding the victim to be a more credible witness than S.W.E. We
conclude that the finding that S.W.E. committed rape was not against the manifest weight
of the evidence. This is not the exceptional case in which the finder of fact lost its way.
{¶ 44} The third assignment of error is overruled.
III. Conclusion
{¶ 45} We have overruled all of the assignments of error. The trial court’s judgment
is affirmed.
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TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Marcy A. Vonderwell
Bradley P. Koffel
Hon. Adolfo A. Tornichio