State v. McCleery , 2022 Ohio 263 ( 2022 )

[Cite as State v. McCleery, 2022-Ohio-263.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2021-T-0024
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
SCOTT STEVEN MCCLEERY,
Trial Court No. 2020 CR 00477
Defendant-Appellant.
OPINION
Decided: January 31, 2022
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Christopher Philip Lacich, Roth Blair Roberts Strasfield & Lodge, 100 East Federal
Street, Suite 600, Youngstown, OH 44503 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Scott Steven McCleery, appeals from his convictions
for Domestic Violence, Attempted Rape, and Felonious Assault, following a jury trial in
the Trumbull County Court of Common Pleas. For the following reasons, we affirm the
decision of the lower court.
{¶2} On August 26, 2020, the Trumbull County Grand Jury issued an Indictment,
charging McCleery with Domestic Violence, a felony of the fourth degree, in violation of
R.C. 2919.25(A); Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(2);
Attempted Rape, a felony of the second degree, in violation of R.C. 2923.02(A) and
2907.02(A)(2); two counts of Felonious Assault, felonies of the second degree, in violation
of R.C. 2903.11(A)(2); and Disrupting Public Services, a felony of the fourth degree, in
violation of R.C. 2909.04(A)(1).
{¶3} A jury trial was held on March 22-23, 2021. The following pertinent
testimony and evidence were presented:
{¶4} K.R. testified that she dated McCleery from approximately April to July of
2020 and was living with him in a trailer home on July 2, 2020. On that date, K.R. asked
McCleery to go out with K.R. and her friend, which request he denied. She described
McCleery as acting “ignorant,” and calling her names. She observed that they had been
fighting over the past few weeks and he had become “more aggressive.” K.R. and two
girlfriends went to multiple bars that evening. She had one alcoholic beverage, a Twisted
Tea, and shared one marijuana joint with her friends while driving to a bar. Throughout
the night, McCleery called her 30 or 40 times and was “aggressive,” “unpleasant,” and
used expletives because he was upset that she went out. During one call outside of a
bar, K.R. used her speakerphone so others could hear him yelling and calling her names.
A male acquaintance who was present, Cameron, asked “why would you talk to your girl
like that?” McCleery became upset when he heard the male voice, called K.R. a “whore,”
and said “You’re cheating on me.”
{¶5} According to K.R., when she arrived home after 2 a.m., McCleery was
outside, grabbed her by the hair, and dragged her up the steps into the home. Inside the
residence, she observed that items were destroyed and moved around. She ran out of
the house and drove her car to a nearby mall parking lot. She spoke on the phone with
her mother, whom McCleery had called and informed they had been fighting. She then
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spoke with McCleery and agreed to go home because he seemed calmer and promised
not to put his hands on her. She entered the home, did not see McCleery, and went
inside the bathroom. McCleery then “comes out of nowhere,” ripped her phone out of her
hand, and threw it in the toilet. She testified that McCleery “wiped” his fingers across her
vagina on top of her underwear and made a statement implying she had sex with another
man. K.R. testified that he grabbed her in a chokehold and shoved his fingers in her
vagina. She screamed for him to stop, he did, and then he ripped off her underwear. She
fell to the ground, and felt “something sharp by [her] butt.” She then saw that McCleery
had a claw hammer. She testified she was “not sure what he was trying to do with it” but
it was “towards [her] thighs, up by [her] butt.” She further stated: “I felt it by my – right by
my vagina and my butt.” K.R. squeezed her legs together and McCleery was trying to
open them. She testified that she thought he was trying to “shove the hammer up [her].”
When asked “was he trying?” she responded “yes.” She testified that she was injured on
her buttocks, calf muscle, and by her thighs. After repeatedly screaming for McCleery to
stop, he backed up a little bit and she ran to the bedroom.
{¶6} While K.R. ran to the bedroom, McCleery retrieved a steak knife from the
kitchen. He stabbed the bedroom door and around her on the bed, coming within a few
inches of her. He eventually fell asleep on the couch, at which time she went to a friend’s
house. She later went to her mother’s house and her mother called the police. She went
to the hospital for an exam and told the nurse she was not raped because she did not
understand what this meant. According to K.R., at the hospital, she stated that McCleery
put his fingers inside her, attempted to penetrate her with the hammer, and that the
hammer “never got beyond my buttocks” and was “by my butt and butt cheek crease.” In
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her written statement to police, which her mother wrote for her because she was crying
and shaking, she stated: “I thought he was shoving his fingers up my vagina and butt,
then figured out he was using a hammer, the claw part.”
{¶7} According to K.R.’s mother, K.R. arrived at her mother’s house later that
day and was “walking funny” and hyperventilated while telling her what happened with
McCleery. The victim’s mother had been with K.R. on the date of the incident and knew
she had been arguing with McCleery. McCleery had called her early in the morning hours
of July 3, stating K.R. was cheating on him and calling her expletives and K.R. called her
mother around 3 a.m., crying and scared to go home. While K.R. was at her home,
McCleery continued to call and she decided to call the police. In the following days, K.R.’s
mother observed bruising on K.R.’s thighs and long red scratches “between her butt
cheeks.”
{¶8} Patrolman Tyce Gall of the Niles Police Department responded to the
dispatch and encountered K.R., who was in tears and had “sort of a limp.” He and other
officers arrested McCleery at his residence, where he was hiding behind a mirror and
inquired about the reasons for his arrest. Detective Anthony Roberts testified regarding
photos that depicted the state of the residence, where puncture marks were found in the
walls, the bedroom door, and the bed sheet. A pair of ripped underwear was also
recovered.
{¶9} Recordings of phone calls made by McCleery while incarcerated were
played, during which McCleery apologized to K.R. and stated that his conduct was due
to excessive drinking that night.
{¶10} Lindsey Deetz, a forensic scientist at the Ohio Bureau of Criminal
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Investigation, testified that a vaginal swab was positive for acid phosphatase activity,
which can demonstrate the presence of semen. The swab contained male DNA but she
could not exclude or include McCleery as the contributor. She noted that “if there's no
body fluid and it's just skin cells or transfer of some sort, it can be difficult, but not
impossible, to find a DNA profile.” DNA recovered from K.R.’s jaw was from a male, with
McCleery excluded as the contributor. DNA swabs from the hammer head and handle
were consistent with a mixture of K.R. and McCleery’s DNA. On cross-examination,
defense counsel inquired about whether the acid phosphatase could be caused by
something other than semen and Deetz responded affirmatively, testifying that there was
no semen in the sample provided.
{¶11} At the close of the State’s case, McCleery moved for acquittal on all
charges, which motion was denied.
{¶12} McCleery testified that he planned to go out with K.R. on the date of the
offenses but declined to do so because she was rushing him and he did not want to go to
bars. Because of this and another issue between the couple, he was “rude” to her as she
left the residence. He called her many times while she was gone and she failed to pick
up most of his calls. He testified that when she arrived home around 2 a.m., he yelled at
her, asking who she had been with and why she failed to answer her phone. He grabbed
her by her hair and brought her inside. According to McCleery, K.R. left the trailer and
when he spoke with her on the phone again, he heard a man’s voice. When she arrived
home, he held a hammer to the small of her back and lifted her dress with the hammer to
check whether she was wearing underwear. He also held her in a chokehold. He then
lectured her about going out to drink when the two were trying to have a child. He stabbed
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the bedroom door with the knife but did not stab the bed, although he admitted to trying
to scare K.R. McCleery admitted that he had been drinking while she was gone and had
tossed items around the trailer. He denied putting his fingers in her vagina.
{¶13} The jury found McCleery guilty of Domestic Violence, Attempted Rape, and
Felonious Assault in relation to use of the hammer. McCleery was acquitted of Rape,
Disrupting Public Services and Felonious Assault relating to the knife.
{¶14} A sentencing hearing was held on April 21, 2021. The court merged the
offenses of Attempted Rape and Felonious Assault and the State elected to proceed on
Attempted Rape for the purposes of sentencing. The court ordered McCleery to serve
consecutive sentences of twelve months in prison for Domestic Violence and five to seven
and one-half years for Attempted Rape.
{¶15} McCleery timely appeals and raises the following assignments of error:
{¶16} “[1.] The trial court erred and abused its discretion when it denied the
defendant-appellant’s Criminal Rule 29 motion and/or the verdicts convicting the
defendant of Attempted Rape (Count 3) and Felonious Assault (Count 4) were based on
evidence that was legally insufficient, or in the alternative, against the manifest weight of
the evidence.
{¶17} “[2.] Trial counsel was ineffective for her failure to object to leading
questions to the alleged victim, for allowing the state’s forensic expert to retract a key
point of beneficial evidence, and for failure to request a jury charge of ‘false in one, false
in all.’”
{¶18} In his first assignment of error, McCleery argues that his convictions for
Attempted Rape and Felonious Assault are against the weight and sufficiency of the
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evidence.
{¶19} “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different conclusions as
to whether each material element of a crime has been proved beyond a reasonable
doubt.” State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. “Thus,
when an appellant makes a Crim.R. 29 motion, he or she is challenging the sufficiency of
the evidence introduced by the state.” (Citation omitted.) State v. Hastings, 11th Dist.
Portage No. 2020-P-0014, 2021-Ohio-662, ¶ 23. In reviewing the sufficiency of the
evidence, “[t]he 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, following Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶20} Whereas “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the
evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence
is more persuasive—the state’s or the defendant’s?” Id. An appellate court must
consider all the evidence in the record, the reasonable inferences, the credibility of the
witnesses, and 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.” (Citation omitted.) Thompkins at 387. “Since there must be
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sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction is
supported by the weight of the evidence necessarily must include a finding of sufficiency.’”
(Citation omitted.) State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-
1842, ¶ 32.
{¶21} As an initial matter, we need not consider sufficiency or manifest weight
arguments as they relate to Felonious Assault since this merged into Attempted Rape for
the purposes of sentencing. As this court has held, where allied offenses are merged
and there is sufficient evidence on the offense for which the defendant is sentenced,
errors relating to sufficiency and weight of the evidence on the count that is merged are
harmless and need not be considered. State v. Mugrage, 11th Dist. Portage No. 2020-
P-0066, 2021-Ohio-4136, ¶ 133; State v. Whetstone, 11th Dist. Lake No. 2015-L-114,
2016-Ohio-6989, ¶ 26.
{¶22} Pursuant to R.C. 2923.02(A): “No person, purposely or knowingly, when
purpose or knowledge is sufficient culpability for the commission of an offense, shall
engage in conduct that, if successful, would constitute or result in the offense.” The Rape
statute applicable here 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.” R.C. 2907.02(A)(2). Sexual conduct is defined as “vaginal intercourse between
a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless
of sex; and, without privilege to do so, the insertion, however slight, of any part of the
body or any instrument, apparatus, or other object into the vaginal or anal opening of
another.” R.C. 2907.01(A). “Attempted rape requires that the actor (1) intend to compel
submission to sexual conduct by force or threat, and (2) commit some act that
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‘convincingly demonstrate[s]’ such intent.” (Citations omitted.) State v. Davis, 76 Ohio
St.3d 107, 114, 666 N.E. 2d 1099 (1996).
{¶23} While McCleery challenges both the sufficiency and the weight of the
evidence, he primarily takes issue with various credibility issues he alleges invalidate
K.R.’s testimony, arguing that her testimony was inconsistent, “outlandish,” and untruthful.
Where a defendant argues the testimony implicating him is “contradictory and incredible,”
such contention “calls for an evaluation of the witnesses’ credibility, which * * * is not
proper on review for evidentiary sufficiency.” State v. Yarbrough, 95 Ohio St.3d 227,
2002-Ohio-2126, 767 N.E.2d 216, ¶ 79; State v. Stuart, 11th Dist. Lake No. 2018-L-145,
2020-Ohio-3239, ¶ 93 (“[c]redibility is a question concerning the weight, rather than the
sufficiency, of the evidence”). Further, the victim’s testimony alone, if believed, is
sufficient to prove each element of the offense of rape. Stuart at ¶ 93. Thus, as long as
there was testimony provided to support the elements necessary for Attempted Rape,
issues regarding the consistency and credibility of this testimony are properly considered
as a manifest weight challenge.
{¶24} Here, there was testimony provided that, if believed, could support an
Attempted Rape conviction. To prove Attempted Rape, it was necessary to show that
McCleery engaged in behavior that, if successful, would have resulted in sexual conduct
submitted to by force and that he intended to compel such submission. K.R. testified that
he placed a hammer between her buttocks, by her vagina and that he was trying to put
the hammer “inside [her],” which conduct she attempted to prevent by closing and
crossing her legs while screaming at him to stop. Placing the hammer near her vagina
and trying to put it inside her, as she testified to, if accepted as true, demonstrated the
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elements necessary for this crime. Her testimony was corroborated by other evidence,
including witness testimony and photographs of her injuries, which included scratches
and bruising on her thighs and buttock, and of the trailer. Since there is sufficient
evidence to support the convictions, we will proceed to consideration of credibility issues
as they relate to the weight of the evidence.
{¶25} We initially emphasize that “[t]he choice between credible witnesses and
their conflicting testimony rests solely with the finder of fact and an appellate court may
not substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d
120, 123, 489 N.E.2d 277 (1986). “Since the jury is in the best position to assess
credibility, we generally decline to second guess its credibility determinations.” State v.
Tiggett, 11th Dist. Trumbull No. 2018-T-0036, 2019-Ohio-1715, ¶ 34. The issues raised
by McCleery do not warrant rejection of the jury’s determination of witness credibility.
{¶26} McCleery contends that K.R.’s testimony should be discounted as untruthful
“after a night of drinking and marijuana use.” This argument ignores the entirety of the
record and is contradictory to McCleery’s own arguments that his testimony should have
been believed rather than K.R.’s. The defendant would apparently have this court reject
all of the victim’s testimony where she indicated she had one alcoholic beverage and
shared part of one marijuana joint a few hours before the assault, yet accept his self-
serving testimony although he indicated in his phone call to the victim that he had 20
shots of alcohol and that the night was a “blur,” and repeatedly stated he had only
assaulted her because he was drunk. There was nothing in the record to indicate that
the alcoholic beverage and marijuana consumed several hours before the assault
rendered K.R. intoxicated or impacted her ability to recall or accurately describe the
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events.
{¶27} Although McCleery characterizes K.R.’s testimony as “outlandish,” various
details were corroborated through other evidence. Her description of McCleery ripping
off her underwear was supported by the torn underwear discovered at the home, her
statements about him stabbing objects in the bedroom were demonstrated through
photos of the scene, both parties’ DNA was on the head and handle of the hammer,
McCleery’s phone calls and text messages demonstrated remorse for events occurring
on the night in question, K.R.’s injuries were consistent with the conduct described, and
her fear and emotional reaction to the events were testified to by multiple witnesses.
Further, it is certainly a possibility that the jury considered K.R.’s testimony not to be more
“outlandish” than McCleery’s story that he wielded a hammer for the purpose of lifting up
K.R.’s dress to see if she was wearing underwear. His admission of this conduct
demonstrates his irrational and aggressive state at the time of the assault. The jurors
were in the best position to evaluate credibility in the face of the conflicting testimony.
Awan at 123.
{¶28} McCleery also argues that K.R.’s version of events changed over time,
emphasizing alleged differences in her description of how the hammer was used. While
the description changed slightly from K.R.’s statements at the hospital and in her
testimony, she was generally consistent in her statement that the hammer was on and
around her buttocks and near her vagina. In the hospital she said the hammer “never got
beyond my buttocks” and at trial she stated that it was “by my butt” and “in between my
thighs.” Although these statements differ slightly, they both demonstrate the general area
where the hammer was. She never claimed that the hammer penetrated her but instead
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that McCleery attempted to use it to do so while she used her legs to prevent his actions.
While she did demonstrate some confusion regarding whether she was penetrated with
McCleery’s fingers, testifying that he did insert his fingers in her vagina, while in the written
statement, she stated that she “thought” he was shoving his fingers in her vagina but then
noticed his use of a hammer, it is evident the jury recognized this inconsistency given its
acquittal of McCleery on the Rape charge. Contrary to his assertions, there is nothing in
the record to demonstrate that the jurors were not “attentive.”
{¶29} McCleery raises several other arguments regarding credibility which are
either irrelevant or mischaracterized. For example, to the extent that McCleery argues
that Deetz corroborated the argument that he did not insert his finger in K.R.’s vagina,
thus establishing K.R.’s lack of credibility, her complete testimony was equivocal. While
McCleery’s DNA was not found from the vaginal swab, Deetz also testified that “if there's
no body fluid and it’s just skin cells or transfer of some sort, it can be difficult, but not
impossible, to find a DNA profile.” Also, while McCleery emphasizes Deetz’s testimony
as showing semen present on the vaginal swab, Deetz subsequently clarified this was
not from semen and could be from another source of bodily fluid. Further, whether K.R.
had a male’s DNA on her face is irrelevant; this could come from multiple forms of contact
with any male individual, K.R. did not describe the touching of her face being involved in
the assault, and whether K.R. was with another man that night has no bearing on whether
McCleery’s conduct constituted Attempted Rape.
{¶30} To the extent that McCleery compares the credibility of his testimony with
K.R.’s, his emphasis as to the truth of his statements is questionable. As noted above,
he repeatedly stated that he was heavily intoxicated during the incident. His statements
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that he did not use the hammer on the victim other than to place it on her back and to lift
her dress and did not attempt to rape her are inconsistent with testimony and photographs
of scratches and bruising on her legs and thighs. Although he testified he did not rip her
underwear off her body, this is contrary to his statement in the recorded jail phone call
and torn underwear was located at the scene and identified by the victim. In contrast,
K.R.’s testimony was consistent with her documented injuries and the evidence at the
scene. Although every detail given in her statements after the incident while showing
signs of stress from the events may not have been precisely the same as her testimony,
this does not render her testimony lacking in credibility such that this issue should be
removed from the jury, particularly given the inconsistent and self-serving nature of the
defendant’s testimony. State v. Sarge, 5th Dist. Knox No. 21CA000014, 2021-Ohio-4379,
¶ 36 (“a jury is free to reject a defendant’s self-serving testimony, and * * * doing so does
not render a conviction against the manifest weight of the evidence”).
{¶31} As a final note, in McCleery’s brief, counsel emphasizes that the DNA found
on K.R.’s jaw shows she may have been with another male, thereby supporting
McCleery’s testimony of the events of the evening “which led to his flawed decision to
commit domestic violence.” We emphasize that whether K.R. was with another man that
evening and whether that led to McCleery’s actions has no relevance. This provides no
justification whatsoever for his actions, nor does the truth of whether she was with a man
reflect on McCleery’s credibility since both parties gave the same testimony regarding the
presence of another male who made a statement to McCleery on K.R.’s phone.
McCleery’s actions were unjustified and veiled attempts to place blame on the victim are
valueless.
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{¶32} The first assignment of error is without merit.
{¶33} In his second assignment of error, McCleery argues that trial counsel was
ineffective by eliciting harmful testimony from an expert, failing to object to leading
questions, and failing to request a “false in one, false in all” jury charge.
{¶34} To demonstrate ineffective assistance of counsel, a defendant must prove
“(1) that counsel’s performance fell below an objective standard of reasonableness, and
(2) that counsel’s deficient performance prejudiced the defendant resulting in an
unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio
St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668,
687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there exists
a reasonable probability that, were it not for counsel’s errors, the result of the trial would
have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraph three of the syllabus. “There is a strong presumption that the attorney’s
performance was reasonable.” State v. Gotel, 11th Dist. Lake No. 2006-L-015, 2007-
Ohio-888, ¶ 10.
{¶35} First, McCleery argues that defense counsel was ineffective by failing to
object to leading questioning of K.R. by the prosecution on direct examination, which
“allowed the victim to recast her previous answers into a format of her and/or the State’s
choosing.”
{¶36} “A leading question is ‘one that suggests to the witness the answer desired
by the examiner.’” (Citation omitted.) State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-
5084, 854 N.E.2d 1038, ¶ 138. “Leading questions should not be used on the direct
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examination of a witness except as may be necessary to develop the witness’
testimony.” Evid.R. 611(C). However, “[b]ecause a trial court has broad discretion in
allowing leading questions, counsel’s decision not to object is within the realm of trial
strategy.” (Citation omitted.) State v. Jones, 2019-Ohio-2134, 137 N.E.3d 661, ¶ 59 (10th
Dist.); see also State v. Jackson, 92 Ohio St.3d 436, 449, 751 N.E.2d 946 (2001) (finding
a lack of ineffective assistance for failure to object to leading questions, since “it is within
the trial court’s discretion to allow leading questions on direct examination” and due to the
failure to demonstrate the result would have been different but for trial counsel’s alleged
ineffectiveness).
{¶37} In McCleery’s argument, he does not point to specific leading questions to
which counsel should have objected. It is accurate that throughout K.R.’s testimony, the
prosecutor asked questions that directed the general flow of the testimony, followed-up
seeking additional detail, and may have sought specific information. However, in the
absence of specific instances where McCleery believes objections were required, we
decline to address any particular questions as it is not the job of this court to root out
arguments that support an assignment of error. State v. Turner, 11th Dist. Lake No. 2020-
L-088, 2021-Ohio-1921, ¶ 23. Nonetheless, a review of the direct examination of K.R.
does not demonstrate that, had defense counsel objected, the testimony or outcome
would have been different such that McCleery suffered prejudice. See State v. Lewis,
11th Dist. Lake No. 2012-L-074, 2013-Ohio-3974, ¶ 164 (“[e]ven if an objection should
have been made, the failure did not alter the outcome of the trial based on the entirety of
the record”). As has been observed, if defense counsel had objected to any potentially
leading questions, “the state could have simply rephrased” the questions following the
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objection. Jones at ¶ 60.
{¶38} Next, McCleery argues that counsel’s cross-examination of Deetz regarding
the absence of sperm in the vaginal swab elicited information that was harmful to his
defense, causing Deetz to “recant” her prior statement that there was another man’s
semen present and there was no basis to proceed with this line of questioning.
{¶39} “The scope of cross-examination clearly falls within the ambit of trial
strategy.” State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45.
“[D]ebatable trial tactics do not establish ineffective assistance of counsel.” (Citation
omitted.) State v. Johnson, 11th Dist. Ashtabula No. 2009-A-0050, 2010-Ohio-3046, ¶
37. Given this great deference to trial counsel in developing trial strategy, we do not find
ineffective assistance of counsel. Here, during direct examination, Deetz testified that
acid phosphatase may be indicative of the presence of semen, but did not elaborate.
Defense counsel inquired further about whether semen was found in the vaginal swab,
ultimately eliciting a statement from Deetz that the acid phosphatase did not demonstrate
semen was present. While this questioning may have elicited information not necessary
or particularly helpful to McCleery’s defense, it could have been part of a strategy to
emphasize that his DNA was not present and to further clarify the issues of DNA for the
jury. Furthermore, as addressed above, demonstrating whether K.R. had been with
another man did not impact McCleery’s credibility as he asserts. Both parties agreed that
a man had spoken on the phone, McCleery heard it, and this caused him to be suspicious
that she was cheating. Confirming that she had done so would not give McCleery more
credibility nor was it relevant for the purposes of determining that he committed the
criminal acts in question. For these reasons, we find neither ineffectiveness of counsel
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nor prejudice. See Arcaro, 2013-Ohio-1842, at ¶ 23-24 (“[i]n the present matter, while
some damaging information was elicited during defense counsel’s cross-examination * *
* we cannot say that this constituted ineffective assistance of counsel” since counsel was
entitled to deference to his trial strategy).
{¶40} Finally, McCleery argues that defense counsel should have requested a
“false in one, false in all” jury instruction in response to K.R.’s allegedly inconsistent
testimony.
{¶41} A “false in one, false in all” instruction states that if a witness willfully lies
about a material fact, the jury is “free to assume” that witness testified falsely about other
matters. Mikula v. Tailors, 24 Ohio St.2d 48, 51, 263 N.E.2d 316, 325 (1970). It has been
held that such an instruction is permissible, “if at all,” when a witness has “made a
consciously false statement about a material fact or circumstance.” Id.; State v. Mitchell,
8th Dist. Cuyahoga No. 45014, 1983 WL 5738, *9 (Feb. 3, 1983). “Seemingly
contradictory utterances of a witness do not, per se, establish a conscious falsity” and
“[s]omething more must appear which will permit the jury reasonably to believe that
perjury was committed.” State v. Rodriguez, 6th Dist. Wood No. WD-08-011, 2009-Ohio-
4059, ¶ 32, citing Mikula at 52. For example, where a witness testifies differently at two
separate hearings, this alone does not require an instruction; rather, the record must
contain an “implication of intentionally perjurious conduct.” Mitchell at *9. It has been
emphasized that the rule “is not absolute and often tends to defeat rather than promote
the ascertainment of truth.” State v. Jones, 10th Dist. Franklin No. 76AP-321, 1976 WL
190259, *2 (Oct. 5, 1976). The trial court can exercise its discretion to give such an
instruction but, “[o]rdinarily, that extreme an approach is not taken, and the jury is
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permitted to determine the credibility of the remaining testimony in light of the falsehood
that has been pointed out.” Id.{¶42} McCleery fails to provide specific argumentation in support of the merits of
giving such instruction. He points only to inconsistencies as addressed above, relating
to the weight of the evidence. While the victim may have been partially inconsistent in
her versions of the events, there is nothing in the record to indicate that she made a
consciously or intentionally false statement about a material fact or perjured herself.
Since the facts did not require such an instruction, counsel was not ineffective for failing
to request this instruction be given, nor did prejudice result. The instruction given to the
jurors advised them that they are free to believe all or part of any witness’s testimony and
to determine what weight to assign their testimony when evaluating credibility. This
instruction was proper under the circumstances.
{¶43} Within this assignment of error, McCleery also argues that the trial court
erred in failing to give this instruction, recognizing the applicability of a plain error standard
due to counsel’s failure to raise this issue. Given the foregoing, we find no error in the
failure to give such an instruction, plain or otherwise.
{¶44} The second assignment of error is without merit.
{¶45} For the foregoing reasons, McCleery’s convictions for Domestic Violence,
Attempted Rape, and Felonious Assault in the Trumbull County Court of Common Pleas
are affirmed. Costs to be taxed against appellant.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.
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Case No. 2021-T-0024