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Date: 04-10-2019

Case Style:

State of Ohio v. Russell David Green

Case Number: WD-18-029

Judge: Mark L. Pietrykowski

Court: COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

Plaintiff's Attorney: Paul A. Dobson, Wood County Prosecuting Attorney, David T. Harold and James A. Hoppenjans, Assistant Prosecuting Attorneys

Defendant's Attorney: Eric Allen Marks

Description:








Appellant appeals asserting the following single assignment of error:
APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTIONS AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.
{¶ 3} The following evidence was admitted at trial. The victim testified she first
met appellant when he was dating her mother in 2016 and the victim was 16 years old. A
month later, he moved into the home of the victim’s mother, the victim, and two other
siblings, which was located across the street from the victim’s grandparents, and
contributed to the rent.
{¶ 4} In the beginning, the victim testified, she would not have characterized
appellant as a father figure because she had a bad relationship with her biological father.
But, over time, she began to think of him as a father figure. She believed appellant
portrayed himself as a father figure by playing video games with her, giving her money,
buying her food and clothing, taking care of household repairs, driving her if her mother
was unavailable, and teaching the victim about things like cars and how to drive. While
she recalled having called appellant “dad” a few times, she generally called him by his
name and acknowledged that in a birthday card she had referred to him as “Bud.”
{¶ 5} The victim further testified that one night in January 2017, appellant sent her
a text from his bedroom telling about his pornographic dream about her. She became
3.
upset and went to her grandparent’s home where her sister tried to calm her down. Her
mother came looking for the victim and told her to stay with her grandparents. The
victim believed her mother had a fight with appellant that night. Her mother asked him
to leave, but he refused. The next day, appellant acted like nothing was wrong.
{¶ 6} After a while, appellant began touching her again, initially starting with
hugging her or rubbing her back. He slapped her bottom once and she told him she did
not like it. They would wrestle until it progressed to him touching her inappropriately.
She would move away from him to make him stop, and he acted like he was not doing it
on purpose. Although appellant had always told her she looked beautiful when she was
dressed up to go out, he started making such comments daily. While appellant’s
suggestive comments disgusted the victim initially, she somehow, over time, felt closer to
him. Appellant bought the victim a new phone and started messaging her and eventually
started a sexual conversation.
{¶ 7} By March or April 2017, their relationship began to change. Just after the
victim had turned 17 years of age, appellant came home while she was laying on the
couch and started making out with her. He led her into the backroom where he
eventually performed oral sex on her. After the family moved to Perrysburg, Ohio, they
had sex 2-3 times a week while her mother was away. Appellant would leave the house
and return after her mother left. The victim became very obsessed with appellant and
thought she loved him. She promised him she would keep quiet about their relationship
because he convinced the victim her mother would choose appellant over the victim. The
4.
victim had been close to her mother and did not want to lose her. But, she also kept quiet
because she wanted appellant to marry her.
{¶ 8} In May 2017, her mother found the victim’s diary which had an entry
regarding her relationship with appellant and saw text messages on the victim’s phone.
Appellant told her mother the victim could not be believed because she was crazy and
had mental issues.
{¶ 9} Initially, the victim did not want the police involved and denied that she had
been manipulated by appellant because she thought she loved appellant. She admitted
that she told the police the things her mother wanted her to say. However, during an
examination by a Sexual Assault Nurse Examiner (“SANE”), the victim realized she had
been manipulated and brainwashed. Over time, she came to realize she had not really
consented to the sexual activity and that her mother had been right.
{¶ 10} An officer who was first approached by the mother alone testified the
mother told the officer she believed the daughter had been having a sexual relationship
with appellant, who was like a father to her. The mother indicated appellant had denied
the accusations and accused the victim of being depressed or disturbed. The officer
questioned the mother about appellant’s role in the house and was told he did grocery
shopping, laundry, helped with homework, etc., and if she was not at home, he was in
charge.
{¶ 11} A second officer interviewed the mother and the victim separately. The
mother told the officer she and her daughter had been living with appellant as a family,
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appellant played a role in discipline, and appellant and her daughter had a father/daughter
relationship even though the mother retained the ultimate right to make decisions
concerning the victim. The officer further testified the mother’s testimony at trial was
inconsistent with what she had told him initially.
{¶ 12} The victim indicated to the officer she had a good relationship with
appellant and that he helped her with homework and purchased the cell phone for her.
The victim also indicated that except for when appellant was unemployed for health
reasons, he contributed to a joint bank account with her mother. The victim initially
denied the sexual relationship and later indicated she had consented. The officer
explained that she could not have consented if appellant was acting in loco parentis, but
he did not explain the phrase to her. The officer met with the victim a second time to
answer her questions as to why the police were still investigating.
{¶ 13} The text messages downloaded from the victim’s phone were admitted into
evidence. The officer did not find any messages on appellant’s phone, but the messages
on the victim’s phone were consistent with her statements even though the evidence did
not establish who sent the text messages. The social media messages from the victim’s
account were also admitted into evidence. In three separate social media messages,
appellant referred to the victim as his daughter. The officer did not find any messages
where the victim called appellant “dad” or “father.”
{¶ 14} The SANE nurse testified she spoke with the mother alone. The mother
stated she had met appellant online and he moved in with her very quickly. She further
6.
indicated that appellant provided everything for them and was like a father to the victim.
The mother had noticed the victim becoming clingy. The mother also indicated the
victim has Asperger’s Syndrome and ADHD. However, at trial the mother testified that
the victim had been diagnosed with a mild form of Asperger’s Syndrome, but was
expected to grow out of it by late grade school.
{¶ 15} The nurse spoke to the victim alone and she indicated she initially thought
of appellant like a father and was initially put off by his sexual comments. However, as
he continued to text her, she accepted a sexual relationship with him. The nurse further
testified that she explained to the victim how pedophiles groom children. The nurse
wanted to relieve the victim’s guilt about what happened and explain to her why her
mother was upset with the victim. On cross-examination, the nurse further explained she
had been trained to understand how pedophiles use grooming techniques and that she
counseled the victim to give emotional support because the victim felt guilty for the tense
dynamics between the victim and the mother. On redirect examination, the nurse further
explained what grooming involves.
{¶ 16} A forensic investigator testified that an analysis of the rape kit samples
indicated appellant as a contributor with a statistic of greater than 1 in 1 trillion.
{¶ 17} The victim’s mother testified as follows. She and appellant had split up for
a time in 2017, but they reconciled and she is currently engaged to him. When appellant
and the mother first lived together, they had a joint account and paid the bills jointly. She
purchased the victim’s clothing out of the joint account. Appellant’s name was on the
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lease. While the mother consulted with appellant about the victim, the mother believed
she had sole authority over matters concerning the victim. Likewise, the mother testified,
the victim refused to ask appellant’s permission since he was not her father. The mother
never saw appellant exert control over the victim. The victim was not close to her
biological father. Although the mother wanted the victim and appellant to have a
father/daughter relationship, it never developed. The mother believed appellant and the
victim had a great relationship until she found the victim’s diary. The mother explained
that appellant had called the victim his daughter once on social media to encourage her as
she took an exam. However, he never called her his daughter otherwise.
{¶ 18} When the mother confronted appellant about the diary, he did not deny the
relationship. The mother explained the inconsistency of her statements as stemming from
her later realization that everything was not as it had initially seemed and that the victim
had not been honest. As a result, the mother sent the victim to live with her grandparents.
{¶ 19} In his sole assignment of error, appellant challenges that his trial counsel
rendered ineffective assistance of counsel under both the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section 10, Ohio
Constitution. He presents three alleged errors for our review.
{¶ 20} Appellant bears the burden of proving that his counsel was ineffective since
an attorney is presumed competent. Strickland v. Washington, 466 U.S. 668, 689, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio
9423, 108 N.E.3d 1, ¶ 41. To establish a claim of ineffective assistance of appointed
8.
counsel under either the United States or Ohio Constitution, the defendant must show that
his counsel’s representation “fell below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance.” State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus;
Strickland at 687.
{¶ 21} While the reasonableness of the attorney’s conduct must be considered in
light of the facts of each case, reasoned tactical decisions generally cannot form the basis
for a claim of ineffective assistance of counsel. Strickland at 689; State v. Elmore, 111
Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 116. Generally, the scope of cross
examination is considered to be within the scope of debatable trial strategy. Id.; State v.
Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 90. The fact that the
strategy is not successful is irrelevant; the deficiency must have resulted in prejudice to
the defendant by an unreliable or fundamentally unfair trial. State v. Carter, 72 Ohio
St.3d 545, 558, 651 N.E.2d 965 (1995).
{¶ 22} We begin by addressing whether appellant’s trial counsel substantially
violated his duty to represent appellant.
{¶ 23} Appellant first argues his trial counsel was ineffective because his opening
statements and cross-examination of the victim reveal a defense strategy of admitting a
sexual relationship and contesting whether the victim believed appellant was acting “in
loco parentis.” Appellant asserts, this erroneous strategy caused trial counsel to focus on
the victim’s beliefs rather than the elements the state was required to prove, which was
9.
whether appellant voluntarily assumed the duties of a parent and supported the child.
Furthermore, appellant asserts that his trial counsel’s cross-examination was based on
assumed facts contrary to appellant’s interests, which actually brought out unsolicited
testimonial evidence supporting the “in loco parentis” element.
{¶ 24} The elements of sexual battery offense alleged are: “engaging in sexual
conduct with another, not the spouse of the offender when * * * [t]he offender is the * * *
person in loco parentis of the other person.” R.C. 2907.03(A)(5). This statute does not
define the element of “in loco parentis” and, therefore, it must be given its common,
ordinary, and usual meaning. State v. Funk, 10th Dist. Franklin No. 05AP-230, 2006
Ohio-2068, ¶ 55-56. Whether a person stands in loco parentis to a child is a question of
fact the jury must determine. State v. Butler, 3d Dist. Defiance No. 4-11-13, 2012-Ohio
5022, ¶ 8, quoting State v. Knepley, 3d Dist. Henry No. 7-11-02, 2012-Ohio-406, ¶ 15,
citing State v. Caton, 137 Ohio App.3d 742, 750, 739 N.E.2d 1176 (1st Dist.2000).
{¶ 25} The Ohio Supreme Court addressed the meaning of “in locos parentis” in
State v. Noggle, 67 Ohio St.3d 31, 615 N.E.2d 1040 (1993), paragraph one of the syllabus
(applying a prior version of the statute), superseded by statute on other grounds as stated
in State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 35-37 (the statute
has been amended several times to expand the coverage to conduct by adults who had
“special authoritative relationships with minors or other vulnerable populations” not
covered by the first six enumerated types of offenders). The Noggle court noted that
“R.C. 2907.03(A)(5) was quite obviously designed to be Ohio’s criminal incest statute,”
10.
and the General Assembly has indicated its intent to expand the family unit to include
more than biological parents and those with legal parental rights. Id. at 33. The court
reasoned the term includes “a person who has assumed the dominant parental role and is
relied upon by the child for support. * * * Simply put, the statute applies to the people the
child goes home to.” The court also noted that “[a] person ‘in loco parentis’ was grouped
with guardians and custodians in the statute because they all have similar responsibilities.”
Id.
{¶ 26} Appellate courts have expanded upon the definition of the term. In State v.
Funk, 10th Dist. Franklin No. 05AP-230, 2006-Ohio-2068, the court held “the
assumption of the in loco parentis relationship is primarily a question of intention, which
is shown by the ‘acts, conduct and declaration of the person [allegedly standing] in that
relationship.’” Id. at ¶ 71 (citations omitted). Support and maintenance are important
indicators of such intent.
{¶ 27} The Tenth Appellate District has identified ten considerations for
determining whether a person is acting in loco parentis: “(1) the person is charged with a
parent’s rights and responsibilities; (2) the person has assumed the same duties as a
guardian or custodian; (3) the person has assumed a dominant parental role; (4) the child
relies upon the person for support; (5) the child ‘goes home’ to the person; (6) the
person’s relationship with the child is close, supportive, and protective; (7) the person has
the intention of acting as a parent, which is shown by the acts, conduct, and declaration of
the person; (8) the person intentionally assumes the obligations incidental to the parental
11.
relationship; and (9) the person is the primary caretaker for the child while the biological
parent is absent due to, for example, employment.” State v. Abubakar, 10th Dist.
Franklin No. 11AP-440, 2011-Ohio-6299, ¶ 13.
{¶ 28} In the case before us, appellant’s trial counsel questioned the victim’s
perception of appellant as a father figure. We reject appellant’s underlying argument that
the victim’s perception of the defendant as a father figure is irrelevant because that
questioning on direct examination brought out testimony describing appellant’s parental
like conduct. Cross-examination of the victim served to challenge the victim’s credibility
regarding appellant’s conduct and also raised the question of whether appellant’s conduct
was parental or merely typical of someone who merely lives in a household as a
boyfriend of the victim’s parent.
{¶ 29} Admittedly, trial counsel did not control the victim’s responses on cross
examination to prevent the victim from making additional statements beneficial to the
prosecution. We also agree that trial counsel’s questions assumed appellant helped
prepare meals and had a joint account with the victim’s mother, which elicited the
victim’s testimony that appellant pitched in with household meals and appellant made
more money than the victim’s mother. However, similar facts were also presented
through the victim’s direct testimony that her mother and appellant shared the rent
payment and household expenses and that appellant had cooked some dinners.
Furthermore, the cross-examination also elicited evidence that benefited appellant, such
12.
as the fact that the victim had never referred to appellant as “dad” in her texts, social
messages, or in a birthday card.
{¶ 30} Upon a review of the record, we conclude that trial counsel’s focus on
cross-examination of the victim was a matter of debatable trial strategy and did not
constitute ineffective assistance of counsel.
{¶ 31} Second, appellant argues his trial counsel rendered ineffective assistance by
failing to prevent the introduction of grooming evidence. Appellant asserts such “other
acts” evidence were irrelevant under Evid.R. 401 because grooming is not an element of
sexual battery. Both appellee and appellant raised the issue of whether appellant
manipulated the victim in their opening statements. Furthermore, defense counsel
inquired further into the issue of “grooming” during the cross-examination of the victim
and the SANE nurse.
{¶ 32} The issue before us is not plain error, but ineffective assistance. We begin
by determining whether trial counsel breached his duty to appellant by failing to object to
and prevent the admission of grooming evidence in this case.
{¶ 33} Evidence of “other acts” of the defendant are not admissible at trial for the
purpose of proving the defendant has a character trait and that he acted in the instant case
in conformity with that character trait. Evid.R. 404(B); R.C. 2945.59. However, such
evidence is admissible for a proper purpose, such as proving “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. This rule
is to be strictly construed against admissibility. State v. Conway, 109 Ohio St.3d 412,
13.
2006-Ohio-2815, 848 N.E.2d 810, ¶ 61, quoting State v. Broom, 40 Ohio St.3d 277, 533
N.E.2d 682 (1988), paragraph one of the syllabus.
{¶ 34} If the “other acts” evidence is alleged to be admissible for the purposes
identified under Evid.R. 404(B) and noted above, the trial court must conduct a three-step
analysis to determine if the “other acts” evidence should be admitted. State v. Williams,
134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19-20. First, determine
whether the “other acts” evidence makes a fact of consequence more or less probable?
(Evid.R. 401). Second, determine whether the “other acts” evidence is presented for a
legitimate purpose or only to prove the defendant acted in accordance with his character
trait? (Evid.R. 404 (B)). Third, determine whether the “probative value of the other acts
evidence is substantially outweighed by the danger of unfair prejudice.” (Evid.R. 403).
Id. at ¶ 20.
{¶ 35} The state argues that grooming evidence was relevant in this case as
evidence of appellant’s plan, scheme, motive and/or intent. We disagree. The cases cited
by the state involved the issue of the identity of the perpetrator, which was proven by a
common modus operandi utilized by the defendant regarding other victims. See Williams
at ¶ 5; State v. Horn, 2018-Ohio-779, 108 N.E.3d 158, ¶ 23 (6th Dist.). In the case before
us, the charge is sexual battery and at trial appellant did not deny the sexual relationship
with the victim, but challenged that he was not acting “in loco parentis” to the victim at
the time. The issue of grooming is not, therefore, probative of any fact the state was
14.
required to prove in this case and its admission served no legitimate purpose for the
prosecution. We discuss prejudice from the admission of the grooming evidence below.
{¶ 36} As noted above, a particular line of cross-examination can be a debatable
trial strategy. Although it would not be a debatable trial strategy to draw out irrelevant
evidence, the cross-examination in this case regarding the issue of grooming did serve to
challenge the victim’s overall credibility by suggesting she was unduly influenced by the
SANE nurse who had suggested grooming. Therefore, we find the cross-examination
was a debatable trial strategy.
{¶ 37} Third, appellant contends his defense counsel rendered ineffective
assistance because throughout the trial he failed to control the witnesses to limit their
responses. Appellant points to the cross-examination of the police officer about the
mother’s testimony at trial which conflicted with her earlier statements to him as to the
victim’s credibility. Appellant asserts that in response to the open-ended question, the
officer was permitted to testify that his view of the case had not changed and was based
on the mother’s initial reactions. Appellant asserts trial counsel should have questioned
the mother further so she could have explained her change in testimony.
{¶ 38} Upon a review of the entire record, we find this cross-examination did not
bring out any new evidence. Furthermore, the cross-examination allowed the mother the
opportunity to explain she changed her opinion after living with the victim for the month
following discovery of the relationship between the victim and appellant. Therefore, we
find trial counsel’s method of cross-examination was a matter of debatable trial strategy.
15.
{¶ 39} The second step in the analysis of whether trial counsel rendered
ineffective assistance of counsel is to determine if any violation of the attorney’s duty to
his client resulted in material prejudice to appellant. State v. Holloway, 38 Ohio St.3d
239, 244, 527 N.E.2d 831 (1988).
{¶ 40} Upon a review of all of the evidence, we find appellant has failed to
demonstrate such material prejudice. Appellant has failed to show the outcome of the
trial would have been different without the evidence introduced through cross
examination because the same or similar evidence was also presented through direct
examination of the witnesses.
{¶ 41} Furthermore, although there were references about manipulation and
testimony was introduced regarding the concept of grooming, the prosecution also
emphasized in its closing arguments that the issue of the victim’s consent to the sexual acts
was irrelevant. The prosecution explained the only issue was whether appellant committed
the acts of sexual battery while in a position of “in loco parentis” to the victim when she
was 16-17 years old. Likewise, the trial court instructed the jury to find the elements of the
charged offense, which did not include the evidence of grooming. See State v. Thomas, 2d
Dist. Montgomery No. 27362, 2018-Ohio-4345, ¶ 68. We presume the jury followed the
jury instructions. State v. Ireland, Slip Opinion No. 2017-0344, 2018-Ohio-4494, ¶ 45.
{¶ 42} In this case there was overwhelming evidence of appellant’s parental-like
actions based on the testimony of the victim, her mother’s prior statements, and the
statements the victim made to the nurse and police, as well as appellant’s social media
16.
messages referencing the victim as his daughter. Therefore, we cannot find that the
outcome of the trial would have been different if the consent or grooming issue had not
been raised and evidence relating to the victim’s “consent” to the sexual conduct had
been excluded.
{¶ 43} Finally, appellant argues the cumulative effect of his trial counsel’s errors
deprived appellant of a fair trial.
{¶ 44} The doctrine of cumulative error provides that “a conviction will be
reversed where the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of numerous instances of trial court
error does not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d
49, 64-65, 656 N.E.2d 623 (1995), citing State v. DeMarco, 31 Ohio St.3d 191, 509
N.E.2d 1256 (1987), paragraph two of the syllabus. In the case before us, this doctrine is
not applicable because we did not find multiple instances of harmless error.
{¶ 45} Accordingly, we find appellant’s sole assignment of error not well-taken.

Outcome: Having found that the trial court did not commit error prejudicial to
appellant and that substantial justice has been done, the judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

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