State v. Herns

[Cite as State v. Herns, 

.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                FRANKLIN CHARLES HERNS,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 22 MA 0109


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 22 CR 148

                                         BEFORE:
                   Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges.


                                               JUDGMENT:
                                                 Affirmed.


Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant
Mahoning County Prosecutor, for Plaintiff-Appellee and

Atty. Louis M. Defabio, for Defendant-Appellant.



                                      Dated: December 21, 2023
                                                                                       –2–



Robb, J.

       {¶1}   Appellant, Franklin C. Herns, appeals the judgment convicting him of one
count of rape in violation of R.C. 2907.02(A)(2) and (B), a first-degree felony, sentencing
him to a minimum of 11 years and up to 16.5 years maximum in prison, and ordering him
to register as a Tier III sex offender and serve five years mandatory post-release control.
       {¶2}   Appellant argues the trial court erred by allowing improper trial testimony;
he was denied a fair trial based on prosecutorial misconduct during trial; and he was
denied the constitutional right to a jury. For the following reasons, we affirm.
                                      Statement of the Case
       {¶3}   In March of 2022, Appellant was indicted and charged with two counts of
rape involving the same victim. Appellant was appointed counsel, entered a not guilty
plea, and was ordered to have no contact with the victim. (April 7, 2022 Judgment.)
       {¶4}   After the exchange of discovery and several Covid-19 related continuances,
the case was heard at a jury trial commencing September 26, 2022.
       {¶5}   The jury returned its verdict on September 29, 2022 and found Appellant
guilty of one count of rape and not guilty of the other. (September 30, 2022 Judgment.)
Appellant was sentenced at a hearing on October 6, 2022. (October 7, 2022 Judgment.)
Appellant filed the instant appeal on October 17, 2022.
       {¶6}   During opening, the state alleged the evidence would establish Appellant
anally, orally, and vaginally raped the victim. (Trial Tr. 298.)
       {¶7}   The defense alleged during its opening statement the victim willingly had
sexual relations with Appellant, but because she was trying to turn her life around, she
accused Appellant of raping her. She was upset with him since he lured her into having
sex with him. In addition, because she lived with the father of her children at the time,
she needed a story to cover for her absence that day when she was supposed to be
cleaning her home in preparation for their child’s birthday party. The defense contended
her story that Appellant held her against her will for four hours while she had her cellular
phone in her possession and was only .1 miles from her home is not credible. (Trial Tr.
301-308.)




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       {¶8}   The victim T.R. testified first. She was 29 years old at the time and had
three children under the age of eight. She lived with her children and her children’s father,
Demetrius Dembert, at the time of the offense. The two were no longer in a romantic
relationship with one another and lived together for convenience.
       {¶9}   T.R. explained she and Appellant were “talking with one another” in
approximately 2017 while they both attended Youngstown State University. They were
not exclusive. They dated for approximately one or two months. During this time, she
had sex with Appellant about two or three times. T.R. had also known him before,
explaining she attended eighth grade with Appellant. According to T.R., their relationship
ended because Appellant wanted to date the mother of his children and T.R. at the same
time, and T.R. did not agree to that situation. She did not recall Appellant being violent
or intimidating when they previously dated. (Trial Tr. 311-317.)
       {¶10} Days before the incident, T.R. initiated contact with Appellant via Facebook
Messenger. He propositioned her for sex, and she declined indicating that she was
looking for a committed relationship and father figure for her children.
       {¶11} On the date of the offense, Appellant messaged T.R. and indicated he was
coming to her home. The messages began that day with Appellant messaging T.R. at
5:01 A.M. saying, “Wake up.” At 11:56 A.M. that same day, the two began a dialogue
which ended with Appellant picking T.R. up from her home.
       {¶12} During her testimony, she explained Appellant knocked on the window of
her home, and she sent him away. He messaged her again and then said he was going
to come back in five minutes. In one message Appellant stated: “im tryna suck on yo
clit.” T.R. responded to this message stating: “I’m not having sex” with four crying emojis.
When Appellant came back a second time that day, T.R. left with him. She left home in
her nightgown, underwear, and had no bra on at the time. She explained during her
testimony that she had no intent on going with him that day. She did not tell her household
members she was leaving because she only thought she would be gone about five
minutes and they would drive around the block a few times. She wanted someone to talk
with, and did not think she would be gone long. (Trial Tr. 318-353; State’s Ex. 1.)
       {¶13} Appellant was driving a van and initially told T.R. to get in the back, but she
did not. They drove to a gas station where he purchased two bottles of wine. He then



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drove to his house, which was nearby. She said his house was deplorable and smelled
like dog. He had a pit bull, and T.R. is afraid of dogs. She said she went upstairs with
Appellant in part to avoid the dog. She believed his mother lived there at the time as well.
T.R. sat on a chair in his bedroom, and Appellant sat on a mattress which was on the
floor. They talked and had a normal conversation for about 15 to 20 minutes. (Trial Tr.
354-361.)
       {¶14} Appellant then attempted to become intimate with her. She is 4’10” tall and
he is about six feet tall. She resisted, but he easily overpowered her. She was asked on
direct examination:
       Q. And what did he do to initiate that?
       A. He was like pulling me over to the bed with him, but I’m like I’m fine right
       here. But he is stronger than me, so he got me onto the bed with him.
       Q Okay. And what did he then do when you were on the bed with him?
       A. Just trying to like pry my legs open, get my underwear off. And I’m trying
       like to push him off me.
       ***
       A. I remember saying, please, I really, really don’t want to have sex right
       now.
       ***
       A. He’s able to get himself between my legs and my underwear off and
       penetrate his penis.
(Trial Tr. 362-363.)
       {¶15} When she indicated she did not want to have sex, he kept telling her to “shut
the fuck up.” (Tr. 364.) After the vaginal penetration, she stood up thinking he would let
her leave. Instead, he “grabbed my arm and literally threw me back into the room.” (Tr.
365.) She initially tried to resist before giving up because he covered her mouth and told
her to stop yelling. She did not think she was going to get out of his house alive. She
said he repeatedly strangled her. T.R. said she has asthma and could not breathe. She
described how he was covering her mouth and nose and explained, “it seemed like he
was like experimenting to see how long I could go without breathing.”




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       {¶16} At a certain point, she stopped fighting him because she thought submitting
would end the situation. She said she was praying out loud and thinking she would never
see her children again. The assault lasted about four hours. She said he vaginally and
anally raped her multiple times. He also forced her to perform oral sex on him multiple
times. Toward the end, Appellant told her she “needed that.” He drove her home and
had her sit in the backseat. (Tr. 366-372.)
       {¶17} She said that when she got home, she broke down at the sight of her
children because she did not think she would ever see them again. She was gone about
four hours. The father of her children was there as well. She told him what happened,
and he told her to call 911.   The police and ambulance came.
       {¶18} The 911 call was played at trial. T.R. told the operator she had been “raped
over and over again.” She said Appellant raped her, and he forced her to drink liquor.
She said he would not let her go for hours. She said he was pulling her hair, and she
could not breath. She described the color of his house and said it was deplorable, and
then said, “I should’ve known.” She was crying. She also said, “I thought we were going
to have a conversation.” She told the operator she had left her underwear at his house
and he would not let her use the bathroom. (State’s Ex. 2.)
       {¶19} T.R. also testified that Appellant messaged her again after he dropped her
off stating “you know I care.” She blocked him after that. (Trial Tr. 378.) He also came
to her door a few weeks later. She did not answer it, but called the police. Dembert
argued with him outside. (Trial Tr. 379.)
       {¶20} During cross-examination of T.R., she explained that she had been trying
to drink less alcohol. She said she was in recovery, but she later testified she had been
drinking on the date of the offense before she left home with Appellant.         She then
explained she had been drinking less than before, but said she was still drinking, not just
every day. She drank “half a bottle of cheap wine” before she left with Appellant on the
date of the offense. (Trial Tr. 405-406, 437.) When asked why she went with him when
he wanted to have sex, she said, “I knew that’s what he wanted, but I thought we were
friends, so I didn’t think he’d take it from me.” (Trial Tr. 431.)
       {¶21} T.R. agreed on cross-examination that she lied to the detective about
Dembert staying with her because she did not want to lose her home. She was receiving



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housing assistance through a domestic violence program and had entered an agreement
stating he would not be living with her. (Trial Tr. 447.)
       {¶22} T.R. also explained that she did not feel like one of the two officers who
responded to her 911 call believed her story. She could tell he thought she was lying
based on the way he was speaking to her. She said he “tried to insinuate that the situation
was different than what I was saying it was. And so, I kind of just shut down from that
officer because it seemed like he didn’t believe me anyway.” (Trial Tr. 452.)
       {¶23} Dembert, the father of T.R.’s three children testified. He explained he and
T.R. were no longer in a romantic relationship, but they co-parented the children. He lived
with her to help with their kids. On the date of the incident, Dembert was asleep when
she left. She did not tell him she was leaving or where she was going. She did not
respond to his calls or texts. She finally returned home about 6 p.m. He said she was
distraught and shaking. Dembert recalled that she looked “like she had seen a ghost.”
She told him she had been raped. (Trial Tr. 478-479.)
       {¶24} T.R. called 911 and Youngstown Police Department Patrol Officer Darrick
Ball was the first of two officers to arrive. He conducted T.R.’s initial interview before she
left in an ambulance. When Ball arrived, she was shaking and crying. He described her
as hesitant and afraid. Ball said he believed T.R. and her complaint seemed legitimate.
He did not see any physical markings, injuries, bruising, or bleeding on her. Ball did not
see any marks on her neck. (Trial Tr. 501-504.)
       {¶25} Youngstown Police Department Commander of Special Victim’s Unit
Jessica Shields also interviewed T.R. and investigated the case. Shields attempted to
contact Appellant at least 10 times. She went to his house and messaged him on
Facebook. She eventually tracked Appellant down and secured his DNA per a warrant.
Appellant informed her he was homeless, so she had animal charities secure the dog
from inside the home. Shields described his home as deplorable. She smelled urine and
feces from the outside of the home. The side door was broken, and the home was open.
(Trial Tr. 537-546.)
       {¶26} Shields agreed that T.R. had lied to them about Dembert living with her
because T.R. thought she would lose her house. Shields was asked if she believed T.R.,
and she said she did. During Shields’ testimony, she described that Officer Medvec, the



Case No. 22 MA 0109
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other initial investigating officer did not believe T.R.’s allegation. Medvec had told Shields
he did not believe T.R. She was then asked about the report by Medvec, who did not
believe T.R.’s story. Shields testified, “I feel that was uncalled for, and his wording of the
report was inappropriate, but he made a judgment right away that, no, this didn’t happen.”
(Trial Tr. 553-561.)
       {¶27} Medvec was not called to testify by either side, and his referenced report
was not introduced as an exhibit.
       {¶28} David Miller, a forensic scientist in the DNA unit with the Ohio Bureau of
Criminal Investigations, testified about the sexual assault kit test results. He confirmed
that three of the swabs taken from T.R. showed two DNA contributors. One of the
contributors was consistent with T.R. and the other was consistent with Appellant’s DNA.
Miller stated, “the estimated frequency of occurrence of that DNA profile was rarer than 1
in 1 trillion unrelated individuals.” (Trial Tr. 519-525.)
       {¶29} Heather Bayless, the nurse practitioner who examined T.R. on the date of
the incident, also testified. At the beginning of her testimony, she was asked if she
remembered T.R. She said yes and stated, “you just have those patients that kind of just
tug at your heart that you remember them. * * * They leave an imprint.” (Trial Tr. 570.)
Defense counsel objected to her statement, but it was overruled. After being told to
proceed by the court, Bayless said she has seen thousands of patients. Bayless also
stated she has performed more than 100 sexual assault assessments, and she sees
about 35 patients per day. She also stated: “But there's those specific patients that will
leave an imprint on your heart, and it's because of either the trauma that they went through
-- I remember my very first pediatric trauma victim who did pass away. I remember the
day of the five children that died in the house fire. Those are things that you do not forget.”
(Trial Tr. 570.)
       {¶30} According to Bayless, when T.R. arrived, she had a frozen or “flat affect”
emotionally, which indicated she was in a state of shock.        Bayless took the history of
what happened, according to T.R. Bayless said T.R. felt comfortable going with Appellant
to his home since she had been there before and his mother lived there. T.R. told Bayless
they talked for quite some time before Appellant “switched and became very aggressive.”
T.R. told her it was not consensual sex. T.R. had said no, but was afraid, and he was



Case No. 22 MA 0109
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threatening her. Appellant had told T.R. that if she kept talking, it would “not end well for
her.” When T.R. told Appellant she needed to use the bathroom, he told her to go to the
bathroom on the mattress.        T.R. told Bayless that when the abuse finally stopped,
Appellant began rambling and told T.R. he loved her. When she got home, she hugged
her children, told their father what happened, and called 911. (Trial Tr. 563-579.)
        {¶31} Bayless agreed T.R. had no physical injuries, including no signs of
strangulation, and no damage to her vaginal or anal regions. Bayless also said this is not
unusual. T.R. did complain about soreness. T.R. was very emotional and crying. Bayless
also recalled that T.R. explained she had been drinking less often, and although she did
not stop drinking altogether, she was drinking fewer times per week. (Trial Tr. 578-593.)
Bayless was asked on redirect whether she believed T.R.’s story, and she said yes. (Trial
Tr. 604.)
        {¶32} Appellant testified on his own behalf. He said that he and T.R.’s prior
relationship ended in part because she drank too much. He said her drinking was a
“turnoff.”
        {¶33} On the date of the incident, Appellant said T.R. willingly went upstairs with
him and sat on his bed. They talked for about 1.5 to 2 hours before having consensual
sex. He promised he would help her financially and believes she was angry when he did
not give her as much money as she expected. She complained it was not enough.
Appellant said T.R. was already drinking that day before he picked her up. His bedroom
window was open during the encounter, and his neighbors were outside. (Trial Tr. 617-
650.)
        {¶34} At the close of evidence, the jury asked a few questions, one of which was:
“Why wasn’t Officer Medvec a witness?” The trial court judge advised the jury he could
not answer this question, but informed them to rely only on the evidence presented and
directed the jury not to speculate. (Trial Tr. 736.)
        {¶35} The jury found Appellant not guilty of the first count of rape, but guilty of the
second rape offense. Appellant raises three assignments of error.
                First Assignment of Error: Nurse’s Testimony Invoking Sympathy
        {¶36} Appellant’s first assigned error asserts:




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       “The trial court abused its discretion and erred in admitting testimony, over
objection, from the SANE nurse that treating [the victim] had left an imprint on her heart
and affected her emotionally, as said testimony was irrelevant, prejudicial and highly
inflammatory.”
       {¶37} Appellant claims the trial court should have excluded the nurse’s testimony
in which she said T.R. “tugged at her heart” and left an imprint on her. As stated, she
testified on direct:
       Q Do you specifically remember this patient?
       A I did, yes.
       Q And why do you specifically remember her?
       A You just have those patients that kind of just tug at your heart that you
       just remember them.
(Trial Tr. 570.)
       {¶38} After the defense objection was overruled, the court stated: “Go ahead.”
This prompted Bayless to continue her thought, stating:
       I mean, I probably take care of 35 patients a day. I work anywhere from 200
       hours a month alone in the emergency department, so I've seen thousands.
       But there's those specific patients that will leave an imprint on your heart,
       and it's because of either the trauma that they went through -- I remember
       my very first pediatric trauma victim who did pass away. I remember the day
       of the five children that died in the house fire. Those are things that you do
       not forget.
(Trial Tr. 570.)
       {¶39} Appellant claims Bayless’ testimony as to why she remembered T.R. was
irrelevant, immaterial to guilt, and was highly prejudicial. He claims the court should have
excluded her statement as violative of Evid.R. 403(A) since it improperly aroused the
jurors’ emotions and sympathy toward T.R. Appellant claims his conviction must now be
reversed. He also claims Bayless’ testimony in this regard is improper victim-impact
testimony.
       {¶40} Trial courts have broad discretion in admitting evidence.          We review
decisions regarding the admission of evidence for an abuse of discretion, and must not



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disturb a trial court’s decision unless there is an abuse of discretion and the defendant
has been materially prejudiced by the admission. State v. Issa, 

, 

 (2001).
       {¶41} To the extent Appellant claims Bayless’ testimony was improper victim-
impact evidence, we disagree. Victim-impact evidence is evidence introduced during the
penalty phase of a death-penalty case. State v. Graham, 

, 2020-Ohio-
6700, ¶ 113. Furthermore, victim-impact evidence is evidence that relates “to the victim's
personal characteristics and the impact that the crimes had on the victim's family.” State
v. Graham, 

, 

, citing State v. McKelton, 

, 

, 

; and Payne v. Tennessee, 

, 

 (1991). Because this is not a death-penalty case and is not testimony
about the impact on T.R.’s family, Appellant’s argument that this is improper victim-impact
evidence lacks merit.
       {¶42} Appellant’s other contention is that Bayless’ testimony was highly
inflammatory and prejudicial. Evid.R. 403(A) states: “Exclusion Mandatory. Although
relevant, evidence is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”
       Unfair prejudice is that quality of evidence which might result in an improper
       basis for a jury decision. Consequently, if the evidence arouses the jury's
       emotional sympathies, evokes a sense of horror, or appeals to an instinct
       to punish, the evidence may be unfairly prejudicial. Usually, although not
       always, unfairly prejudicial evidence appeals to the jury's emotions rather
       than intellect.
Oberlin v. Akron Gen. Med. Ctr., 

, 

 (2001), quoting
Weissenberger, Ohio Evidence, Section 403.3, at 85-87 (2000).
       {¶43} As alleged, Bayless’ testimony likely did appeal to the jurors’ sympathies,
but it was not unfairly prejudicial. Bayless was relaying T.R.’s narrative of the events,
including how she was repeatedly raped and threatened.            This testimony was not
improper and not unfairly prejudicial since this case involved allegations that Appellant
held T.R. against her will and repeatedly raped her.        The allegations alone invoke
emotional sympathies. The state was attempting to elicit testimony about T.R.’s condition



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after the offenses to show she was in shock when Bayless compared T.R. to her prior
patients.
       {¶44} The prosecutor asked in her follow-up question, “What was [T.R.’s]
demeanor like when you first encountered her?” This question elicited Bayless’ testimony
about T.R.’s observable condition on the date of the offense. The state was attempting
to elicit testimony showing that based on Bayless’ experience, T.R.’s demeanor was
consistent with a person who was in shock.
       {¶45} Bayless’ description of T.R.’s condition and her perception of T.R.’s
condition were relevant and not unfairly prejudicial since Bayless was describing the
victim on the date of the offense. Had T.R. been playing tag with her children in the
waiting room, this would have been equally relevant evidence about her condition on the
date of the offenses. The victim’s physical and emotional condition on the date of the
offense were relevant and proper since it tends to establish that T.R. was raped consistent
with the charges against Appellant.
       {¶46} Appellant’s counsel objected to Bayless’ testimony that she remembered
T.R. because she appeared traumatized and she “tugged at her heart.” Her testimony in
this regard, was relevant to show T.R.’s condition on the date of the offense and not
unfairly prejudicial. “Evidence relating to the facts attendant to the offense * * * is clearly
admissible * * *.” State v. Fautenberry, 

, 

 (1995).
       {¶47} Bayless described how T.R.’s disposition changed during the exam. Her
flat or frozen affect, indicating shock, changed when Bayless initiated the physical
examination of T.R.’s vaginal and rectal areas. At this point, T.R. became very emotional
and was crying. (Trial Tr. 585-586.)
       {¶48} In light of the foregoing, we conclude Bayless’ objected to testimony,
including her statement that T.R. left an imprint on her and “tugged at her heart” were not
unfairly prejudicial and did not affect the fairness of the proceeding.
       {¶49} However, Bayless’ references to children dying and Bayless’ implication
that treating patients involved in those events impacted Bayless in a comparable way may
have improperly appealed to the jurors’ emotions. After the defense objection was
overruled, Bayless made these additional statements. Yet, her statements in this regard
were not objected to and were not in response to a question by the state, but were



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seemingly spontaneous. Because this was not objected to testimony, it is subject to plain
error review. Appellate courts should notice plain error “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State
v. Long, 

, 

 (1978), paragraph three of the syllabus.
       {¶50} Because Appellant has not shown the outcome would have been different
absent Bayless’ statements in this regard, we do not find plain error. State v. Barnes, 

, 

 (2002). This assigned error is overruled.
                        Second Assignment of Error: Improper Vouching
       {¶51} Appellant’s second assignment asserts:
       “The Appellant was denied a fair trial, as guaranteed by the Fourteenth
Amendment to the United States Constitution and Article I, Sections 1, 10 and 16 of the
Ohio Constitution, due to repeated instances of prosecutorial misconduct, including
having police officers and the SANE nurse vouch for the credibility and truthfulness of
[the victim], and for using an improper argument during closing arguments.”
       {¶52} Appellant divides this assignment into four sub-arguments.            First and
second, he claims improper vouching by the state’s witnesses encroached the province
of the jury and is plain error warranting reversal. Third, Appellant contends his trial
attorney’s failure to object to this testimony is ineffective assistance of trial counsel. And
last, Appellant claims the prosecutor’s closing remarks improperly appealed to the jury’s
emotions and deprived him of a fair trial.
       {¶53} We address Appellant’s first two sub-arguments together.            As alleged,
Commander Shields testified she believed T.R., but she also was asked about Officer
Medvec’s report and the fact that he did not believe T.R. Nurse Practitioner Bayless
testified she believed T.R.’s story, and Officer Ball also stated he believed T.R. As stated,
Appellant did not object to any of this testimony.
       {¶54} Because there was no objection, Appellant waives all but plain error.
Appellate courts may notice “[p]lain errors or defects affecting substantial rights * * *
although they were not brought to the attention of the [trial] court.” Crim. R. 52(B).
Appellate courts should notice plain error “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 

, 

 (1978), paragraph three of the syllabus. Plain error is an



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obvious deviation from a legal rule that affects the outcome of the trial. State v. Barnes,

, 

 (2002). The appellant must show the outcome
would have been different absent the plain error. 

       {¶55} Appellant contends these three witnesses encroached the jury’s function of
determining T.R.’s veracity, and allowing such “vouching” or “bolstering” testimony is
reversible error. He asserts the vouching was significantly troubling in light of the number
of witnesses testifying as to the believability of T.R. and since two of them were police
officers, who may be perceived as experts.
       {¶56} The lead Ohio Supreme Court case on improper vouching, State v. Boston,

, 

 (1989), generally held a witness may not testify
as to their opinion of the veracity of the statements of a victim “because it is the fact-finder
who bears the burden of assessing the credibility and veracity of witnesses.” 

       {¶57} Boston involved a child victim deemed incompetent to testify, but the
child’s doctor testified and stated the child had “not fantasized her abuse and that [the
victim] had not been programmed to make accusations against her father.” Boston was
reversed and remanded for a new trial finding the pediatrician essentially testified the
child “was truthful in her statements.” 

. Boston further found this was “more
than harmless,” explaining:
       We have little difficulty in finding that the admission of this testimony was
       not only improper—it was egregious, prejudicial and constitutes reversible
       error. * * * [S]uch an opinion “ * * * acted as a litmus test of the key issue in
       the case and infringed upon the role of the fact finder, who is charged with
       making determinations of veracity and credibility. * * * In our system of
       justice[,] it is the fact finder, not the so-called expert or lay witnesses, who
       bears the burden of assessing the credibility and veracity of witnesses.”

, quoting State v. Eastham, 

, 

 (1988),
Justice Brown, concurring.
       {¶58} In State v. Hensley, 6th Dist. Lucas No. L-03-1005, 

, the
Sixth Appellate District found plain error and ineffective assistance of trial counsel based
on defense counsel’s failure to object to a prejudicial question and answer directed to a
police detective.   The detective was asked whether he believed another suspect’s



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confession. He indicated he did not, and the state repeated this testimony in its closing
remarks. Id. at ¶ 28-37. The Hensley court explained: “A review of the testimony * * *
suggest[s] that appellant’s trial counsel’s failure to object to the improper question and
answer was a matter of trial strategy * * *. Nevertheless, under the circumstances of this
case, we must conclude that the admission of this evidence amounted to prejudicial
error.” Id. at ¶ 39.
       {¶59} Standing alone, we agree the testimony of three separate witnesses stating
they believed the victim and her story about being raped, constitutes error. This is
particularly true when an investigating police officer expresses an opinion as to whether
a witness is being truthful. State v. Young, 8th Dist. No. 79243, 

, at ¶ 70-
72. However, this court does not conclude this evidence rises to the level of plain error
in light of the unique facts here.
       {¶60} In a he-said, she-said case, the victim’s credibility is paramount. And there
can be no doubt that the outcome of this case turned on the credibility of witnesses and
two competing versions of events—Appellant’s version claiming consensual sex and
T.R.’s version contending she was repeatedly raped during a four-hour period. The fact
that three witnesses testified they believed T.R. alone could be an exceptional case where
the outcome of the trial was affected. This is improper vouching testimony.
       {¶61} In State v. Huff, 

, 

 (1st Dist.2001),
the First District Court of Appeals reversed a conviction, which it referred to as a
“credibility contest,” because a police officer testified he believed the victim.      Huff
concluded the testimony was wholly improper and trial counsel’s deficient performance
was sufficient to undermine confidence in the outcome of the trial. 

. The Huff
court stated: “Because the trial court admitted blatantly inadmissible and prejudicial
evidence, and because of lapses by defense counsel, we grant a new trial.” 

.
       {¶62} Since the decision in Huff, several courts have held that improper vouching
as to a victim’s credibility is harmless if the victim testifies and is subject to cross-
examination. While having a witness testify the victim is telling the truth is error, it is
harmless error if the victim testifies and is subject to cross-examination, there is medical
evidence indicating abuse, and the testimony is cumulative to other evidence. State v.
Thompson, 4th Dist. Washington No. 06CA28, 

; accord State v.



Case No. 22 MA 0109
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Hupp, 3rd Dist. Allen No. 1-08-21, 

. “When the victim testifies, the
jury is able to hear the victim’s answers, witness her demeanor and judge her credibility
completely independent of the other’s testimony concerning the veracity of the victim.”

       {¶63} These courts rationalized that because the jury was able to perceive the
witness and decide the credibility of the alleged victim for themselves, the improper
vouching testimony was rendered harmless. See State v. Smith, 12th Dist. Butler No.
CA2004-02-039, 

; State v. Morrison, 9th Dist. Summit No. 21687,

; State v. Reid, 8th Dist. Cuyahoga No. 83206, 

.
       {¶64} Further, in State v. Marcum, 

, 

 (2nd Dist.),
appeal not allowed, 

, 

, 

, the Second
District found a paramedic’s testimony he found the victim “very believable” plus the
state’s reliance on this bolstering testimony in its closing, did not rise to the level of plain
error. Marcum explained courts must assess plain error from the whole of the trial to
ascertain if the outcome was affected. Id. at ¶ 38.
       {¶65} In Marcum, the court went through the evidence, including the fact that the
victim testified in detail about the offenses and was subject to cross-examination, unlike
the victim in Boston, above. The Marcum court also emphasized the jury’s verdict finding
Appellant not guilty of six of the nine charged offenses made it, “very clear that this was
not a case in which the jury blindly followed the complaining witness's testimony.” Id. at
¶ 44. Because the jury found him not guilty of certain charges, the court found the jury’s
role was not usurped. Instead, the verdict showed the jury independently discerned what
it believed from the victim’s testimony and what it believed from Marcum’s version of the
events. Id.
       {¶66} In the instant case, it is probable the defense may not have objected to the
“vouching” testimony because the defense intended to attack T.R.’s credibility via the use
of similarly improper testimony. As stated, T.R. testified about how she could tell Medvec
did not believe her allegations. Shields reiterated in her testimony that Medvec did not
find T.R.’s story credible and that Medvec had used inappropriate wording in his report.




Case No. 22 MA 0109
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Further, it is reasonable to conclude the defense planned to elicit similar testimony from
Medvec at trial.
       {¶67} Medvec was subpoenaed by the state to appear and testify at trial. He was
also included on the state’s witness list. After a continuance, Medvec was again listed on
a state subpoena in August of 2022. The defense also subpoenaed Medvec to testify in
September of 2022. He was not, however, called by either party to testify at trial.
Nevertheless, defense counsel did elicit testimony about Medvec’s unfavorable report
and that he did not find T.R. credible via testimony and argument.
       {¶68} Furthermore, Shields agreed on cross-examination that T.R. had lied to the
police about Dembert living with her because T.R. thought she would lose her housing
assistance. As to Medvec, Shields stated: “[H]e pretty much relayed his personal opinion
to me that he didn't believe her either. I feel that was uncalled for, and his wording of the
report was inappropriate, but he made a judgment right away that, no, this didn't happen.”
(Trial Tr. 552-554.) Only after this line of questioning, was Shields asked on redirect
examination by the state whether she believed T.R. Shields said she believed her.
       {¶69} As for Bayless’ testimony, the defense objected when it seemed the state
was about to ask Bayless her opinion as to whether she believed T.R. had been raped.
The trial court sustained the objection. Immediately thereafter, the state asked Bayless:
       Q All right. So when you make your findings, do you take into consideration both
       the physical injuries as well as the statement that you get from the patient?
       A Correct.
       Q Okay. And after meeting with this patient, did you believe what she told you?
       A Yes.
(Trial Tr. 604.) There was no objection to the foregoing.
       {¶70} As for Ball, however, he was asked by the state on direct examination if he
believed T.R. and whether she had made what he considered to be a “legitimate
complaint.” He answered yes to both questions with no objection. (Trial Tr. 504.)
       {¶71} Thus, it appears the defense had opened the door and possibly did not
object to the state witnesses’ testimony about whether they believed T.R.’s claims
because the defense planned to elicit the same type of evidence to disprove her
credibility. For whatever reason, however, Medvec did not testify.



Case No. 22 MA 0109
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       {¶72} Based upon Boston and its progeny, we conclude the bolstering testimony
about the victim's veracity was improper.
       {¶73} However, since the defense theory of the case was to show T.R. lacked
credibility via similar vouching testimony, we find the error flowed from defense strategy.
Further, like the facts in Marcum, the jury here returned a guilty verdict on one count, but
found Appellant not guilty of the other. As in Marcum, this shows the jury did not blindly
rely on the improper vouching testimony, but independently weighed the evidence and
determined the witnesses’ credibility. Moreover, as in Thompson, above, and Hupp,
above, T.R. testified in detail about the allegations and was cross-examined, allowing the
jury to independently determine her credibility.
       {¶74} Upon the record before us, we find the outcome of the trial clearly would not
have been different, and thus, there was no plain error.
       {¶75} Accordingly, Appellant’s first and second sub-arguments lack merit.
       {¶76} Appellant’s third sub-argument asserts ineffective assistance of trial
counsel based on defense counsel’s failure to object to this testimony. To establish a
claim of ineffective assistance of counsel, a defendant must show both his trial counsel’s
performance was deficient, in that it fell below an objective standard of care, and the
deficient performance resulted in prejudice. State v. Bradley, 

, 141-
143, 

 (1989), citing Strickland v. Washington, 

, 

 (1984). The burden is on the defendant to prove ineffectiveness of counsel. State
v. Smith, 

, 

 (1985).
       {¶77} Licensed attorneys in Ohio are presumed competent. State v. Calhoun, 

, 

 (1999). In evaluating trial counsel’s performance,
appellate     review     is    highly      deferential     because     of        the   strong
presumption counsel’s conduct       fell   within   the    wide   range     of     reasonable
professional assistance. 

, citing 

. In fact, appellate
courts are prohibited from second-guessing trial counsel’s strategic decisions. State v.
Carter, 

, 

 (1995).
       {¶78} There is no doubt that Appellant’s trial counsel’s defense strategy was to
discredit T.R.’s credibility. To achieve this, defense relied in part on the fact that one of
the initial investigating officers was forthcoming about his belief that her allegations were



Case No. 22 MA 0109
                                                                                           – 18 –


false. Although Officer Medvec did not eventually testify, he was on the witness list for
both sides. Further, Commander Shields testified about Medvec’s negative report during
her testimony, and T.R. also relayed how she could tell he did not believe her story.
Consequently, it seems likely the defense did not object to the state’s “vouching”
testimony because Appellant wanted to rely on similar testimony and evidence.
Accordingly, we conclude Appellant’s trial counsel’s performance was not deficient, and
as such, the first prong of the ineffective assistance of counsel test is not satisfied.
       {¶79} Appellant’s fourth sub-argument asserts his attorney’s failure to object to
the state’s closing arguments, during which the state improperly appealed to the jury’s
emotions, constituted prosecutorial misconduct and denied him a fair trial.
       {¶80} In determining whether prosecutorial misconduct has occurred, we must
determine whether the comments or questions were improper and, if they were, whether
they prejudiced Appellant's substantial rights. State v. Treesh, 

, 480,

, citing State v. Lott, 

, 

 (1990). The
benchmark is “the fairness of the trial, not the culpability of the prosecutor.” Smith v.
Phillips, 

, 

 (1982).
       {¶81} In closing, the defense urged the jury not to believe T.R.’s testimony.
Defense counsel emphasized that T.R. lied about Dembert living with her and how she
was texting Appellant about sex beforehand. The defense also highlighted that Officer
Medvec did not believe her claim that she had been raped from the beginning. So,
counsel argued after her initial interview, she added details and changed her story to
make it more believable. (Trial Tr. 693-697.)
       {¶82} In the state’s rebuttal argument, the prosecutor acknowledged T.R. made
bad decisions on the day of the incident and she had lied to protect her housing
assistance. However, the state also reiterated how several witnesses, including the nurse
and the detective found T.R.’s story credible. The state urged the jury to find T.R. lacked
a motive to make up the rape allegations. (Trial Tr. 704-712.)
       {¶83} There were no objections to the state’s closing. Thereafter, as part of the
jury instructions, the trial court advised: “Evidence does not include opening statements
or closing arguments of counsel. The opening statements and closing arguments of
counsel are designed to assist you. They are not evidence. (Trial Tr. 715.)



Case No. 22 MA 0109
                                                                                       – 19 –




       {¶84} It separately instructed the jury: “You are the sole judges of the facts, the
credibility of the witnesses, and the weight of the evidence.” (Trial Tr. 717.)
       {¶85} A failure to object during closing arguments is frequently part of trial
strategy. State v. Mundt, 

, 

, 

. “A
competent trial attorney might well eschew objecting * * * to minimize jury attention to the
damaging material.” 

 quoting United States v. Payne, 

 (C.A.7, 1984).
Further, “[n]ot every intemperate remark by counsel can be a basis for reversal.” State v.
Landrum, 

, 

 (1990).
       {¶86} Here, it appears the state’s comment and reliance on the “vouching
testimony” was in response to the defense reference to Medvec’s disbelief of T.R. While
the testimony itself was likely improper, both sides relied on this type of generally improper
vouching evidence to support their theory of the case. And while the law generally
discourages and disallows evidence of this nature, upon viewing the trial as a whole, we
cannot conclude the trial was unfair.
       {¶87} Further, the jury was instructed that counsel’s statements made during
closing arguments were not evidence. And there is no reason to believe the jury did not
follow the court's instruction that the jurors are the sole judges on the credibility of the
witnesses. State v. Henderson, 7th Dist. Mahoning No. 16 MA 0057, 

, ¶
10. We must presume the jury followed the trial court's instructions. State v. Vunda, 12th
Dist. Butler No. CA2012-07-130, 

. The fourth sub-argument under
this assignment lacks merit.
       {¶88} Accordingly, this assigned error lacks merit in its entirety.
                       Third Assignment of Error: Unanimous Jury Verdict
       “The Appellant was denied his right to a unanimous jury verdict as guaranteed by
Crim.R. 31(A) and the Sixth and Fourteenth Amendments to the United States
Constitution.”
       {¶89} Appellant contends the trial court erred by giving a jury instruction as to the
definition of rape as including cunnilingus and also defining that term for the jury when
there was no corresponding evidence or argument the defendant committed rape via
cunnilingus. He claims this constitutes an improper alternative means instruction that



Case No. 22 MA 0109
                                                                                            – 20 –


precluded necessary juror unanimity. Appellant asserts in multiple means cases, there
must be evidence corresponding with each alternative means or the manner by which the
offense was committed, and absent such evidence, a presumption of prejudice attaches,
preventing plain error review.
          {¶90} In support of his argument, Appellant claims the jury was confused about
the instructions. They asked the court to explain the two counts after the instructions
were given.
          THE COURT: We were also presented a question this morning: Could you
          explain the two counts? And the answer is no, I cannot explain the two
          counts. You're going to have to figure that one out. You have -- if you haven't
          -- do you have a copy of the instructions back here?
          UNIDENTIFIED JUROR: I believe we do, yes.
          THE COURT: You have to refer to the instructions. I left them with you. If
          you have any questions, hopefully that will help answer any questions that
          you have.
(Trial Tr. 736-737.)
          {¶91} Because Appellant did not object to this instruction at trial, he has waived
all but plain error. Crim.R. 30(A). As stated, appellate courts may notice “[p]lain errors
or defects affecting substantial rights * * * although they were not brought to the attention
of the [trial] court.” Crim. R. 52(B). We, however, should notice plain error “with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.”      State v. Long, 

, 

 (1978),
paragraph three of the syllabus. Plain error is an obvious deviation from a legal rule that
affects the outcome of the trial. State v. Barnes, 

, 

(2002). The appellant must show the outcome would have been different absent the plain
error. 

          {¶92} The state counters this is not a multiple means case because the jury
instruction which Appellant challenges goes to an element of the offense, not the offense
itself.
          {¶93} Appellant was charged and convicted of rape in violation of R.C.
2907.02(A)(2), a first-degree felony, which states: “No person shall engage in sexual



Case No. 22 MA 0109
                                                                                     – 21 –


conduct with another when the offender purposely compels the other person to submit by
force or threat of force.” “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. Penetration, however slight, is sufficient to complete vaginal or
       anal intercourse.
R.C. 2907.01(A).
       {¶94} Both parties rely on State v. Gardner, 

, 

,

, a plurality opinion. Gardner involved an aggravated burglary charge and
conviction. To establish the offense of aggravated burglary, the state must establish, in
part, that the defendant entered the home of another with the purpose to commit “any
criminal offense” inside. Id. at ¶ 32. The jury in Gardner was not instructed on the
underlying offense, and the facts of that case were such that it was unclear what the jury
determined the underlying offense was. The court of appeals found plain error as the
defendant was denied his due process right to juror unanimity about what the underlying
offense was. The issue on appeal was “whether the jurors must agree unanimously as
to which criminal offense a defendant intended to commit during a burglary.” Id. at ¶ 37.
       {¶95} Crim.R. 31(A) requires a jury verdict to be unanimous. However, Gardner
reversed and held in part, “jurors need not agree to a single way by which an element is
satisfied.” Gardner, at ¶ 38, citing Richardson v. United States, 

, 

 (1999). In explaining its decision, Gardner referenced its prior decision
involving this issue in a rape case in which the Supreme Court had rejected this argument:
       [I]n State v. Thompson (1987), 

, 

, an
       aggravated-murder case in which the state alleged that the murder had
       been committed in the course of rape * * *, we rejected the appellant's
       contention that in order to ensure a unanimous verdict, the trial court was
       required to instruct the jury that it needed to agree as to whether he had
       committed a vaginal rape, an anal rape, or both. 

, 

.




Case No. 22 MA 0109
                                                                                             – 22 –


       We held that Ohio's rape statute required a showing of “sexual conduct” and
       that both vaginal intercourse and anal intercourse satisfied the statutory
       definition of “sexual conduct.” We concluded that jurors needed to find only
       that sexual conduct had occurred in order to find the aggravating
       circumstance of rape and that because the statute did not require a specific
       finding as to the type of rape, the trial court did not err by refusing to instruct
       the jury that it must make that finding. 

, 

. We concluded, “The fact that some jurors might have found that
       appellant committed one, but not the other, type of rape in no way reduces
       the reliability of appellant's conviction, because a finding of either type of
       conduct is sufficient to establish the fact of rape in Ohio.” 

Id. at ¶ 43-44.
       {¶96} The Gardner Court continued and explained:
       Similarly, we do not require all jurors to agree whether a defendant raped a
       victim orally, vaginally, or anally, because all three constitute “sexual
       conduct” in violation of the rape statute. In such cases, there is no violation
       of the jury unanimity rule as long as all of the jurors agree that there was
       sufficient penetration to satisfy the “sexual conduct” element of the crime of
       rape. Thompson, 

, 

.
Id. at ¶ 65.
       {¶97} Here, Appellant was charged with two counts of rape. It was alleged, and
corresponding evidence was presented, that Appellant raped T.R. orally, anally, and
vaginally. Although we agree there was no evidence presented that Appellant committed
rape via cunnilingus, the inclusion of an unnecessary definition was harmless since there
was ample evidence by direct testimony that Appellant orally, anally, and vaginally raped
T.R. There is a unanimous verdict that a rape occurred “because all three constitute
‘sexual conduct’ in violation of the rape statute.” Id.
       {¶98} Because notice of plain error is to be taken with utmost caution, under
exceptional circumstances, and only to prevent a miscarriage of justice, we find no plain
error here. State v. Long, 

, 

, 

, paragraph
three of the syllabus.



Case No. 22 MA 0109
                                                                                         – 23 –


       {¶99} This assignment of error is overruled.
                          Fourth Assignment of Error: Manifest Weight
       {¶100} Appellant’s fourth and final assigned error asserts:
       “The jury’s verdict of Guilty was against the manifest weight of the evidence.”
       {¶101} A manifest weight review requires an appellate court to review the
evidence and determine whether this is an exceptional case in which it is patently
apparent the trier of fact lost its way. State v. Thompkins, 

, 

 (1997).
       The * * * weight of the evidence addresses the evidence’s effect of inducing
       belief. * * * In other words, a reviewing court asks whose evidence is more
       persuasive—the state’s or the defendant’s? * * * [A]lthough there may be
       sufficient evidence to support a judgment, it could nevertheless be against
       the manifest weight of the evidence. * * * ‘When a court of appeals reverses
       a judgment of a trial court on the basis that the verdict is against the weight
       of the evidence, the appellate court sits as a “thirteenth juror” and disagrees
       with the factfinder's resolution of the conflicting testimony.’ * * *.
State v. Wilson, 

, 

, 

, ¶ 25.
       {¶102} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 

, 

 (1967), paragraph one of the syllabus. The trier of fact “is free to believe all, some,
or none of the testimony of each witness appearing before it.” State v. Ellis, 8th Dist.
Cuyahoga No. 98538, 

, citing Iler v. Wright, 8th Dist. Cuyahoga No.
80555, 

, ¶ 25.
       {¶103} As stated, Appellant was convicted of count one, a violation of R.C.
2907.02(2), which states: “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.”
       “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



Case No. 22 MA 0109
                                                                                       – 24 –


       another. Penetration, however slight, is sufficient to complete vaginal or
       anal intercourse.
R.C. 2907.01(A).
       {¶104} T.R. testified Appellant held her against her will and raped her orally,
vaginally, and anally. Her testimony is bolstered by her statements and conduct after the
offenses. She told Dembert what happened, called 911, and secured medical treatment.
Bayless believed T.R. was in shock when she saw her, and Dembert described her as if
she had “seen a ghost.” Although there were issues with her credibility, including lying
about whether Dembert was living with her and what she meant by being in “recovery” for
alcoholism, those issues were vetted by the defense and were before the jury for it to
address.
       {¶105} Credibility of witnesses is primarily for the finder of fact because the jury is
best able to view the witnesses and observe their demeanor, including voice inflections
and body language. Matter of Estate of McDaniel, 

, 

 (7th Dist.), citing Seasons Coal Co. v. City of Cleveland, 

,

 (1984).
       {¶106} Appellant likewise testified and provided an alternative version of events
that day. The jury evidently believed T.R.’s testimony and did not believe Appellant’s.
Because we do not find this is the exceptional case where the jury lost its way, we will not
disturb the decision rendered by the jury. This assignment of error lacks merit and is
overruled.
                                            Conclusion
       {¶107} Based on the foregoing, each of Appellant’s assignments of error lack
merit. The trial court’s decision is affirmed.



Waite, J., concurs.

Hanni, J., concurs.




Case No. 22 MA 0109
[Cite as State v. Herns, 

.]




        For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.


                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.