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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JASON G. BENDER,
CASE NO. 2:21-cv-00469
Petitioner, JUDGE MICHAEL H. WATSON
Magistrate Judge Elizabeth P. Deavers
v.
WARDEN, LONDON CORRECTIONAL
INSTITUTION,
Respondent.
ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the petition, Respondent’s Return of Writ,
Petitioner’s Reply, and the exhibits of the parties.
Petitioner’s Motion to Proceed on his exhausted claims (ECF No. 13) is GRANTED.
For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.
I. BACKGROUND
Petitioner challenges his convictions after a jury trial in the Union County Court of
Common Pleas on felonious assault, kidnapping, rape, and having a weapon while under
disability, with specifications. The Ohio Third District Court of Appeals summarized the facts
and procedural history of the case as follows:
{¶2} This case stems from a June 28-29, 2018 incident during which Bender
restrained the victim, K.W., with ropes around her neck, arms, and legs, and by
binding her hands and feet with ratchet straps and suspending her from the rafters
of a basement ceiling, then brutally beating and raping her. On July 13, 2018,
Bender was indicted on four counts: Count One of felonious assault in violation of
R.C. 2903.11(A)(1), (D)(1)(a), a second-degree felony, with a firearm specification
under R.C. 2941.145(A); Count Two of kidnapping in violation of R.C.
2905.01(A)(3), (C)(1), a first-degree felony, with a sexual-motivation specification
under R.C. 2941.147(A) and a sexually violent predator specification under R.C.
2941.148(A); Count Three of rape in violation of R.C. 2907.02(A)(2), (B), a first-
degree felony, with a sexually violent predator specification under R.C.
2941.148(A) and a criminal-gang-activity specification under R.C. 2941.142(A);
and Count Four of having weapons while under disability in violation of R.C.
2923.13(A)(2), (B), a third-degree felony.1 (Doc. No. 1). Bender appeared for
arraignment on July 24, 2018 and entered pleas of not guilty. (Doc. No. 13).
{¶3} On January 9, 2019, the State filed a motion requesting that the trial court
declare K.W. a court’s witness. (Doc. No. 42).
{¶4} On April 22, 2019, the State filed a motion to dismiss the sexually violent
predator specification alleged in Counts Two and Three and the criminal-gang-
activity specification alleged in Count Three of the indictment, which the trial court
dismissed that same day. (Doc. Nos. 75, 76).
{¶5} The case proceeded to a jury trial on April 22-24, 2019. On April 24, 2019,
the jury found Bender guilty of all the counts and specifications in the indictment.
(Doc. Nos. 78, 79, 80, 81). (See also Doc. No. 84). On May 29, 2019, the trial court
sentenced Bender to 7 years in prison on Count One, 10 years in prison on Count
Two, 10 years in prison on Count Three, 30 months in prison on Count Four, and 3
years in prison on the firearm specification. (Doc. No. 87). The trial court ordered
Bender to serve consecutively the prison terms imposed under Counts One, Two,
and Three, and the firearm specification. (Id.). Further, the prison term imposed as
to Count Four was ordered to be served concurrently to the consecutive prison terms
imposed as to Counts One, Two, and Three, and the firearm specification for an
aggregate sentence of 30 years in prison. (Id.). The trial court also classified Bender
as a Tier III sex offender. (Doc. No. 88).
{¶6} Bender filed a notice of appeal on June 18, 2019 and raises three assignments
of error for our review. (Doc. No. 93).
Assignment of Error No. I
Appellant was deprived of his constitutional rights to due process and to confront
his accusers in violation of the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution and Section 10, Article I of the Ohio Constitution, as a
consequence of the trial court permitted [sic] hearsay testimony from a medical
witness regarding statements in the medical record that were not admissible under
any hearsay exception, thereby preventing appellant from exercising his right to
confront in a meaningful way.
***
Assignment of Error No. II
Appellant was deprived of his constitutional rights to due process and effective
assistance of counsel in violation of his Fifth, Sixth and Fourteenth Amendments
to the United States Constitution and Section 10, Article I of the Ohio Constitution,
when the trial court called the victim as a court witness pursuant to Evid.R. 614,
and, further, when appellant’s trial counsel failed to object to the court calling the
victim pursuant to Evid.R. 614.
***
Assignment of Error No. III
The evidence adduced at trial is insufficient as a matter of law to support appellant’s
conviction on the charge of rape.
State v. Bender, 3rd Dist. No. 14-19-22, 2020 WL 995223 (Ohio Ct. App. Mar. 2, 2020). On
March 2, 2020, the state appellate court affirmed the trial court’s judgment. Id. On July 21,
2020, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Bender, 159
Ohio St.3d 1447 (Ohio 2020). On December 1, 2020, Petitioner filed a petition for post-
conviction relief in the state trial court, asserting the denial of the effective assistance of counsel
and prosecutorial misconduct. Doc. 9, PAGEID # 277. On January 20, 2021, the trial court
dismissed the post-conviction petition as untimely. (ECF No. 9, PAGEID # 324.) Petitioner
filed a timely appeal, Doc. 9, PAGEID # 331, which remains pending in the Ohio Court of
Appeals.
On February 2, 2021, Petitioner filed this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 2.) He asserts that his convictions violate the
Confrontation Clause (claim one); that the alleged victim unconstitutionally testified as a court
witness under Ohio Evidence Rule 614 (claim two); that he was denied the effective assistance
of trial counsel because his attorney failed to object (claim three); and that the evidence is
constitutionally insufficient to sustain his rape conviction (claim four). It is the Respondent’s
position that Petitioner’s claims do not provide a basis for relief.
II. STANDARD OF REVIEW
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) governs this case. The United States Supreme Court
has described AEDPA as “a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court” and emphasized that courts must not “lightly
conclude that a State’s criminal justice system has experienced the ‘extreme malfunction’ for
which federal habeas relief is the remedy.” Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting
Harrington v. Richter, 562 U.S. 86, 102 (2011)); see also Renico v. Lett, 559 U.S. 766, 773
(2010) (“AEDPA . . . imposes a highly deferential standard for evaluating state–court rulings,
and demands that state-court decisions be given the benefit of the doubt.”) (internal quotation
marks, citations, and footnote omitted).
AEDPA limits the federal courts’ authority to issue writs of habeas corpus and forbids a
federal court from granting habeas relief with respect to a “claim that was adjudicated on the
merits in State court proceedings” unless the state-court decision either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
The United States Court of Appeals for the Sixth Circuit has explained the meaning of
the standards found in § 2254(d)(1) as follows:
Under the “contrary to” clause, a federal habeas court may grant the writ “if the
state court applies a rule different from the governing law set forth in our cases, or
if it decides a case differently than we have done on a set of materially
indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152
L.Ed.2d 914 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000)). Under the “unreasonable application” clause, a
federal habeas court may grant the writ if the state court identifies the correct
governing legal principle from the Supreme Court’s decisions but unreasonably
applies the law or bases its decision on an unreasonable determination of the facts,
in light of the record before the state court. Harrington v. Richter, 562 U.S. 86, 100,
131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams, 529 U.S. at 412–13, 120 S.Ct.
1495.
Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018), cert. denied, 139 S. Ct. 798, (2019).
Moreover, under § 2254(d)(2), a state court’s factual determination is not “unreasonable”
merely because the federal habeas court would have reached a different conclusion. Wood v.
Allen, 558 U.S. 290, 301 (2010). Instead, a state court’s factual findings are “only unreasonable
where they are ‘rebutted by clear and convincing evidence’ and do not have support in the
record.” Moritz v. Woods, No. 16-1504, 2017 WL 2241814, at *5 (6th Cir. May 22, 2017)
(quoting Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017)) (internal quotation marks
omitted). Moreover, “[f]actual determinations by state courts are presumed correct absent clear
and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits
in a state court and based on a factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence presented in the state-court
proceeding[.]” Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (quoting Miller–El v.
Cockrell, 537 U.S. 322, 340 (2003)) (“Miller–El I”).
The burden of satisfying AEDPA’s standards rests with the petitioner. See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
III. CLAIM ONE
Petitioner asserts that hearsay statements of the alleged victim by testimony Andi
Stevens, a forensic nurse, violated the Confrontation Clause. The state appellate court rejected
this claim in relevant part as follows:
{¶7} In his first assignment of error, Bender argues that the trial court erred by
admitting testimony of Andi Stevens (“Stevens”), a forensic nurse coordinator and
sexual assault nurse examiner (“SANE”) with OhioHealth, as to statements made
to her by K.W. Bender argues that the admission of Stevens’s testimony (i.e.,
K.W.’s statements) violated his rights under the Confrontation Clause of the Sixth
Amendment to the United States Constitution. He further argues that Stevens’s
testimony was inadmissible hearsay evidence.
Standard of Review
{¶8} Generally, the admission or exclusion of evidence lies within the trial court’s
discretion, and a reviewing court should not reverse absent an abuse of discretion
and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶
62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion implies
that the trial court acted unreasonably, arbitrarily, or unconscionably. State v.
Adams, 62 Ohio St.2d 151, 157 (1980). “However, we review de novo evidentiary
rulings that implicate the Confrontation Clause.” State v. McKelton, 148 Ohio St.3d
261, 2016-Ohio-5735, ¶ 97. “De novo review is independent, without deference to
the lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-
Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio
St.3d 145, 147 (1992).
Analysis
{¶9} We will begin by addressing whether the admission of Stevens’s testimony
violated Bender’s Sixth Amendment rights. The Confrontation Clause to the Sixth
Amendment of the United States Constitution, made applicable to the states by the
Fourteenth Amendment, provides that “ ‘[i]n all criminal prosecutions, the accused
shall enjoy the right * * * to be confronted with the witnesses against him * * *.’ ”
Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354 (2004), quoting the
Confrontation Clause. See also State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-
1019, ¶ 34; State v. McNeal, 3d Dist. Allen No. 1-01-158, 2002-Ohio-2981, ¶ 43,
fn. 13.
The United States Supreme Court has interpreted [the Sixth Amendment right to
confrontation] to mean that admission of an out-of-court statement of a witness who
does not appear at trial is prohibited by the Confrontation Clause if the statement is
testimonial unless the witness is unavailable and the defendant has had a prior
opportunity to cross-examine the witness. Maxwell at ¶ 34, citing Crawford at 53-
54. The United States Supreme Court “did not define the word ‘testimonial’ but
stated that the core class of statements implicated by the Confrontation Clause
includes statements ‘made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later
trial.’ ” Id., quoting Crawford at 52
{¶10} “Only testimonial hearsay implicates the Confrontation Clause.” McKelton
at ¶ 185. “‘[T]estimonial statements are those made for “a primary purpose of
creating an out-of-court substitute for trial testimony.”‘” Id., quoting Maxwell at ¶
40, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143 (2011). That is,
“[t]o rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of
‘establish[ing] or prov[ing] past events potentially relevant to later criminal
prosecution.’” Bullcoming v. New Mexico, 564 U.S. 647, 659, 131 S.Ct. 2705, 2714
(2011), fn. 6, quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266
(2006). “The key issue is what constitutes a testimonial statement: ‘It is the
testimonial character of the statement that separates it from other hearsay that, while
subject to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.’” State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 33,
quoting Davis at 821. Nevertheless, “[t]here is also no dispute that the
Confrontation Clause ‘does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.’” State v. Ricks, 136 Ohio
St.3d 356, 2013-Ohio-3712, ¶ 18, quoting Crawford at 59, and citing Williams v.
Illinois, 567 U.S. 50, 57-58, 132 S.Ct. 2221 (2012).
{¶11} In this case, Bender argues that the trial court erred by admitting Stevens’s
testimony regarding statements made to her by K.W.—namely, a “narrative
history” provided to Stevens’s by K.W. at the hospital. However, even if any of
K.W.’s statements to Stevens were testimonial in nature, there was no constitutional
error since the victim testified at trial and was subject to cross-examination.
“Admission of testimonial statements against a party is a constitutional error when
that party does not have the opportunity to cross-examine the declarant.” State v.
Durdin, 10th Dist. Franklin No. 14AP-249, 2014-Ohio-5759, ¶ 30, citing State v.
Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, ¶ 36, citing Crawford at 68.
“Consequently, the Confrontation Clause does not require exclusion of prior
statements of a witness who testifies at trial.” State v. Lykins, 4th Dist. Adams No.
18CA1079, 2019-Ohio-3316, ¶ 90, citing California v. Green, 399 U.S. 149, 164,
90 S.Ct. 1930 (1970), and citing Arnold at ¶ 66, State v. Powell, 132 Ohio St.3d
233, 2012-Ohio-2577, ¶ 64, State v. Kersbergen, 12th Dist. Butler No. CA2014-
10-218, 2015-Ohio-3103, ¶ 68, State v. Gray, 12th Dist. Butler No. CA2011-09-
176, 2012-Ohio-4769, ¶ 48, and State v. Isa, 2d Dist. Champaign No. 07-CA-37,
2008-Ohio-5906, ¶ 16. Therefore, because K.W. testified at trial, and Bender was
able to fully cross-examine her regarding her out-of-court statements, Stevens’s
testimony did not violate the Confrontation Clause under the facts presented. Id. at
¶ 91; State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 47,
citing Gray at ¶ 48.
***
{¶17} Even if we were to conclude that Stevens’s testimony was inadmissible
hearsay, the error would be harmless. See id. at ¶ 21. “‘Any error in the admission
of hearsay is generally harmless where the declarant of the hearsay statement is
cross-examined on the same matters and the seemingly erroneous evidence is
cumulative in nature.’” Id., quoting In re M.E.G., 10th Dist. Franklin Nos. 06AP-
1256, 06AP-1257, 06AP-1258, 06AP-1263, 06AP-1264, and 06AP-1265, 2007-
Ohio-4308, ¶ 32. Indeed, as we previously addressed, the victim was present at trial
and subject to cross-examination, and the jury was able to assess her credibility.
See id.; State v. Ceron, 8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 61; Rose,
2012-Ohio-5607, at ¶ 48, citing State v. Cappadonia, 12th Dist. Warren No.
CA2008-11-138, 2010-Ohio-494, ¶ 20.
{¶18} Moreover, Bender’s argument that Stevens’s testimony was inadmissible
hearsay because “Nurse Stevens [sic] primary reason for performing her specialized
exam on [K.W.] was to obtain evidence of a crime” is misplaced. (Appellant’s Brief
at 12). See Wallace at ¶ 19; Rose at ¶ 42. Instead, Bender’s argument is relevant to
whether the victim’s statements were testimonial for purposes of the Confrontation
Clause. See Wallace at ¶ 19; Rose at ¶ 42. However, because we already concluded
that no Confrontation Clause violation occurred in this case, Bender’s argument is
specious.
{¶19} For these reasons, Bender’s first assignment of error is overruled.
State v. Bender, 2020 WL 995223, at *2-5.
By its words, the Sixth Amendment protects a defendant’s right “to be confronted with
the witnesses against him.” U.S. Const. amend. VI. Levingston v. Warden, Warren Corr. Inst.,
891 F.3d 251, 254 (6th Cir. 2018). Petitioner had that opportunity here. Petitioner had the
opportunity “to be confronted with” the alleged victim at trial, “where he could cross-examine
[her] and try to expose [her] accusation as a lie.” Id. (citing Crawford v. Washington, 541 U.S.
36, 62 (2004)). The Confrontation Clause does not prohibit the purported hearsay testimony of a
witness who testifies at trial and is subject to cross-examination by the defendant. “To the
contrary, [the Supreme Court has] held that a court may admit the statements without violating
the Sixth Amendment if the witness is ‘test[ed] in the crucible of cross-examination’ at trial.” Id.
(citing Crawford, at 61.)
Claim one is without merit.
IV. CLAIMS TWO and THREE
Petitioner asserts that the trial court violated Petitioner’s right to due process by calling
the alleged victim as a court witness under Ohio evidence rules and he was denied the effective
assistance of counsel because his attorney failed to object. Petitioner failed to raise the former
issue on direct appeal. He thereby appears to have waived this issue for review. See Hale v.
Shoop, No. 1:18-CV-504, 2021 WL 1215793, at *22 (N.D. Ohio Mar. 31, 2021) (citing Wong v.
Money, 142 F.3d 313, 322 (6th Cir. 1998) (“Under Ohio law, the failure to raise on appeal a
claim that appears on the face of the record constitutes a procedural default under the State’s
doctrine of res judicata.”); State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (holding that res
judicata bars a criminal defendant from raising in post-conviction proceedings those claims that
could have been raised on direct appeal). However, the Respondent did not raise this affirmative
defense of procedural default. Further, “the Sixth Circuit strongly discourages the sua sponte
invocation of procedural affirmative defenses that were not raised by the respondent.” Benoit v.
Bock, 237 F. Supp. 2d 804, 807 (E.D. Mich. 2003) (citing Scott v. Collins, 286 F.3d 923, 928-29
(6th Cir. 2002)).
In any event, Petitioner’s claim regarding the alleged violation of state law does not
provide him a basis for relief. 28 U.S.C. § 2254(a). As a general matter, errors of state law,
especially the improper admission of evidence, do not provide grounds for habeas corpus relief.
Estelle v. McGuire, 502 U.S. 62 (1991); Giles v. Schotten, 449 F.3d 698, 704 (6th Cir. 2006). To
be entitled to habeas relief, a petitioner must demonstrate that an evidentiary ruling violated
more than a state rule of evidence or procedure. In order to prevail, a petitioner must show that
the evidentiary ruling was “so egregious that it resulted in a denial of fundamental fairness.”
Giles, 449 F.3d at 704 (citing Baze v. Parker, 371 F.3d 310, 324 (6th Cir. 2004)). Stated
differently, “‘[e]rrors by a state court in the admission of evidence are not cognizable in habeas
proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the
defendant the fundamental right to a fair trial.’” Biros v. Bagley, 422 F.3d 379, 391 (6th Cir.
2006) (citing Roe v. Baker, 316 F.3d 557, 567 (6th Cir. 2002)). A state court evidentiary ruling
does not violate due process unless it “offend[s] some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental.’” Giles, 449 F.3d at 704
(citing Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001)). The record fails to reflect such
circumstances here.
The state appellate court rejected Petitioner’s claim of ineffective assistance of trial
counsel as follows:
{¶21} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient
or unreasonable, the defendant must overcome the presumption that counsel
provided competent representation and must show that counsel’s actions were not
trial strategies prompted by reasonable professional judgment. Strickland at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675
(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-142
(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on
other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).
{¶22} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting
Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142
and citing Strickland at 694.
Analysis
On appeal, Bender alleges that his trial counsel was ineffective for failing to object
to the trial court designating K.W. as a court’s witness. Under Evid.R. 614(A),
“[t]he court may, on its own motion or at the suggestion of a party, call witnesses,
and all parties are entitled to cross-examine witnesses thus called.” The purpose of
calling a witness as a court’s witness is to allow for a proper determination in a case
where a witness is reluctant or unwilling to testify, or there is some indication that
the witness’s trial testimony will contradict a prior statement made to police. State
v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, ¶ 23, citing State v.
Curry, 8th Dist. Cuyahoga No. 89075, 2007-Ohio-5721, ¶ 18; State v. Arnold, 189
Ohio App.3d 507, 2010-Ohio-5379, ¶ 18 (2d Dist.). “The prime candidate is a
victim and an eyewitness who will not otherwise cooperate with the party originally
planning to call him.” Renner at ¶ 23, citing Curry at ¶ 18.
{¶24} In this case, prior to the start of trial, the State filed a motion requesting that
the trial court call K.W. as its witness under Evid.R. 614(A). In support of its
motion, the State represented to the trial court that since the time that K.W. was
interviewed by law enforcement regarding the June 28-29, 2018 incident, K.W.
“remain[ed] somewhat reluctant to testify due to the nature of th[e] matter and [was]
somewhat difficult to reach.” (Doc. No. 42). The State further represented, “It is
believed that the victim was not supportive of law enforcement becoming involved
in this matter and may be uncooperative regarding her testimony and what she may
or may not recall.” (Id.). At trial, prior to calling K.W. to the stand, the State
(outside the presence of the jury) again requested (and Bender’s trial counsel did
not object) that the trial court call K.W. as its witness. The State argued that it “had
difficulty locating” K.W.; “difficulty communicating with” K.W.; and “issued a
subpoena on the day of the trial that it was scheduled for last time in order to make
sure that she” appeared at trial. (Apr. 23, 2019 Tr., Vol. I, at 69). Based on this
evidence, it was not error for the trial court to designate K.W. as its witness. See
Renner at ¶ 26; State v. Kiser, 6th Dist. Sandusky No. S-03-028, 2005-Ohio-2491,
¶ 13, 16; State v. Marshall, 9th Dist. Lorain No. 01CA007773, 2001 WL 1647706,
*2 (Dec. 26, 2001). Because it was not error for the trial court to designate K.W. as
its witness, Bender’s trial counsel was not ineffective for failing to object.
{¶25} Bender’s second assignment of error is overruled.
State v. Bender, 2020 WL 995223, at *5-6.
“In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . . . to
Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective
assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). The United States Supreme Court set forth the legal principles governing
claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984).
Strickland requires a petitioner claiming the ineffective assistance of counsel to demonstrate that
his counsel’s performance was deficient and that he suffered prejudice as a result. Id. at 687;
Hale v. Davis, 512 F. App’x 516, 520 (6th Cir.), cert. denied sub. nom. Hale v. Hoffner, 571 U.S.
1074 (2013). A petitioner “show[s] deficient performance by counsel by demonstrating ‘that
counsel’s representation fell below an objective standard of reasonableness.’” Poole v.
MacLaren, 547 F. App’x 749, 754 (6th Cir. 2013) (internal quotation marks omitted) (quoting
Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011)). To make such a showing, a petitioner must
overcome the “strong [ ] presum[ption]” that his counsel “rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466
U.S. at 687. “To avoid the warping effects of hindsight, [courts must] ‘indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466
U.S. at 689).
The United States Supreme Court has cautioned federal habeas courts to “guard against
the danger of equating unreasonableness under Strickland with unreasonableness under §
2254(d).” Harrington v. Richter, 562 U.S. 86, 105 (2011). While “‘[s]urmounting Strickland’s
high bar is never . . . easy’ . . . [e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is even more difficult.” Id. (quoting Padilla v. Kentucky, 559 U.S.
356, 371 (2010)). The standards created under Strickland and § 2254(d) are both “‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (citations omitted).
Thus, when a federal habeas court reviews a state court’s determination regarding an ineffective
assistance of counsel claim, “[t]he question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
Petitioner cannot meet this standard here. The state appellate court found that the trial
court properly called the alleged victim as the Court’s witness under Ohio evidentiary rules.
This Court is bound by that determination. See McNeill v. Bagley, No. 1:02 CV 1645, 2019 WL
4017047, at *17 (N.D. Ohio Aug. 26, 2019) (citing Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(“[A] state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.”) (citing Estelle, 502 U.S.
at 67-68). Counsel therefore did not perform in a constitutionally ineffective manner under
Strickland by failing to object.
Claims two and three are without merit.
V. CLAIM FOUR
Petitioner asserts that the evidence is constitutionally insufficient to support his rape
conviction due to a lack of evidence that he used force or compelled the alleged victim to have
sex with him. The appellate court rejected this claim:
Bender argues that his rape conviction is based on insufficient evidence. In
particular, Bender contends that his rape conviction is based on insufficient
evidence because the State presented insufficient evidence that he compelled K.W.
to engage in sexual conduct by force or threat of force.
Standard of Review
{¶27} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,
“[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.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
Analysis
{¶28} R.C. 2907.02 sets forth the offense of rape and provides, in relevant part:
“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). Bender does not dispute that he engaged in sexual conduct with
K.W.; rather, he argues that the State presented insufficient evidence that he
purposely compelled K.W. to engage in that sexual conduct by force or threat of
force. As a result, we need only address those elements of forcible rape: (1) whether
Bender purposely compelled K.W. to engage in sexual conduct, and (2) whether
Bender did so by force or threat of force. See State v. Stevens, 3d Dist. Allen No.
1-14-58, 2016-Ohio-446, ¶ 14.
{¶29} In addressing the force-or-threat-of-force language under the rape statute,
the Supreme Court of Ohio clarified that “[a] defendant purposely compels another
to submit to sexual conduct by force or threat of force if the defendant uses physical
force against that person, or creates the belief that physical force will be used if the
victim does not submit.” State v. Schaim, 65 Ohio St.3d 51 (1992), paragraph one
of the syllabus.
A person acts purposely when it is the person’s specific intention to cause a certain
result, or, when the gist of the offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish thereby, it is the
offender’s specific intention to engage in conduct of that nature. R.C. 2901.22(A).
“Force” is defined as “any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing.” R.C. 2901.01(A)(1). A victim
“need not prove physical resistance to the offender” in order to demonstrate force.
R.C. 2907.05(D).
{¶30} In rape cases in which the victim is not a child, the State “must prove force
or threat of force either through direct evidence of such or by inference where the
defendant overcame the victim’s will by fear and duress.” State v. Rupp, 7th Dist.
Mahoning No. 05 MA 166, 2007-Ohio-1561, ¶ 33. See also Stevens at ¶ 20 (“ ‘[T]he
key inquiry for determining whether the State presented sufficient evidence on the
element of force is whether the “victim’s will was overcome by fear or duress.” ‘
”), quoting State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 40,
quoting In re Forbess, 3d Dist. Auglaize No. 2-09-20, 2010-Ohio-2826, ¶ 40, citing
State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908, ¶ 88, citing State v.
Eskridge, 38 Ohio St.3d 56, 58-59 (1988). “[I]f the defendant created the belief that
physical force will be used in the absence of submission, then threat of force can
be inferred”—that is, a “threat of force includes both explicit and implicit threats”
because “[n]othing in the rape statute requires the threat of force to be direct or
express.” Rupp at ¶ 33. See also Schaim at paragraph one of the syllabus (“The
“force or threat of force” element “can be inferred from the circumstances
surrounding sexual conduct.”); State v. Worrell, 10th Dist. Franklin No. 04AP-410,
2005-Ohio-1521, ¶ 43 (“Thus, ‘[a] defendant purposely compels another to submit
to sexual conduct by force or threat of force’ by creating ‘the belief that physical
force will be used if the victim does not submit’ to the defendant’s actions.”), rev’d
in part on other grounds, sub nom. In re Ohio Criminal Sentencing Statutes Cases,
109 Ohio St.3d 313, 2006-Ohio-2109, quoting Schaim at paragraph one of the
syllabus. “In order for a defendant to overcome his victim’s will by fear or duress,
the defendant would have had to engage in sufficient behavior toward the victim.
This behavior is objective and its effect is viewed in light of the totality of facts and
circumstances existing at the time of the alleged rape.” Rupp at ¶ 41. See also
Stevens at ¶ 21 (“ ‘[T]he amount of force [necessary to prove forcible rape under
R.C. 2907.02(A)(2)] must be examined in light of the circumstances.’ ”), quoting
State v. Runyons, 3d Dist. Union No. 14-91-30, 1992 WL 136196, *2 (June 9,
1992).
{¶31} On appeal, Bender contends that the State presented insufficient evidence
that he purposely compelled K.W. to submit to the sexual conduct by force or threat
of force because K.W.’s testimony that she “thought that her having sex with
[Bender] might calm him down and stop him from hitting her” “shows that she did
this knowingly and consensually.” (Appellant’s Brief at 24). Specifically, Bender
contends that there is insufficient evidence of the force-or-threat-of-force element
based on K.W.’s testimony because her testimony reveals that “[s]he may not have
wanted to have sex with [Bender], and her reasons for doing so may have been far
from romantic, but the sex was not forced upon her.” (Id.).
In fact, the statement Nurse Stevens said [K.W.] made to her, that having sex with
[Bender] ‘usually’ makes things better and makes [Bender] leave her alone, shows
that this sort of sexual behavior between [Bender] and [K.W.] is not unique to the
events of June 28-29, but appears to be a normal part of their non-traditional
relationship. (Id.).
{¶32} Bender’s argument is misplaced. See Worrell at ¶ 45 (concluding that the
victim’s “failure to physically resist does not negate the forcible element of the
rapes”), citing State v. Hurst, 10th Dist. Franklin No. 98AP-1549, 2000 WL
249110, *4 (Mar. 7, 2000); Rupp at ¶ 42 (noting that “a victim need not risk physical
damage or even death to later prove that she was raped”). K.W.’s testimony does
not negate the forcible element of rape under R.C. 2907.02(A)(2); rather, K.W.’s
testimony is sufficient evidence that Bender overcame her will by fear and duress.
See State v. Thomas, 6th Dist. Lucas No. L-17-1266, 2019-Ohio-1916, ¶ 28 (“This
testimony was relevant, because it provided context for the rape and tended to
explain R.I.’s lack of resistance by demonstrating Thomas’s use of physical abuse,
past and present, to force her compliance.”). Indeed, that Bender concedes that
K.W. “may not have wanted to have sex with” him is illustrative of the implicit
threat to compel K.W. to engage in sexual conduct.
{¶33} At trial, K.W. testified that (at the time of the incident) she was in a romantic
relationship with Bender and the two were living together. (Apr. 23, 2019 Tr., Vol.
I, at 74-75). K.W. testified that (during the evening of June 28, 2018), she and
Bender began arguing after Bender discovered that she was moving her things out
of the residence that she shared with him. (Id. at 82). The State presented evidence
that the argument progressed into a physical altercation during which Bender “tied
[her] up down in the basement” by placing “ropes” “around [her] neck and arms
and legs,” then by binding her hands and her feet with “ratchet straps” and
suspending her from the rafters. (Id. at 84-85); (Apr. 22, 2019 Tr., Vol. I, at 128);
(State’s Ex. 4). Then, Bender “continued hitting” her with “[h]is fist”; “a piece of
wood”; “a pole”; a slingshot; a pan; and a gun. (Apr. 22, 2019 Tr., Vol. I, at 85-86);
(Apr. 23, 2019 Tr., Vol. I, at 130); (State’s Ex. 4). “Bender had [her] sit there on all
fours kicking [her] and then he used a back whip. It’s a leather strap with heavy
objects on it. Leather strap with rebar and a ball bearing on it.” (Apr. 23, 2019 Tr.,
Vol. I, at 130-131); (State’s Ex. 4). K.W. “had to sit there on [her] hands and knees
when he put the knife * * * in her vagina.” (Id. at 131); (Id.). Stevens also testified
that K.W. reported to her that Bender bit her arm. (Apr. 23, 2019 Tr., Vol. I, at
127); (State’s Ex. 4).
{¶34} According to Stevens, K.W. reported that Bender would not permit her to
eat or sleep because “that is part of the game, too.” (Apr. 23, 2019 Tr., Vol. I, at
132); (State’s Ex. 4). The State also presented evidence that (at some point during
the assault), K.W. was naked and that Bender would not return K.W.’s clothes to
her. (Apr. 23, 2019 Tr., Vol. I, at 130); (State’s Ex. 4). Moreover, K.W. testified
that Bender forced her to cut off her hair, then he used “clipper things” to make it
shorter. (Apr. 22, 2019 Tr., Vol. I, at 89-90). (See also Apr. 23, 2019 Tr., Vol. I, at
131); (State’s Ex. 4). K.W. further testified that she was screaming during the
assault but Bender put “rags and bandanas” in her mouth to muffle her screams.
(Apr. 22, 2019 Tr., Vol. I, at 131). (See also Apr. 23, 2019 Tr., Vol. I, at 129);
(State’s Ex. 4). According to K.W., Bender hit and kicked her over her entire body
and that the altercation lasted “until the next morning.” (Apr. 22, 2019 Tr., Vol. I,
at 86, 89). Importantly, K.W. testified that she was “scared” of Bender during the
June 28-29, 2018 incident. (Id. at 127).
{¶35} Mindful of her fear, K.W. testified that she engaged in sexual conduct (“more
than once”) with Bender during the assault “because [she] thought it would calm
him down.” (Id. at 88). K.W. reported to Stevens that “[u]sually [engaging in sexual
conduct with Bender] makes things better and he leaves [her] alone for a little bit
when [she] do[es] it,” but that “[i]t turned worse” in this instance. (Apr. 23, 2019
Tr., Vol. I, at 131); (State’s Ex. 4). K.W. testified that she eventually escaped by
running and hiding from Bender, then having a neighbor take her to Burger King
for help. (Apr. 22, 2019 Tr., Vol. I, at 93-94). According to K.W., she requested
that her friend take her to a hospital in another county because she was afraid that
Bender would find her at the local hospital. (Id. at 95).
{¶36} Based on the totality of the circumstances of this case, a rational trier of fact
could infer that K.W.’s state of fear or duress during a prolonged period of torture
was such that she was compelled to submit to the sexual conduct to end the torture.
See Thomas, 2019-Ohio-1916, at ¶ 27 (concluding that the victim’s testimony
“regarding past incidents of physical abuse” and that she engaged in sexual conduct
with Thomas because “she wanted the abuse to end and for Thomas to leave” was
relevant to whether Thomas purposely compelled the victim to engage in sexual
conduct by force or threat of force). See also State v. Rucker, 1st Dist. Hamilton
No. C-110082, 2012-Ohio-185, ¶ 17 (concluding that evidence that Rucker struck
the victim with belts—even if the beatings occurred at times other than the sexual
assaults—was relevant to whether the victim’s will had been overcome by fear or
duress); Hurst, 2000 WL 249110, at *4 (Mar. 7, 2000) (noting that the absence of
physical resistance “highlights the frightful experiences and threat of force present
during the sexual encounter”). Accordingly, a rational trier of fact could conclude
beyond a reasonable doubt that Bender engaged in conduct which would overcome
K.W.’s will by fear or duress and, therefore, that Bender purposely compelled K.W.
to engage in sexual conduct by force or threat of force. Consequently, Bender’s
rape conviction is based on sufficient evidence, and his third assignment of error is
overruled.
State v. Bender, 2020 WL 995223, at *6-9.
The Fourteenth Amendment’s Due Process clause “protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). In reviewing a claim
of insufficiency of the evidence, the Court must consider “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis in original). The Jackson standard must be applied “with explicit
reference to the substantive elements of the criminal offense as defined by state law.” Brown v.
Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16). A federal
habeas court must view the evidence in the light most favorable to the prosecution. Wright v.
West, 505 U.S. 277, 296 (1992) (citing Jackson, 443 U.S. at 319). The prosecution is not
affirmatively required to “rule out every hypothesis except that of guilt.” Id. (quoting Jackson,
443 U.S. at 326). Instead, “a reviewing court ‘faced with a record of historical facts that
supports conflicting inferences must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must
defer to that resolution.’” Id. at 296–97 (quoting Jackson, 443 U.S. at 326). Further, federal
habeas courts apply a “double layer” of deference to state court determinations of the sufficiency
of the evidence. Deference must be given, first, to the jury’s finding of guilt because the
standard, announced in Jackson, is whether “viewing the trial testimony and exhibits in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.
2009). Second, even if a de novo review of the evidence leads to the conclusion that no rational
trier of fact could have so found, a federal habeas court “must still defer to the state appellate
court’s sufficiency determination as long as it is not unreasonable.” Id.; see also White v. Steele,
602 F.3d 707, 710 (6th Cir. 2009). This is a substantial hurdle to meet.
For the reasons discussed by the state appellate court, plainly, Petitioner cannot do so
here. The evidence plainly was sufficient to support the rape conviction. Claim four is clearly
without merit.
VI. DISPOSITION
For the foregoing reasons, it is RECOMMENDED that this action be DISMISSED.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or
in part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
IT IS SO ORDERED.
_s/ Elizabeth A. Preston Deavers_________
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE Case Information
- Court
- S.D. Ohio
- Decision Date
- June 22, 2021
- Status
- Precedential