author: DONOVAN, J.

text:
    Richard ROGERS, Plaintiff-Appellant v. Timothy J. OLT, Defendant-Appellee
    NO. 2017-CA-21
    Court of Appeals of Ohio, Second District, Miami County.
    Rendered June 1, 2018
    RICHARD BOUCHER, Atty. Reg. No. 0033614, 12 West Monument Avenue, Suite 200, Dayton, Ohio 45402, Attorney for Plaintiff-Appellant
    DUSTIN DAVIS, Atty. Reg. No. 0085837, 306 West High Street, P.O. Box 1215, Piqua, Ohio 45356, Attorney for Defendant-Appellee
   DONOVAN, J.

{¶ 1} Plaintiff-appellant Richard Rogers appeals a decision of the Miami Court of Common Pleas granting defendant-appellee Timothy J. Olt's motion for summary judgment with respect to Rogers's complaint alleging the following causes of action: 1) abuse of process; 2) malicious prosecution; 3) intentional infliction of emotional distress; 4) frivolous conduct; and 5) to declare Olt a vexatious litigator. Rogers filed a timely notice of appeal with this Court on September 14, 2017.

{¶ 2} Rogers initially became acquainted with Olt through an arts organization called Muse Machine, where Olt was employed as the orchestra director. Specifically, in October of 2011, Rogers brought his daughter, C.R., to Muse Machine to audition for a spot in the program. It was at this point that Olt became C.R.'s orchestra director and mentor. C.R. was fifteen years old at the time. For the next three years, Olt had regular contact with C.R. through the Muse Machine program. C.R. turned eighteen in May of 2014.

{¶ 3} On August 14, 2014, C.R. left Rogers's home where she was living with her mother and father and was picked up by Olt. Olt took C.R. to his residence where she immediately moved in and lived for several months. Also living in Olt's residence at the time were his second wife and twin daughters. During his deposition, Olt admitted to engaging in a sexual relationship with C.R. after she moved into his residence in August of 2014. After C.R. left his residence in May of 2014, Rogers began searching for her. Based upon text messages he retrieved from C.R.'s cell phone, Rogers suspected that she was with Olt.

{¶ 4} Thereafter on September 23, 2014, Olt filed a Petition for Civil Stalking Protection Order in which he requested that a protection order be granted on behalf of himself, his then wife, his two daughters, and C.R., whom he classified as a "household resident." In the petition, Olt alleged that C.R. left Rogers's home "due to ongoing physical and mental abuse." Because of the alleged abuse occurring at Rogers's home, Olt stated that he and his wife had decided to allow C.R. to come and live them. Olt further alleged that immediately after C.R. moved in on August 14, 2014, Rogers and his wife, Kathy, drove by Olt's residence at least once daily for an entire week. Olt also stated that Rogers drove by his residence again on August 30, 2014, while he was on a walk with his family. Finally, Olt alleged that Rogers continued to drive by his residence up until the date of the filing of the Petition.

{¶ 5} Rogers testified at his deposition that at some time before the filing of the first Petition, he was sitting in his motor vehicle down the street from Olt's residence when he observed C.R. pull up in the driveway with Olt. Rogers testified that at this point, he drove in front of the driveway and addressed Olt, saying, "You fat piece of s***. Keep your hands off my daughter." Rogers also testified that that he and his wife were driving by Olt's house "quite a bit to verify whether my daughter was there." Rogers testified that he drove by Olt's house over a period of a couple of weeks, two or three times a week. Rogers also acknowledged driving by Olt and his family while they were walking their dog.

{¶ 6} Based upon the allegations made by Olt in the Petition, the magistrate granted an ex parte civil stalking protection order to Olt against Rogers. The magistrate scheduled a full hearing on the protection order to be held on September 30, 2014. On the date that the full hearing was to be held, the parties resolved the case with a "Stipulation of Dismissal," which stated as follows:

Now come[ ] the parties to the within action and hereby stipulate to dismiss Petitioner Timothy Olt's petition filed in the within matter, without prejudice pursuant to [C]ivil Rule 41(A)(1)(b). The parties have stipulated that neither Petitioner nor Respondent shall annoy, harass, or contact the other party by any electronic means including but not limited to text messages, emails, phone, fax, etc. The parties shall further not make disparaging remarks about the other in public. This shall include negative comments or discussions on social media. It is further stipulated that neither party shall drive past the other parties' [sic] home unless it is absolutely necessary.

The record establishes that both parties' counsel signed the stipulation and filed it with the trial court on October 30, 2014. The stipulation resolved any and all pending legal matters between the parties at that time.

{¶ 7} Just over one year later on September 24, 2015, Olt filed a second Petition for Civil Stalking Protection Order against Rogers. In the second petition, Olt alleged that Rogers had contacted Ron Hartwell, a contractor for musicians who employed Olt, in order to discuss Olt's relationship with C.R. Thereafter, Olt reviewed recorded security footage from his residence which depicted nine instances of Rogers's driving by Olt's residence between the dates of September 17, 2015, and September 20, 2015. Again, Olt requested that a protection order be granted on behalf of himself, his then wife, his two daughters, and C.R., whom he classified as a "household resident." In his deposition, Rogers admitted that he had driven by Olt's residence during the relevant time period but could not recall how many times he had done so. Rogers further testified that he "was looking for his daughter."

{¶ 8} The magistrate granted Olt's second Petition for a Civil Stalking Protection Order on September 24, 2015. The magistrate scheduled the matter for a full hearing to be held on October 1, 2015. On January 5, 2016, Olt filed a notice of dismissal of the second Petition for a Civil Stalking Protection Order.

{¶ 9} On July 29, 2016, Rogers filed a "Complaint for Abuse of Process, Malicious Prosecution, Intentional Infliction of Emotional Distress, Frivolous Conduct, and to Declare Defendant a Vexatious Litigator" against Olt. Olt and Rogers were both deposed on January 16, 2017. Thereafter, on May 19, 2017, Olt filed a motion for summary judgment. Rogers filed a response to Olt's motion for summary judgment on July 6, 2017. On August 24, 2017, the trial court issued a decision granting Olt's motion for summary judgment.

{¶ 10} It is from this judgment that Rogers now appeals.

{¶ 11} Rogers's first assignment of error is as follows:

THE TRIAL COURT ERRED IN FAILING TO STRIKE OR DISREGARD ALL UNSUPPORTED ALLEGATIONS FROM DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT.

{¶ 12} In his first assignment, Rogers contends that the trial court erred when it allegedly relied on inadmissible hearsay evidence when it granted Olt's motion for summary judgment. Specifically, Rogers argues that the trial court's reliance on the two Petitions for Civil Stalking Protection Orders was error because the information contained therein constituted inadmissible hearsay, and Olt did not submit an affidavit attesting to the facts alleged in the Petitions.

{¶ 13} In its decision granting Olt's motion for summary judgment, the trial court stated the following with respect to the evidence it relied upon in reaching its judgment:

The Court has reviewed the submitted evidence in this matter, which includes the deposition of Plaintiff Richard Rogers that Defendant relies upon to support his Motion for Summary Judgment. It is not necessary for the Defendant to submit just an Affidavit when there is other credible evidence of sworn testimony in a deposition of the Plaintiff himself. Furthermore, Defendant relies upon Court documents and record journal entries which are Public Records, admissible as a hearsay exception . Therefore, Plaintiff's motion to not consider and/or strike the Defendant's assertions of fact is not well-taken and it is hereby overruled.

(Emphasis added.)

{¶ 14} As this Court has previously noted, the "trial court has broad discretion with respect to the admission or exclusion of evidence, and its decision on such matters will not be disturbed by a reviewing court absent an abuse of discretion that results in material prejudice. State v. Noling (2002), 98 Ohio St.3d 44, 781 N.E.2d 88, 2002-Ohio-7044." Stemple v. Dunina , 2d Dist. Miami No. 04CA40, 2005-Ohio-5590, 2005 WL 2697328, ¶ 36.

Evid.R. 801(C) defines hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A "statement," as included in the definition of hearsay, is an oral or written assertion or nonverbal conduct of a person if that conduct is intended by him as an assertion. Evid.R. 801(A). "An 'assertion' for hearsay purposes 'simply means to say that something is so,' e.g., that an event happened or that a condition existed." (Emphasis and citations omitted.) State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 97. Assertions can generally be proven true or false. Id. In general, hearsay is not admissible. Evid.R. 802.

{¶ 15} In the instant case, the trial court stated that in granting summary judgment to Olt, it specifically relied on the deposition testimony of Rogers in reaching its decision. The trial court also stated that it reviewed "court documents and record journal entries" before issuing its decision. Ostensibly, the "court documents" referenced by the trial court include the two Petitions for Civil Stalking Protection Orders which were marked as exhibits during the depositions. In his deposition, Rogers admitted to all of the facts which supported the issuance of both ex parte protection orders. Rogers's own sworn deposition testimony constituted admissible evidence upon which Olt relied in support of his motion for summary judgment. There is nothing in the record to suggest that the trial court relied on hearsay statements when it granted summary judgment to Olt. All of the evidence relied upon by the trial court in reaching its decision granting summary judgment to Olt was admissible. Therefore, Olt was not required to file an affidavit attesting to all of the facts alleged in his motion for summary judgment.

{¶ 16} Rogers's first assignment of error is overruled.

{¶ 17} Rogers's second assignment of error is as follows:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE.

{¶ 18} We review a trial court's decision on a motion for summary judgment based on a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). "De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial." Brewer v. Cleveland Bd. of Edn. , 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co. , 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980). "Accordingly, we afford no deference to the trial court's decision and independently review the record and the inferences that can be drawn from it to determine whether summary judgment is appropriate." Bank of New York Mellon v. Bobo , 2015-Ohio-4601, 50 N.E.3d 229, ¶ 9 (4th Dist.).

{¶ 19} Summary judgment is appropriate when the moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion when viewing the evidence most strongly in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc. , 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29 ; Sinnott v. Aqua-Chem, Inc. , 116 Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶ 29. The moving party bears the initial burden to demonstrate the absence of a genuine issue of material fact for each of the elements of its claim. Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). The Supreme Court of Ohio set out the burdens of proof when considering motions for summary judgment in Dresher v. Burt , 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). The court stated:

[W]e hold that a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

Id. at 293, 662 N.E.2d 264.

{¶ 20} As previously discussed, the claims brought by Rogers in the present case include 1) abuse of process; 2) malicious prosecution; 3) intentional infliction of emotional distress; 4) frivolous conduct; and 5) to declare Olt a vexatious litigator. In granting summary judgment, the trial court focused on Rogers's deposition testimony in which he admitted to the conduct that served as the basis for the granting of the two Petitions for Protection Orders. For the following reasons, we find that the trial court did not err when it granted Olt's motion for summary judgment.

Abuse of Process

{¶ 21} The elements of a claim for abuse of process are: "(1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process." See Malone v. Lowry , 2d Dist. Greene No. 06-CA-101, 2007-Ohio-5665, 2007 WL 3076599, ¶ 16, citing Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. , 68 Ohio St.3d 294, 298, 626 N.E.2d 115, 118 (1994).

{¶ 22} In his complaint, Rogers argues that both petitions were filed willfully and maliciously for the improper purpose of keeping C.R. isolated from him. Rogers also alleged that Olt filed the petitions so that he could continue to take advantage of C.R. and engage in sexual relations with her. However, the record establishes that Olt was able to successfully obtain two ex parte protection orders against Rogers which Rogers did not challenge. See Malone at ¶ 16. Rather, Rogers agreed to a "Stipulation of Dismissal" which disposed of the first petition, and Olt voluntarily dismissed the second petition. Other than his bare assertions to the contrary, Rogers has presented no evidence which establishes that the petitions were filed in an attempt to accomplish an ulterior motive for which they were not designed. Therefore, there is no genuine issue of material fact and Olt is entitled to judgment as a matter of law on the abuse of process claim. See id.

Malicious Prosecution

{¶ 23} In order to establish a claim for malicious prosecution, the plaintiff must prove that there was: "(1) malicious institution of prior proceedings against plaintiff by defendant * * *, (2) lack of probable cause for the filing of the prior lawsuit * * *, (3) termination of the prior proceedings in plaintiff's favor, * * * and (4) seizure of plaintiff's person or property during the course of prior proceedings * * *." Robb v. Chagrin Lagoons Yacht Club, Inc. , 75 Ohio St.3d 264, 269, 662 N.E.2d 9 (1996), citing Crawford v. Euclid Natl. Bank , 19 Ohio St.3d 135, 139, 483 N.E.2d 1168 (1985).

{¶ 24} Before the plaintiff can be successful, it must be shown that the prior proceeding was terminated in his favor. A proceeding is terminated in favor of the accused "only when its final disposition indicates that the accused is innocent." Ash v. Ash , 72 Ohio St.3d 520, 522, 651 N.E.2d 945 (1995). When a prosecution is terminated by way of a voluntary settlement or agreement of compromise with the accused, it is not indicative of guilt or innocence and thus, is not a termination in favor of the accused. Id. at 523, 651 N.E.2d 945. Here, the parties entered into a voluntary settlement agreement in the stalking case which was filed as a "Stipulation of Dismissal" which disposed of the first petition.

{¶ 25} As previously stated, Olt voluntarily dismissed the second petition filed against Rogers. Voluntary dismissal of a complaint is not a termination of the proceedings in a party's favor for purposes of a malicious prosecution claim. Jones v. Nichols , 12th Dist. Warren No. CA2012-02-009, 2012-Ohio-4344, 2012 WL 4351313, ¶ 12, citing Miller v. Unger , 192 Ohio App.3d 707, 950 N.E.2d 241, 2011-Ohio-990, ¶ 16 (12th Dist.). In this case, after receiving the second ex parte protection order, Olt voluntary dismissed the petition against Rogers. Olt never received a permanent CSPO because he dismissed the case before it went forward. For this reason, we find that Rogers has failed to show the prior proceedings were terminated in his favor, and he therefore cannot prevail on the claim of malicious prosecution. Rogers has failed to point to specific portions of the record exhibiting a genuine issue of material fact, and as a result Olt is entitled to judgment as a matter of law on the malicious prosecution claim. See Malone at ¶ 17.

Intentional Infliction of Emotional Distress

{¶ 26} In order to be successful on a claim for intentional infliction of emotional distress, a plaintiff must prove, "(1) the defendant intended to cause emotional distress to the plaintiff, (2) the defendant's conduct was so extreme and outrageous as to go beyond the bounds of decency and when such conduct can be considered utterly intolerable in a civilized society, (3) defendant was the proximate cause of plaintiff's psychiatric injury, and (4) the mental anguish suffered by the plaintiff is so serious and of a nature that no reasonable person can be expected to endure." Cox v. Kettering Med. Ctr. , 2d Dist. Montgomery No. 20614, 2005-Ohio-5003, 2005 WL 2327124, ¶ 30-31. Liability for intentional infliction of emotional distress "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Yeager v. Local Union 20 , 6 Ohio St.3d 369, 375, 453 N.E.2d 666 (1983).

{¶ 27} In his complaint, Rogers contends that the filing of the petitions was intentional, malicious and willful and that Olt knew or should have known it would result in serious emotional distress to Rogers. However, other than merely alleging that Olt's conduct in filing the petitions constituted extreme and outrageous conduct, Rogers fails to adduce any evidence which would create a genuine issue of material fact with respect to his claim for intentional infliction of emotional distress. Again, we note that Olt was able to successfully obtain two ex parte protection orders against Rogers which he did not challenge. Furthermore, Rogers admitted to all of the facts which supported the issuance of both ex parte protection orders. It was Rogers's own conduct that precipitated the filing of the petitions, and Olt acted within the law by filing said petitions.

{¶ 28} Upon review, we conclude that Rogers failed to make sufficient factual allegations in order to constitute a claim for intentional infliction of emotional distress. Rogers has failed to allege facts that Olt possessed the requisite intent to cause him severe emotional distress, or that Olt's actions were so outrageous as to go beyond all possible bounds of decency. Accordingly, Rogers has failed to plead sufficient facts to support a claim for intentional infliction of emotional distress.

Frivolous Conduct / Vexatious Litigator

{¶ 29} R.C. 2323.51(A)(2) defines "frivolous conduct," in pertinent part, as follows:

(a) Conduct of an inmate or other party to a civil action, * * * that satisfies any of the following:
(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.

{¶ 30} "Whether particular conduct is frivolous may be either a factual or a legal determination. * * * A trial court's factual finding that a party's conduct was [or was not] frivolous will not be disturbed where the record contains competent, credible evidence to support the court's determination. * * * In contrast, whether a pleading is warranted under existing law or can be supported by a good-faith argument for an extension, modification, or reversal of existing law is a question of law, which is reviewed de novo." Swartz v. Hendrix , 2d Dist. Darke No. 2010-CA-18, 2011-Ohio-3422, 2011 WL 2672240, ¶ 22, citing Foland v. Englewood , 2d Dist. Montgomery No. 22940, 2010-Ohio-1905, 2010 WL 1732031, ¶ 32.

{¶ 31} Akin to a claim for frivolous conduct, the vexatious-litigator statute allows a person who has defended against habitual and persistent vexatious conduct to ask a trial court to declare the person who allegedly engaged in that conduct a vexatious litigator. R.C. 2323.52(B). A "vexatious litigator" is "any person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court, whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions.

* * *" R.C. 2323.52(A)(3). "Vexatious conduct" includes a party's civil-action conduct that "(a) * * * obviously serves merely to harass or maliciously injure another party to the civil action" or that "(b) * * * is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law." R.C. 2323.52(A)(2). "Conduct" includes filing a civil action or asserting a claim, defense, or other position. R.C. 2323.51(A)(1)(a).

{¶ 32} Other than his conclusory assertions in his complaint which merely restate the language in R.C. 2323.51(A)(2) and R.C. 2323.52, Rogers fails to establish any attempt or act on Olt's part designed to harass or threaten Rogers with no reasonable basis in law. Olt was able to successfully obtain two ex parte protection orders against Rogers which he admitted to and did not challenge. It was Rogers's own conduct that precipitated the filing of the petitions, and Olt acted within the law by filing said petitions. As noted by the trial court, the conduct which formed the basis for the second petition consisted of acts that Rogers had previously agreed to not engage in pursuant to the joint "Stipulation of Dismissal." Therefore, the trial court did not err when it granted summary judgment to Olt on Rogers's claims for frivolous conduct and vexatious litigator status.

{¶ 33} Rogers's second assignment of error is overruled.

{¶ 34} Both of Rogers's assignments of error having been overruled, the judgment of the trial court is affirmed.

WELBAUM, P.J. and HALL, J., concur.

      Olt further testified that he had subsequently divorced his second wife and was currently married to C.R. at the time of the instant proceedings.


source: Caselaw Access Project

author: Cunningham, Judge.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Roscoe JEFFRIES, Defendant-Appellant.
    NO. C-170182
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: June 6, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Timothy J. McKenna, Cincinnati, for Defendant-Appellant.
    OPINION.
   Cunningham, Judge.

{¶ 1} Defendant-appellant Roscoe Jeffries appeals from the judgment of the Hamilton County Court of Common Pleas convicting him of aggravated trafficking in drugs and multiple sex offenses, including rape, involving his minor daughter R.J.

Background Facts and Procedure

{¶ 2} The Colerain Township Police Department began investigating Jeffries on April 12, 2016, based on allegations, made by his daughter M.J. to her high school counselor, that Jeffries was not sending his son J.J. to high school. At the time, Jeffries lived on Elkhorn Drive with J.J., R.J., M.J., and his girlfriend Elizabeth Mehl ("Liz"). When Detective Sean Maher went to the home to speak to Jeffries about the truancy, he left believing that something was "severely wrong," after sensing fear in J.J. and M.J., whom he met on the same visit.

{¶ 3} The police expanded the investigation due to allegations that Jeffries was trafficking drugs out of the family home and sexually abusing his youngest daughter, R.J. Later, Detective Joe Carter conducted surveillance on the home and observed a large amount of vehicle traffic coming and going, with the visitors staying no more than a few minutes.

{¶ 4} During a search of Jeffries' home on April 14, the police recovered a large quantity of blue Percocet pills containing oxycodone, a schedule II controlled substance, in pill bottles not labeled with prescriptions. They found other evidence of drug trafficking and drug abuse, but not a ledger of transactions or a large amount of cash. And the police collected a towel and other items from R.J.'s bedroom for DNA testing based on R.J.'s statements concerning the sexual abuse.

{¶ 5} When interviewed by the police, Jeffries stated that any drugs recovered in the home belonged to him, and he made admissions concerning two cell phones the police recovered in the home. One cell phone was connected to text messages that incriminated Jeffries in the trafficking of drugs, and the other was connected to text messages that incriminated him in the sexual abuse of R.J.

{¶ 6} During the interview, Jeffries also made statements incriminating himself in the sex offenses against his daughter, including admitting that his semen would likely be found on the items from R.J.'s bedroom that were submitted for DNA testing. But he denied having an inappropriate relationship with R.J.

{¶ 7} After his arrest, Jeffries had several conversations with Liz over the telephone from the Hamilton County Justice Center that the police recorded. In these conversations, Jeffries discussed his drug-trafficking operation, asking Liz if the police had found the "blue caps," and lamenting that they had so many pills in the home at one time. In another conversation, he and Liz discussed that the reason why the police did not seize much money during the search was because Liz had it on her person.

{¶ 8} Ultimately, Jeffries was indicted in the case numbered B-1602033 on seven counts. The first count charged aggravated drug trafficking on or about April 14, 2016. The second, third, and fifth counts charged the rapes of R.J., and the fourth, sixth, and seventh charged gross sexual imposition ("GSI") related to R.J. The sex-offense counts involved conduct beginning in 2010 and ending on or about April 13, 2016.

{¶ 9} Jeffries moved for a separate trial on the first count, claiming both that the joinder of the drug-offense count in the same indictment as the sex-offense counts was not permitted under Crim.R. 8(A) because the offenses were completely unrelated, and that joinder was prejudicial under Crim.R. 14. The trial court denied his motion. But the court granted, over Jeffries' objection, the state's motion to join the indictment with another indictment charging Jeffries with one count of GSI involving another minor, K.P.

{¶ 10} At a single trial on both indictments, Jeffries tried to introduce evidence that R.J. had been sexually abused by a different individual who had been convicted for that conduct. The trial court found the evidence inadmissible under Ohio's rape-shield statute.

{¶ 11} Through various witnesses, the state presented substantial evidence of the offenses in the first indictment. But the evidence in support of the sex offenses related to R.J. did not include any DNA lab test results, even though the jury was informed that items had been collected from R.J.'s bedroom and submitted for DNA testing.

{¶ 12} Jeffries testified and denied sexually abusing R.J. In closing argument, defense counsel argued the state failed to prove he committed the sex offenses against R.J. because it did not present any DNA lab test results. The jury found Jeffries guilty on all the counts set forth in the first indictment, but acquitted him on the one count of GSI set forth in the second indictment. At sentencing, the trial court imposed consecutive prison terms, for an aggregate prison term of life without parole plus 37 years.

{¶ 13} Jeffries now appeals, raising six assignments of error. He argues the trial court erred by applying the rape-shield statute to exclude evidence of R.J.'s prior nonconsensual sexual activity. Further, he claims the trial court erred by failing to sever the drug-offense count from the sex-offense counts, and by ordering that his sentence on the drug offense be served consecutively to the sentences imposed for the sex offenses. Finally, Jeffries contends that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence, and that he was denied the effective assistance of counsel because counsel did not present expert testimony about the DNA testing.

{¶ 14} Finding no merit to the errors assigned, we affirm the trial court's judgment.

Trial Evidence

{¶ 15} The state's evidence at trial showed that Jeffries began sexually abusing R.J., who was born in December 2001, in the spring of 2010. She was nine years old, and the family was living in a house on Wenning Drive. R.J. had a "rash" on her "butt" that she was treating with a prescription cream. R.J. testified that one day, after Jeffries had applied the cream to the rash while she lay on her stomach on his bed, "he had me lay on my back, and he put a pillow over my face. * * * He just started rubbing me with a rag, and then he started rubbing me-rubbing his dick on my vagina."

{¶ 16} According to R.J., the sexual abuse continued through the years as the family, including her younger brother and older sister, moved to different residences. She specifically recalled for the jury an incident occurring one evening between June and August 2012, when she was 11 years old and the family was living on DeSoto Drive. She was in the living room alone with Jeffries, lying on the couch watching television. Without saying anything to her, Jeffries pulled down her pants and underwear and began licking her vagina and sticking his tongue in and out of it. Jeffries then told her to kiss his penis and put it in her mouth.

{¶ 17} R.J. also specifically recounted abuse that occurred one evening in December 2015 after a school concert. She was 14 years old, and had asked Jeffries on the drive home from her school if she could spend the night with a friend. He mentioned that it was a school night, and then pulled his car into the parking lot of the Towne Terrace Apartments on Pippen Road. There he reclined her seat and got on top of her. He then pulled down her pants and underwear, unzipped his zipper, rubbed his penis on her, and put his fingers inside her vagina. When finished, he agreed that she could spend the night with her friend.

{¶ 18} With respect to the April 13, 2016 incident, R.J. stated that she was 16 years old, and she and her father had returned to their house on Elkhorn Drive from a cheerleading meeting. Her brother and sister were not home, nor was Liz. When R.J. was in her bedroom, Jeffries entered and commented on how much money he would have to pay for her to participate in cheerleading. He then told her that for him to pay for it she needed to "inspire" him. Subsequently, he had her remove her clothes and lay on her back on her bed. After rubbing his penis on her vagina, he had her turn over and rise onto her elbows and knees. He then penetrated her vagina with his penis from the rear and had intercourse with her. Afterwards, he told her that she was his "favorite" and if she needed anything he would find a way to do it, but she would have to "inspire him for it."

{¶ 19} R.J. explained that her father would often use the code word "inspire" to indicate he wanted to touch her in exchange for something she wanted. The text messages between the two of them showed that Jeffries required "inspiration" for a variety of things, including keeping R.J.'s older sister out of her room and driving R.J. to school. Jeffries texted R.J., "I'll tell her to stay out of your room. * * * I'll add it to your inspirational list, ok," and "Of course you know with a little inspiration I can run you to school in 25 minutes, just [a] thought. Lol." Another message from Jeffries to R.J. provided, "Inspiration right when u wake up, ok. ;)." Additionally, in one series of text messages, after referencing that Liz was not home, Jeffries texted to R.J., "You should have inspired me in her absence. Missing it. Still have time."

{¶ 20} According to R.J., Jeffries also used the code word "air-dry" to relay to R.J. when she "ha[d] to sleep with no pants or underwear on" because he would be coming to her room to abuse her. For example, when Jeffries texted R.J. about switching her cell phone to his account, he added, "If you want me to do it, it will cost you though, you know! :-) Like air-dry visit late as needed." The relevant text messages showing Jeffries' use of these code words were admitted into evidence.

{¶ 21} R.J. explained that she had not wanted to engage in any of the sexual conduct with her father, but she feared him and did know how to say "no" to him. He would get "very angry" when he did not get his way, and had punished her and her siblings by beating them with a belt, striking their hands with spoons, and forcing them to eat soap.

{¶ 22} R.J. testified that when she was younger she had told "Jackie," a former stepmother, about the abuse, but Jackie had not believed her. After Jeffries forced her to have vaginal intercourse with him on April 13, 2016, R.J. for the first time told her older sister M.J. about the abuse that had occurred earlier in the day. This incident had been worse than the others and had "hurt."

{¶ 23} Consistent with R.J.'s testimony, M.J. stated that when she returned home from work on the evening of April 13, R.J. disclosed the abuse to her and told her it "hurt." They both cried about it. Although M.J. was previously unaware of the abuse, she said that it made sense to her when thinking about certain circumstances over the years. The night of the disclosure, M.J. slept in R.J.'s room due to fear of her father. The next day she reported the sex abuse to a counselor at the high school they both attended.

{¶ 24} After M.J. reported the abuse, R.J. was taken from her school to the Mayerson Center at Children's Hospital, where Tracy Collier, a social worker performed a forensic interview. Collier observed that R.J. discussed the sexual abuse in a matter-of-fact manner and looked down to the floor, a presentation and demeanor that, based on the social worker's experience, was not inconsistent with a victim of sexual abuse.

{¶ 25} Although the state did not present any DNA evidence, it did present several incriminating statements Jeffries had made when interviewed by Detective Mike Stockmeier about the sex-abuse allegations. This included Jeffries' statement that his semen would likely be found on a towel in R.J.'s bedroom. Jeffries had qualified the statement by stating that he had sex in R.J.'s bedroom with several women, and that he wanted to hide this conduct from Liz.

{¶ 26} The state's evidence at trial also demonstrated that Jeffries was trafficking the drug oxycodone in an amount far more than bulk out of the family's home. Detective Carter had observed a high amount of vehicle traffic outside the home, consistent with drug trafficking, before obtaining and executing a search warrant for the residence. During the search on April 14, 2016, the police recovered over 85 Percocet pills containing oxycodone that Jeffries claimed to own in an interview with the police.

{¶ 27} According to Detective Stockmeier, the amount of the drugs recovered was consistent with drug trafficking but not personal use, and exceeded the bulk amount by five times. The pills were contained in three bottles without prescription labels that were discovered in a basket of laundry along with a package of miniature plastic bags that zipped and drug paraphernalia. This included a pill crusher and a handful of cut plastic sipping straws, each labeled with a different name and containing residue from a white powder, to be used to snort crushed narcotic pills such as Percocet.

{¶ 28} The state also offered into evidence a printout of the many text messages downloaded from a black cell phone belonging to Jeffries that incriminated him in drug trafficking, and recorded telephone calls Jeffries made from jail that implicated him in the sale of the pills.

{¶ 29} Finally, both R.J. and M.J. testified that when they were under the age of 18 they had observed their father conduct sales of drugs in the home. According to these witnesses, Jeffries had used code names, and the drugs were exchanged for cash.

{¶ 30} Jeffries testified in his defense. He denied ever sexually abusing his daughter R.J. Jeffries further claimed he had learned the word "inspire" when he served in the Marine Corps, and he used the term with all his children, including R.J., to encourage them. Specifically, he said he used the word in his text messages with R.J. to encourage her to practice her cheerleading. But he acknowledged on cross-examination that when he used the word with R.J. the context was to inspire him-not her.

{¶ 31} Contrary to R.J.'s testimony, Jeffries stated that when he used the phrase "air-dry," he was communicating with R.J. to leave her bedroom door unlocked so he could dry some wet clothes with the ceiling fan in the room. He also suggested the reference to "air dry" in the text messages meant that she was not to wear any tight clothing because she had a boil or cyst on her vaginal area.

{¶ 32} Jeffries admitted that he had rubbed a prescription cream to "warts" on R.J.'s "vaginal" and "anal" areas when they lived on Wenning Road, explaining that her mother was not around to do it. He also confirmed R.J.'s testimony that years earlier R.J. had told his former wife "Jackie" that he was sexually abusing her.

{¶ 33} With respect to the drug-trafficking count, Jeffries testified that all of the illegally obtained Percocet pills recovered in the home were his. He admitted that some of the pills were intended to be sold, and contended that most were for his and Liz's personal use. But of the three bottles recovered, only one bottle was marked "personal," and that bottle contained just a few pills.

{¶ 34} Although Jeffries acknowledged that some pills were to be sold, and that he had sold illegally obtained prescription drugs in the past, he insinuated that Liz was running the drug-trafficking operation in his home.

Analysis

{¶ 35} Rape-Shield Statute . Jeffries' first assignment of error involves Ohio's rape-shield statute, R.C. 2907.02(D), which provides in relevant part:

Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section.

The statute then provides certain exceptions.

{¶ 36} At trial, Jeffries sought to introduce evidence that R.J. had been sexually abused by another person who had been convicted for that conduct. First, he tried to cross-examine R.J. on the issue, claiming it was relevant to show her knowledge of sexual terms used in her testimony, an argument he has abandoned on appeal. Later, he tried to present his own testimony on the topic, requesting to testify that he was rubbing a prescription cream on R.J.'s vaginal and anal areas because she had "a medical condition caused by the prior abuse." The trial court allowed Jeffries to testify that he was rubbing the cream on R.J.'s genital area due to "warts," but it did not allow Jeffries to testify that the warts were caused by the prior abuse. Jeffries argues this was error that violated his constitutional rights to confront witnesses and to present a defense.

{¶ 37} Initially, Jeffries argues, as he did before the trial court, that the rape-shield statute does not apply when the evidence sought to be introduced involves nonconsensual sexual activity of the victim. Because R.J.'s prior sexual abuse was nonconsensual, he contends testimony on the topic was not protected by the statute. In support of his argument, he cites State v. Stoffer , 7th Dist. Columbiana No. 09-CO-1, 2011-Ohio-5133, 2011 WL 4579182. In Stoffer , the Seventh District Court of Appeals held that the rape-shield statute does not apply to prior sexual abuse suffered by the victim. Id. at ¶ 98. The interpretation of a statute is an issue of law that this court reviews de novo. State v. Lamke , 2013-Ohio-925, 988 N.E.2d 913, ¶ 8 (1st Dist.).

{¶ 38} The state contends the rape-shield statute applies to both consensual and nonconsensual sexual activity, and argues the Ohio Supreme Court decided this issue in State v. Boggs , 63 Ohio St.3d 418, 588 N.E.2d 813 (1992). In Boggs , the alleged rape victim was alleged to have made prior false rape accusations against a person other than the defendant, and Boggs sought to cross-examine her on the issue. The court examined whether the rape-shield provisions of R.C. 2907.02(D) prohibited such cross-examination. The court stated

R.C. 2907.02 prohibits only evidence of "sexual activity" of the victim. Because prior false accusations of rape do not constitute "sexual activity" of the victim, the rape shield law does not exclude such evidence. A great number of courts from other jurisdictions have also reached this conclusion.
* * *
When the defense seeks to cross-examine on prior false accusations of rape the burden is upon the defense to demonstrate that the accusations were totally false and unfounded. Hence the initial inquiry must be whether the accusations were actually made by the prosecutrix. Moreover, the trial court must also be satisfied that the prior allegations of sexual misconduct were actually false or fabricated. That is, the trial court must ascertain whether any sexual activity took place, i.e., an actual rape or consensual sex . If it is established that either type of activity took place, the rape shield statute prohibits any further inquiry into this area. Only if it is determined that the prior accusations were false because no sexual activity took place would the rape shield law not bar further cross-examination.

(Emphasis added.) Id. at 423, 588 N.E.2d 813.

{¶ 39} Of importance, the Boggs court interpreted "sexual activity" to include "an actual rape." The Eighth District Court of Appeals in State v. Jeffries , 8th Dist. Cuyahoga No. 105379, 2018-Ohio-162, 2018 WL 460741, appeal accepted , Slip Copy No., 2018-Ohio-1989, 98 N.E.3d 292, relying on this same language in Boggs , disagreed with the Stoffer court's restrictive reading of the rape-shield statute and found the statute protected a child victim of sexual abuse. Id. at ¶ 17-20.

{¶ 40} We agree with the Eighth District's interpretation of the statute, and disagree with the appellant's and the Seventh District's interpretation, which undermines one of the recognized intentions of the law-"guarding the complainant's sexual privacy." State v. Gardner , 59 Ohio St.2d 14, 17, 391 N.E.2d 337 (1979). Thus, we hold the trial court properly determined that the rape-shield statute applies to testimony involving nonconsensual sexual activity, including R.J.'s prior sexual abuse.

{¶ 41} However, the rape-shield statute provides exceptions. Evidence of a victim's sexual activity that is generally excluded under the rape-shield statute may be admissible if it falls under one of the specifically delineated exclusions, including to show the origin of disease. R.C. 2907.02(D). But even then, it is only admissible "to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value." Id.

{¶ 42} Jeffries maintains that the evidence would have been admissible under the statutory exception to show why his daughter had genital medical issues. But Jeffries fails to explain how this evidence was material to a fact at issue in the case. How R.J. contracted the genital medical condition was not at issue. Further, the fact that R.J. had a medical condition that required the application of the prescribed cream was undisputed at trial, and both R.J. and Jeffries testified about it. Thus, we conclude that the trial court did not err by excluding the testimony Jeffries sought to elicit about R.J.'s prior sexual abuse.

{¶ 43} Next we address Jeffries' argument that the application of the rape-shield statute unconstitutionally infringed on his rights to confront witnesses and to present a defense. The rape-shield law may not be applied in violation of a defendant's constitutional rights. Gardner , 59 Ohio St.2d at 17, 391 N.E.2d 337 ; State v. Williams , 21 Ohio St.3d 33, 35, 487 N.E.2d 560 (1986). In determining whether the rape-shield statute has been unconstitutionally applied, the court must balance the interest of the state that the statute is designed to protect against the probative value of the excluded evidence. Gardner at 17, 391 N.E.2d 337.

{¶ 44} As recognized by the Ohio Supreme Court, the rape-shield statute advances several legitimate state interests:

First, by guarding the complainant's sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than the defendant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process.

Id. at 17-18, 391 N.E.2d 337.

{¶ 45} When balancing these interests with the probative value of the excluded evidence, we focus on the relevancy of the excluded evidence to the matters of proof of which it is offered. Id. at 18, 391 N.E.2d 337. We note also that a defendant has no constitutional right to use irrelevant evidence to confront a witness. State v. Leslie , 14 Ohio App.3d 343, 346, 471 N.E.2d 503 (2d Dist. 1984), citing Logan v. Marshall , 540 F.Supp. 3 (N.D.Ohio 1981).

{¶ 46} We have already determined that information about how R.J. acquired her medical condition was not relevant to any material fact. But Jeffries contends also that the excluded evidence was relevant to his defense because it "could" have "raise[d] doubts as to the recall and memory of the accuser." At best, this purpose is merely a general impeachment purpose that has no probative value with respect to the charged sexual abuse. Therefore, the challenged evidence was not admissible in furtherance of Jeffries' constitutional rights. See State v. Ferguson , 5 Ohio St.3d 160, 165, 450 N.E.2d 265 (1983) ; Williams , 21 Ohio St.3d at 36, 487 N.E.2d 560, citing Gardner and Ferguson .

{¶ 47} Because the prejudicial and inflammatory nature of the excluded testimony outweighed the probative value, if any, it may have had, we conclude that the application of the rape-shield statute did not violate Jeffries' constitutional rights. Accordingly, we overrule the first assignment of error.

{¶ 48} Misjoinder and Prejudicial Joinder . In his second assignment of error, Jeffries argues the trial court erred when it failed to order a separate trial for the drug-offense count. Jeffries asserts claims of misjoinder and prejudicial joinder, citing Ohio's criminal rules. He timely filed his motion to sever before trial in accordance with Crim.R. 12(G), and he later renewed it at the close of the state's case.

{¶ 49} "Joinder is liberally permitted to conserve judicial resources, reduce the chance of incongruous results in successive trials, and diminish inconvenience to the witnesses." State v. Schaim , 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992). See State v. Hamblin , 37 Ohio St.3d 153, 157-158, 524 N.E.2d 476 (1988). But there are limits governing the charging of multiple offenses in the same indictment. See State v. Mata , 6th Dist. Sandusky No. S-80-18, 1981 WL 5600 (May 22, 1981) (holding that aggravated-riot and receiving-stolen property charges were misjoined under Crim.R. 8(A).)

{¶ 50} Crim.R. 8(A) provides four conditions allowing joinder:

Two or more offenses may be charged in the same indictment * * * if the offenses charged * * *[1] are of the same or similar character, [2] are based on the same act or transaction, [3] are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or [4] are part of a course of criminal conduct.

{¶ 51} Jeffries maintains that none of the conditions of Crim.R. 8(A) apply to justify the joinder in this case. Specifically, he contends that the "drug and the sex charges" are "completely independent," "neither inextricably interwoven or related, and in fact had nothing to do with each other." Whether charges were misjoined in a single indictment in contravention of Crim.R. 8(A) is an issue of law that this court reviews de novo. State v. Kennedy , 2013-Ohio-4221, 998 N.E.2d 1189, ¶ 24 (1st Dist.).

{¶ 52} The state has never specifically identified which of the four conditions listed in Crim.R. 8(A) authorized the joinder. But at the hearing on Jeffries' motion, the prosecutor argued that joinder was proper because all the counts in the indictment resulted "from the same investigation" and the offenses "all happened together." The reasons the state offered for the joinder suggest the "continuing course of conduct" justification.

{¶ 53} The Supreme Court examined when offenses are part of a continuing course of conduct in Hamblin , 37 Ohio St.3d at 153, 524 N.E.2d 476. That case involved the murder by blunt force and the aggravated robbery of Lillian Merrick in a grocery store parking lot by the defendant, and the defendant's attempted murder by shooting of a park ranger in a park near the grocery store, about 20 minutes before Merrick was discovered. The park ranger had noticed Hamblin's blue green car in the park before the shooting. When the police searched Hamblin's car after his arrest for the shooting, they discovered evidence connecting Hamblin to the offenses against both victims. Id. at 153-154, 524 N.E.2d 476.

{¶ 54} When discussing these facts, the Hamblin court stated that

[t]he crimes of attempted murder and having a weapon while under a disability and aggravated murder and aggravated robbery took place at two locations one-eighth of a mile apart. The two criminal acts occurred less than twenty minutes of one another. The evidence relating to the two crimes was interrelated. * * * The interlocked evidence and the proximity in location and time of the two crimes confirm that the offenses were part of a continuing course of criminal conduct and joinder was proper under Crim.R. 8(A).

Id. at 158, 524 N.E.2d 476.

{¶ 55} In this case, the drug offense and the April 2016 sex offense against R.J. occurred around the same time and at the same location-Jeffries' house. In addition to this link, the evidence of these two offenses was interrelated. The state had to prove, to establish the elements of aggravated drug trafficking, that Jeffries committed the trafficking offense "in the vicinity of a juvenile." R.C. 2925.03(A)(2). R.J. was a juvenile living in the home and a witness to the drug trafficking, and she provided testimony to establish the aggravating element of the trafficking offense in addition to testifying about the sex offenses.

{¶ 56} Further, the offenses were investigated at the same time, resulting in additional overlapping witnesses. Having these shared witnesses testify at the same trial resulted in a savings of judicial resources and diminished inconvenience to the witnesses, two goals of joinder. See Schaim , 65 Ohio St.3d at 58, 600 N.E.2d 661. Considering the specific facts of this case, in light of the liberal rules of criminal joinder, we hold that the initial joinder was proper under Crim.R. 8(A) because the offenses were part of a course of criminal conduct. See Hamblin , 37 Ohio St.3d at 158, 524 N.E.2d 476.

{¶ 57} Even if offenses are correctly joined under Crim.R. 8(A), a trial court should order separate trials under Crim.R. 14 if it appears the failure to do so will prejudice the defendant's rights. See State v. Gordon , Slip Opinion No. 2018-Ohio-259, 152 Ohio St.3d 528, 98 N.E.3d 251, ¶ 20-21 ; Schaim at 58, 600 N.E.2d 661. To prevail on a claim of prejudicial joinder, the defendant must affirmatively demonstrate that (1) his rights were prejudiced by the failure to sever, (2) he provided the trial court with sufficient information to allow it to weigh the benefits of joinder against the defendant's right to a fair trial, and (3) the trial court abused its discretion by refusing to sever the charges for trial. Schaim at 59, 600 N.E.2d 661.

{¶ 58} Jeffries argues that he was unduly prejudiced by having the drug offense tried with the sex offenses, claiming that the evidence of drug trafficking was weak and the jury must have inferred guilt based on the evidence presented for the sex offenses.

{¶ 59} When offenses are correctly joined, a defendant is not prejudiced by the trial court's denial of a motion for separate trials where the evidence for each count would be admissible as evidence of "other acts" with respect to the other counts, or where the evidence for each count is sufficiently separate and distinct so as not to lead the jury into treating it as evidence of another. Schaim at 59, 600 N.E.2d 661 ; State v. Roberts , 62 Ohio St.2d 170, 175, 405 N.E.2d 247 (1980), cited in State v. Lott , 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990).

{¶ 60} To that end, the state argues that Jeffries was not prejudiced because the evidence of each offense was separate and distinct, such that the jury could separate and analyze the proof as to each and consider each offense independently, as specifically instructed to do. The jury's capability in this regard was reflected in the acquittal on the sex offense involving K.P.

{¶ 61} Here, the evidence was simple, direct, and substantial, undermining Jeffries' assertion that the jury cumulated the evidence submitted against him and did not base its finding of guilt upon evidence tied to the drug offense. Thus, we hold that where the drug offense and the sex offenses were part of a course of criminal conduct, and that the evidence of each offense was sufficiently separate and distinct, the trial court did not err by denying Jeffries' motion to sever. Accordingly, we overrule the second assignment of error.

{¶ 62} Sufficiency and Weight of the Evidence . In his third and fourth assignments of error, Jeffries argues that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. "[S]ufficiency is a test of adequacy" and "is a question of law." State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Evidence is sufficient to support a conviction when it permits a reasonable trier of fact to conclude, when viewing the evidence in the light most favorable to the state, that all the elements of the offense have been proved beyond a reasonable doubt. See State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶ 63} In deciding whether the conviction is against the manifest weight of the evidence, this "court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983), quoted in Thompkins at 387, 678 N.E.2d 541.

{¶ 64} We note that issues concerning the weight given to the evidence and the credibility of the witnesses are primarily for the finder of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

Aggravated Drug Trafficking

{¶ 65} The state proceeded against Jeffries on the aggravated-drug-trafficking charge (count 1) on the theory that on or about April 14, 2016, Jeffries knowingly prepared for distribution oxycodone, when he knew or had reasonable cause to believe that the controlled substance was intended for sale or resale by himself or another, in an amount equaling or exceeding bulk, and that he did so in the vicinity of a school or a juvenile. See R.C. 2925.03(A)(2). The bulk amount for the Percocet pills belonging to Jeffries and containing oxycodone was less than 16 pills. The state proceeded against Jeffries as the principal of the offense or as a complicitor to Liz.

{¶ 66} Jeffries argues the state did not present any evidence that he had prepared the pills for distribution. We disagree. The evidence presented by the state, if believed, indicated that Jeffries obtained at least 85 Percocet pills, put a few in a container marked "personal" to keep for his own use, and put the rest aside in two other containers with the intent that those pills would be sold. Once sold, the pills would be either crushed for regular customers who kept snorting straws in Jeffries' home, or placed in a miniature zip-lock like bag.

{¶ 67} The evidence also showed that Jeffries was engaged in and regularly dealt in the business of drug sales for profit. This included testimony from Detective Carter concerning the pattern of vehicle traffic outside the home, R.J.'s and M.J.'s testimony concerning drug transactions in the home, Jeffries' text messages and recorded phone call conversations, and Jeffries' testimony at trial that he sold drugs.

{¶ 68} From this set of facts, the jury reasonably could have inferred that Jeffries was preparing the pills in an amount equaling or exceeding bulk for distribution and sale, or that he was complicit in Liz's commission of the offense.

{¶ 69} Our review of the record convinces us that the evidence was not just sufficient, but overwhelming, and that the jury did not lose its way in its assessment of the weight and credibility of this evidence when finding Jeffries guilty of aggravated drug trafficking.

Sex Offenses

{¶ 70} Jeffries was convicted of several sex offenses related to his daughter R.J. This included rape in violation of R.C. 2907.02(A)(2), occurring when she was 14 years old (count 2), rape in violation of R.C. 2907.02(A)(2), occurring when she was 13 years old (count 3), GSI in violation of R.C. 2907.05(A)(1), occurring when she was 13 years old (count 4), rape in violation of R.C. 2907.02(A)(1)(b), occurring when she was 11 years old (count 5), GSI in violation of R.C. 2907.05(A)(4), occurring when she was 11 years old (count 6), and GSI in violation of R.C. 2907.05(A)(5), occurring when she was 9 years old (count 7).

{¶ 71} R.J. testified to the detailed incidents of rape and GSI that occurred on four separate occasions between 2010 and 2016. Her unequivocal testimony was corroborated by other evidence, including incriminating text messages sent to her from Jeffries, as well as Jeffries' statements to the police and M.J.'s testimony.

{¶ 72} Jeffries generally challenges the state's proof with respect to all the sex offenses, citing the lack of "physical" evidence such as DNA test results to corroborate R.J.'s testimony. But the state is not required to present corroborating DNA test results or other corroborating physical evidence to meet its burden of proof, even in a rape case. See State v. Lukacs , 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 39 (1st Dist.). See also State v. Nix , 1st Dist. Hamilton No. C-030696, 2004-Ohio-5502, 2004 WL 2315035, ¶ 67. Our review of the record shows the state easily met the test of sufficiency with respect to the sex offenses.

{¶ 73} Jeffries argues also that his testimony denying the conduct was more credible than the accusatory testimony of R.J. and M.J. In support of his conclusory attack on the credibility of these witnesses, he cites only one instance involving their testimony. This related to circumstances surrounding R.J.'s disclosure of the abuse to M.J. on April 13. M.J. testified that when she walked into R.J.'s room that evening, R.J. was unusually withdrawn and "upset," "just staring at her phone," which caused M.J. to ask her what was wrong. According to M.J., R.J. then wrote down what her father had done to her and then they talked about it. R.J., however, testified that she disclosed the abuse by showing M.J. the text messages from her father on her cell phone.

{¶ 74} Although the sisters' testimony was not identical on the issue of the disclosure, it was generally consistent, as both R.J. and M.J. recalled that the initial disclosure was nonverbal. The jury was free to judge the credibility of R.J. and M.J., and we cannot say that it lost its way in its assessment of the weight and credibility of the evidence. This evidence included Jeffries' implausible explanation for the text messages he sent to R.J. containing the words "inspire me" and "air dry." Ultimately, Jeffries' sufficiency and weight-of-the-evidence challenges are unfounded, and his third and fourth assignments of error are overruled.

{¶ 75} Ineffective Assistance of Counsel . In his fifth assignment of error, Jeffries claims he was denied the effective assistance of counsel because counsel did not call a DNA expert to testify as to the results of the DNA testing on items recovered from R.J.'s room. At trial, the evidence showed that items were taken for testing, but no test results were offered or admitted into evidence.

{¶ 76} To establish a claim of ineffective assistance of counsel, Jeffries must show that counsel's performance was deficient and that the deficient performance prejudiced him. State v. Jackson , 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice to the defendant results when there is a reasonable probability that, but for counsel's unprofessional error, the result of the trial would have been different. State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.

{¶ 77} When reviewing an ineffective-assistance-of-counsel claim, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley at 143, 538 N.E.2d 373, citing Strickland at 697, 466 U.S. 668, 687, 104 S.Ct. 2052. Here, Jeffries has failed to show any prejudice.

{¶ 78} Jeffries claims counsel was ineffective for not presenting an expert witness to testify as to the DNA test results, but there is nothing in the record from which we can determine that such testimony would have been favorable to Jeffries and caused the outcome of the trial to be different. The prosecutor suggested that the laboratory technician who performed the testing would have testified, based on the results, "[I] can't say it's his [DNA] and [I] can't say its not his [DNA]." But we do not know what any expert would have said about the test results.

{¶ 79} Similarly, Jeffries' claim fails to the extent he is additionally arguing counsel was ineffective for not hiring an expert to "separately examine" the items recovered from R.J.'s room. Nothing in our record shows that additional testing would have been favorable to Jeffries and would have altered the outcome of the trial. Accordingly, we overrule the fifth assignment of error.

{¶ 80} Consecutive Sentence for Drug Offense . Jeffries sixth assignment of error challenges his sentence. Jeffries does not attack the length of any sentence imposed. He argues only the trial court erred by ordering that he serve the sentence for the drug offense consecutively to the sex-offense sentences.

{¶ 81} When, as here, the trial court exercises its discretion to impose consecutive sentences, it must make the consecutive-sentences findings set out in R.C. 2929.14(C)(4), and those findings must be made at the sentencing hearing and incorporated into the sentencing entry. State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.

Jeffries first contends that the trial court failed to comply with the requirements of R.C. 2929.14(C)(4) because it failed to make findings with respect to the drug offense. But our review of the record shows the trial court made the requisite consecutive-sentencing findings for "all" the offenses at the sentencing hearing and then incorporated those findings into the sentencing entry, as required by Bonnell .

{¶ 82} Next Jeffries contends that the record could not support a finding that consecutive sentences were proportionate to the seriousness of the offender's conduct, the finding set forth in R.C. 2929.14(C)(4). According to Jeffries, there was no evidence of a "high-budget" drug-trafficking operation, as the police did not recover "large stacks of cash" or "flashy jewelry." But these facts were only part of the facts the trial court considered in determining whether to impose a consecutive sentence for the drug-trafficking operation that Jeffries ran out of the family residence.

{¶ 83} Under these circumstances, we cannot clearly and convincingly find that the record does not support the court's consecutive-sentencing findings or that the imposition of the consecutive sentence was contrary to law. See R.C. 2953.08(G)(2) ; State v. White , 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.). Thus, we overrule the sixth assignment of error.

Conclusion

{¶ 84} Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Mock, P.J., and Zayas, J., concur.


author: WILLAMOWSKI, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Dean A. KIMPEL, Defendant-Appellant.
    NO. 17-17-12
    Court of Appeals of Ohio, Third District, Shelby County.
    Date of Decision: June 11, 2018
    Jeremy M. Tomb for Appellant
    Aaron D. Lowe, Sidney, for Appellee
   WILLAMOWSKI, P.J.

{¶ 1} Defendant-appellant Dean A. Kimpel ("Kimpel") appeals the judgment of the Shelby County Court of Common Pleas for (1) denying his motion to withdraw his guilty plea; (2) considering statements that were inadmissible; and (3) considering charges that were without merit. For the reasons set forth below, the judgment of the trial court is affirmed.

Facts and Procedural History

{¶ 2} During his time as Shelby County Sheriff, Kimpel hired Jodi Van Fossen ("Van Fossen") as a detective in 2010. Tr. 8. On July 24, 2010, Van Fossen had a sexual encounter with Kimpel at her home in Auglaize County. Ex. 2. Several days after this encounter, Kimpel removed Van Fossen from her position on the drug task force. Ex. 2, F. On August 10, 2010, Van Fossen informed her supervisor that she had been sexually harassed and sexually assaulted by Kimpel in the lead up to her removal from the drug task force. Ex. 2, F. She also reported that Kimpel had performed an Ohio Law Enforcement Gateway ("OHLEG") search of her personal information. Ex. F.

{¶ 3} On August 31, 2010, Captain Chris Barbuto ("Barbuto") of the Licking County Sheriff's Office was assigned to conduct the internal affairs investigation of Van Fossen's allegations of sexual harassment. Tr. 241. Prior to conducting an interview with Kimpel, Barbuto issued Kimpel a Garrity warning. Tr. 247-248. Ex. 15. In the subsequent interview, Kimpel admitted that he looked up Van Fossen's address on OHLEG for the purpose of sending her flowers. Tr. 244-245. Ex. F.

{¶ 4} Van Fossen initially indicated to the prosecutors involved in the investigation that she was unwilling to initiate a criminal proceeding against Kimpel. Ex. 1. However, Van Fossen subsequently decided to file a complaint with the Auglaize County Sheriff's Office on January 31, 2011. Doc. 1. The complaint alleged that she was incapacitated at the time of her sexual encounter with Kimpel on July 24, 2010, and that she, therefore, had been a victim of sexual battery. Ex. 3. Pursuant to this complaint, Auglaize County initiated an investigation. Ex. 11. The evidence gathered from this investigation was turned over to the Ohio Bureau of Criminal Investigation ("BCI"). Ex. 11.

{¶ 5} On September 21, 2011, Kimpel was charged in Auglaize County with one count of sexual battery in violation of R.C. 2907.03. On September 29, 2011, Kimpel was charged in Shelby County with five counts of unauthorized use of OHLEG in violation of R.C. 2913.04(D). Doc. 1. Kimpel then submitted discovery requests in Auglaize County and Shelby County. Doc. 16, 32. In response, the special prosecutor sent Kimpel a discovery packet that contained the materials produced in the course of the relevant investigations. Ex. 12. However, this packet did not include the contents of the Auglaize County investigation. Ex. 11, 12. Tr. 107.

{¶ 6} On April 9, 2012, Kimpel filed a motion to dismiss the OHLEG charges with the trial court. Doc. 52. This motion argued that R.C. 2913.04(D) was void for vagueness and, therefore, unconstitutional. Doc. 53. Ex. C. As part of a joint plea agreement, however, Kimpel agreed to plead guilty to one charge of unauthorized use of OHLEG in violation of R.C. 2913.04(D). As a part of this plea agreement, the special prosecutor agreed to enter a nolle prosequi as to the sexual battery charge pending in the Auglaize County Court of Common Pleas, and the special prosecutor agreed to dismiss four charges of unauthorized use of OHLEG out of the five OHLEG violations pending in the Shelby County Court of Common Pleas and amend the remaining OHLEG violation to a charge of unauthorized use of a computer in violation of R.C. 2913.04(B). Doc. 60. At a hearing on April 13, 2012, Kimpel withdrew his previously filed motion to dismiss and pled guilty to one charge of unauthorized use of a computer in violation of R.C. 2913.04(B). Doc. 57, 60. The trial court allowed Kimpel to withdraw his motion to dismiss, accepted his guilty plea, and sentenced Kimpel on June 15, 2012. Doc. 60, 64.

{¶ 7} In the summer of 2015, Kimpel came across an article that reported the sexual battery charges against him had been dropped because Van Fossen refused to testify. Tr. 188. Subsequently, Kimpel filed a document request with the Ohio Attorney General's Office. Tr. 192. On August 12, 2015, he received a copy of the Auglaize County investigative report. Tr. 192. On October 17, 2016, Kimpel filed a motion to withdraw his prior plea of guilty in Shelby County. Doc. 86. A hearing was held on this motion on May 12, 2017. Doc. 161. At the hearing on his motion to withdraw, Kimpel claimed that this report showed inconsistencies in Van Fossen's stories. Tr. 198. He further claimed that he would not have pled guilty if he had received the contents of the Auglaize County investigation. Tr. 195.

{¶ 8} Kimpel's trial attorney, Michael A. Rumer ("Rumer"), also testified after he had reviewed the Auglaize County report in preparation for the hearing on this motion. Tr. 103. Rumer testified that the Licking County internal affairs report made him "aware of all of the content of the [Auglaize County] report." Tr. 119. Rumer also said that he found the accounts in the Auglaize County report to be substantially consistent with the other interviews he had in his possession through discovery, though he noted "there are nuances in each [of Van Fossen's] interview[s]." Tr. 121.

{¶ 9} In addition to the materials before the trial court, Rumer noted that he also had the benefit of having Kimpel's side of the story and "the entire insurance company defense discovery file on the civil case that Van Fossen had filed." Tr. 145. At the end of his testimony, Rumer stated that the Auglaize County report would not have changed the legal advice he gave to Kimpel. Tr. 153. He explained that he advised Kimpel to plead guilty so that the sexual battery charge would be dismissed. Rumer testified, however, that he was not concerned about the factual strength of the State's case. Tr. 130. Rather, he was primarily concerned about the political risks of Kimpel standing trial for sexual battery. Tr. 130.

{¶ 10} During the hearing, Kimpel's counsel challenged the admission of statements Kimpel had made during the internal affairs investigation, arguing that these statements could not be used in a criminal proceeding under Garrity v. New Jersey , 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Tr. 242, 248. The trial court determined that the statements Kimpel made in the course of the internal affairs investigation were inadmissible. Tr. 295. However, in its judgment entry on Kimpel's motion to withdraw, the trial court referenced one of Kimpel's statements in which he admitted to using OHLEG improperly. Doc. 168. On July 27, 2017, the trial court denied Kimpel's motion to withdraw, finding that no Brady violation had occurred. Doc. 168.

{¶ 11} Appellant filed notice of appeal on August 15, 2017. Doc. 165. On appeal, Kimpel raises the following assignments of error:

First Assignment of Error
The trial court abused its discretion in denying defendant's motion to withdraw guilty plea for the reason that the state failed to disclose evidence material to his defense.
Second Assignment of Error
The trial court abused its discretion in considering defendant's statements [in] the Licking County report after it found that these statements were not admissible.
Third Assignment of Error
The trial court abused its discretion when it considered the charges against defendant and seemingly found merit in them even though, in addition to the evidence withheld regarding the Auglaize County case, the charges in the Shelby County case were without merit.

We will consider the first and third assignments of error prior to consideration of the second assignment of error.

First Assignment of Error

{¶ 12} In his first assignment of error, Kimpel argues that the failure of the prosecution to disclose the contents of the Auglaize County investigation was a Brady violation that amounts to a manifest miscarriage of justice. For this reason, he asserts that the trial court erred in denying his motion to withdraw his guilty plea.

Legal Standard

{¶ 13} "[A] counseled plea of guilty is an admission of factual guilt which removes issues of factual guilt from the case * * *." State v. Wilson , 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), paragraph one of the syllabus. By pleading guilty, a defendant "forgoes not only a fair trial, but also other accompanying constitutional guarantees." United States v. Ruiz , 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). "Given the seriousness of the matter, the Constitution insists, among other things, that the defendant enter a guilty plea that is 'voluntary' and that the defendant must make related waivers 'knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences.' " Id. , quoting Brady v. United States , 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed. 2d 747 (1970). However,

the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor.

Ruiz at 630, 122 S.Ct. 2450.

{¶ 14} In Brady v. Maryland , the United States Supreme Court held that a defendant is denied due process when the prosecution fails, upon the request of the Defense, to disclose material evidence that is favorable to the accused. Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Evidence is material

only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.

United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Since a defendant must have "a sufficient awareness of relevant circumstances and likely consequences," a Brady violation may affect the validity of a guilty plea. Ruiz at 629, 122 S.Ct. 2450.

{¶ 15} However, "[t]he Brady rule exists principally to protect a criminal defendant's right to a fair trial."

State v. Riley , 4th Dist. Washington No. 16CA29, 2017-Ohio-5819, 2017 WL 2988070, ¶ 24, citing Bagley at 675-676, 105 S.Ct. 3375.

[I]mpeachment information is special in relation to the fairness of a trial , not in respect to whether a plea is voluntary ('knowing,' 'intelligent,' and 'sufficient[ly] aware'). Of course, the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be. But the Constitution does not require the prosecutor to share all useful information with the defendant.

(Emphasis sic). Ruiz at 629, 122 S.Ct. 2450, citing Weatherford v. Bursey , 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). For this reason, "the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant." Ruiz at 633, 122 S.Ct. 2450.

{¶ 16} A defendant may make a motion to withdraw a guilty plea pursuant to Crim.R. 32.1, which reads as follows:

[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.

Crim.R. 32.1. The defendant bears the burden of establishing the presence of a manifest injustice. State v. Howard , 3d Dist. Logan Nos. 8-17-02 and 8-17-09, 2017-Ohio-8020, 2017 WL 4351394, ¶ 43. A manifest injustice is "a clear or openly unjust act." State ex rel. Schneider v. Kreiner , 83 Ohio St.3d 203, 207, 699 N.E.2d 83 (1998). "[A] postsentence withdrawal motion is allowable only in extraordinary cases." State v. Smith , 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). "A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action." Brady at 757, 90 S.Ct. 1463.

{¶ 17} A trial court's ruling on a postsentence motion to withdraw a guilty plea pursuant to Crim.R. 32.1 will not be disturbed absent an abuse of discretion. State v. Caraballo , 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). An abuse of discretion not merely an error of judgment. State v. Sullivan , 2017-Ohio-8937, 102 N.E.3d 86, ¶ 20 (3d Dist.). Rather, an abuse of discretion is present where the trial court's decision was arbitrary, unreasonable, or capricious. State v. Howton , 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, 2017 WL 2628060, ¶ 23. When the abuse of discretion standard applies, an appellate court is not to substitute its judgment for that of the trial court. State v. Thompson , 2017-Ohio-792, 85 N.E.3d 1108 (3d Dist.).

Legal Analysis

{¶ 18} At the hearing on Kimpel's motion to withdraw his guilty plea, Kimpel testified that the content of the Auglaize County investigation was different from the other materials he received. Tr. 192-195. He also testified that he would not have pled guilty if he had the contents of this investigation. Tr. 195. However, Rumer testified that the disclosures that the Defense received from the State contained the information that was in the undisclosed Auglaize County report and that Van Fossen's statements in the Auglaize County investigation were consistent with the statements that he had obtained in discovery. Tr. 119. Rumer noted that there were nuanced differences between Van Fossen's accounts, but said that these differences would go to her credibility and to Kimpel's credibility. Tr. 121. Rumer also testified that his primary concern in advising Kimpel to plead guilty was not the factual strength of the State's case. Doc. 168. Tr. 130. Rather, Rumer was primarily concerned with the political risks of a former Sheriff being tried in Auglaize County on a sexual battery charge filed by a former employee. Doc. 168. Tr. 130. Further, Rumer also said that he would not have changed his advice based upon the information that was in the Auglaize County investigation. Tr. 153.

{¶ 19} After reviewing the information in the record, we find that the trial court's determination was correct. The trial court found that Van Fossen's statements in the Auglaize County investigation were consistent with her prior statements. Doc. 168. Since the Defense was aware of the information obtained through the Auglaize County investigation through different materials contained in other discovery disclosures, the prosecution did not withhold material, exculpatory evidence. Doc. 168. As Rumer testified, this information was substantially duplicative of materials already in the possession of the Defense and would not have changed Rumer's advice to Kimpel. Tr. 153. This duplicative information would not have changed the outcome of this case.

{¶ 20} Further, the information from the Auglaize County investigation, at best, may have been useful in testing Van Fossen's credibility on cross examination. However, under Brady and its progeny, the State is not constitutionally required to disclose evidence that might be useful for impeachment purposes at trial while a plea agreement is being negotiated. Ruiz, supra , at 633, 122 S.Ct. 2450. In hindsight, Kimpel may wish that he had made a different decision, but he failed to establish that he was unfairly deprived of the opportunity to make an informed decision. For these reasons, we find that no Brady violation occurred. Kimpel has not, therefore, carried the burden of establishing a manifest miscarriage of justice. For this reason, Kimpel's first assignment of error is overruled.

Third Assignment of Error

{¶ 21} In his third assignment of error, Kimpel makes a second argument against the trial court's decision to deny his motion to withdraw his guilty plea. In its judgment entry, the trial court stated that the plea agreement secured "a significant reduction in the original charges," leading to five of the six charges against Kimpel being dropped. Doc. 168. Kimpel argues that the trial court should have recognized that the five unauthorized use of OHLEG charges were "weak" and that Kimpel only pled guilty because of the risks associated with the sexual battery charge.

Legal Standard

{¶ 22} We herein reincorporate the legal standard set forth under the first assignment of error.

Legal Analysis

{¶ 23} On appeal, Kimpel argues that he pled guilty to one count of unauthorized use of a computer in violation of R.C. 2913.04(B) to avoid the risks of standing trial on the sexual battery charge against him. This position is supported by Rumer's testimony and the fact that he argued the OHLEG charges were weak in his motion to dismiss prior to his guilty plea. Doc. 52. Tr. 130-131. However, Kimpel did not demonstrate that the undisclosed information in the Auglaize County investigation contained material, exculpatory evidence regarding the sexual battery charge. Thus, he was aware of the relevant circumstances at the time that he made his guilty plea.

{¶ 24} Since he did not establish a Brady violation occurred, Kimpel has failed to demonstrate that he was unfairly deprived of the opportunity to assess the risks associated with the sexual battery charge and his decision to plead guilty. Further, we also note that, in this assignment of error, Kimpel merely challenges one of a number of factors on which the trial court based its decision to deny his motion to withdraw. This argument does not establish a manifest miscarriage of justice. For this reason, his third assignment of error is overruled.

Second Assignment of Error

{¶ 25} In his second assignment of error, Kimpel challenges the trial court's use of statements he made during a Garrity interview. He argues that the trial court based its decision on evidence that it had previously deemed inadmissible and, in so doing, abused its discretion.

Legal Standard

{¶ 26} Under Crim.R. 52(A), "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Crim.R. 52(A). "In most cases, in order to be viewed as 'affecting substantial rights,' 'the error must have been prejudicial.' " (Emphasis sic.) State v. Harris , 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36, quoting State v. Fisher , 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7.

Legal Analysis

{¶ 27} In this case, Kimpel was subject to an internal affairs investigation. Ex. F. During an interview as part of this investigation, he made an incriminating statement. Ex. F. However, prior to making this statement, he was given a Garrity warning, which advised him that the statements he gave in this interview would not be used against him in a criminal proceeding. Ex. 15. See Garrity, supra . On appeal, Kimpel has not identified an instance in which this statement was used during the course of the original action. Rather, he identifies one reference to this incriminating statement in the trial court's ruling on his motion to withdraw his guilty plea. Doc. 168. Thus, this alleged violation is not related to the original guilty plea.

{¶ 28} In this particular case, the use of this particular Garrity statement does not affect the disposition of Kimpel's motion to withdraw. In Kimpel's motion to withdraw his guilty plea, he alleges that the State committed a Brady violation that amounts to a miscarriage of justice. If Kimpel's Garrity statement is excised from the judgment entry, the trial court's reasoning and determination remains the same because the disposition of this case rests on facts related to the alleged Brady violation and not the contents of a Garrity interview that was not considered in the original action. The trial court ultimately denied his motion to withdraw because Kimpel failed to establish a manifest injustice occurred. If the trial court erred in referencing this incriminating statement, it was a harmless error because Kimpel did not suffer any prejudice. Thus, Kimpel's third assignment of error is overruled.

Conclusion

{¶ 29} Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Shelby County Court of Common Pleas is affirmed.

Judgment Affirmed

PRESTON and HALL, J.J., concur.

** Judge Michael Hall of the Second District Court of Appeals, sitting by Assignment of the Chief Justice of the Supreme Court of Ohio.