# Woods v. Warden, Warren Correctional Institution

> District Court, S.D. Ohio · February 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10377335

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** February 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10377335

## How later opinions describe it (automated extraction)

- noting that there is sufficient evidence to support a conviction even if the "circumstantial evidence does not remove every reasonable hypothesis except that of guilt"
- holding that even if the only evidence was testimony of the victim, that is sufficient to support a conviction, even absent physical evidence or other corroboration
- holding that victim's testimony that habeas petitioner abducted her and raped her was constitutionally sufficient to sustain conviction despite lack of corroborating witness or physical evidence

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

FRANKLIN WOODS,

Petitioner, : Case No. 1:20-cv-618

- vs - District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, Warren Correctional
Institution

:
Respondent.
REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Franklin Woods under 28 U.S.C. §
2254, is before the Court for decision on the merits. Relevant pleadings are the Petition (ECF No.
1), the State Court Record (ECF No. 7), the Warden’s Return of Writ (ECF No. 8), and Petitioner’s
Reply (ECF No. 9).
The Magistrate Judge reference in the case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District. Final decision of the case remains
with District Judge Timothy Black.

Litigation History

This case arises out of two cases in the Common Pleas Court of Lawrence County, Ohio.
On December 16, 2015, Woods waived indictment and pleaded not guilty to an information
charging him with one third-degree felony count of gross sexual imposition in violation of Ohio
Revised Code § 2907.05(A)(4)(Lawrence County Case No. 15-CR-301)(Waiver of Indictment, State
Court Record, ECF No. 7, Ex. 1).
On February 24, 2016, a Lawrence County, Ohio, grand jury indicted Woods on four
fourth-degree felony gross sexual imposition counts in violation of Ohio Revised Code §

2907.05(A)(1); four third-degree felony gross sexual imposition counts in violation of Ohio
Revised Code § 2907.05(A)(4); four first-degree felony rape counts in violation of Ohio Revised
Code § 2907.02(A)(2); two first-degree felony rape counts in violation of Ohio Revised Code §
2907.02(A)(1)(b); three second-degree felony sexual battery counts in violation of Ohio Revised
Code § 2907.03(A)(5); and one third-degree felony sexual battery count in violation of Ohio
Revised Code § 2907.03(A)(5)(Lawrence County Case No. 16-CR-33)(Indictment, State Court
Record, ECF No. 7, Ex. 14).
After the trial judge denied Woods’ motion to suppress, the cases were tried jointly to a
jury in November, 2016, which found Woods guilty of one first-degree felony rape charge and four

third-degree felony gross sexual imposition charges, but not guilty of the other indicted charges. He
was sentenced to an aggregate term of 32.5 years to life imprisonment.
Woods appealed to the Ohio Court of Appeals for the Fourth District which affirmed the
convictions. State v. Woods, 2018-Ohio-4588 (Ohio App. 4th Dist. Nov. 7, 2018), appellate jurisdiction
declined, 2019-Ohio-3731 (2019). He then timely filed his petition in this Court, raising the
following grounds for relief:
GROUND ONE: Two step interrogation prohibited by the Supreme
Court in Missouri v. Seibert.

GROUND TWO: The trial court erred when it denied “Petitioner
Woods” motion to suppress when Deputy Chaffins failed to
“scrupulously honor” Woods’ assertion of his right to remain silent.
GROUND THREE: Trial court findings regarding statements
obtained by Amber Stamper are factually inaccurate and not
supported by the record.

GROUND FOUR: Randy Thompson and Amber Stamper should
be considered agents of law enforcement.

GROUND FIVE: Woods’ convictions were based on insufficient
evidence and against the manifest weight of the evidence.

(Petition, ECF No. 1).

Analysis
Ground One: Improper Interrogation Techniques
Ground Two: Error in Denial of Motion to Suppress
Ground Three: Inaccurate Factual Findings Regarding Statements Taken By Amber
Stamper
Ground Four: Randy Thompson and Amber Stamper Should Be Considered Law
Enforcement Agents

In his First Ground for Relief, Woods claims he was subjected to the method of
interrogation which the Supreme Court declared unconstitutional in Missouri v. Seibert, 542 U.S.
600, 609 (2004). In his Second Ground he asserts his motion to suppress should have been granted
because his right to remain silent was not properly honored by Deputy Sheriff Chaffins. His Third
Ground challenges the accuracy findings regarding his statements taken by Amber Stamper. And
in his Fourth Ground he claims Amber Stamper and Randy Thompson should be treated as law
enforcement agents for purposes of enforcing his Fifth Amendment rights.
Respondent defends these claims on the merits, asserting that the Fourth District’s decision
of them is not an unreasonable application of clearly established Supreme Court precedent (Return,
ECF No. 8, PageID 1433, et seq.). In his Response, Woods asserts that his children had already
been removed from his home when he was first interviewed (ECF No. 9, PageID 1463-64). He
asserts he was under the influence of alcohol, marijuana, and mood stabilizers during the

interviews. Id. at PageID 1464-66. He also asserts Chaffins and Thompson together used
questioning which failed to respect his right to remain silent. Id.
The relevant portions of the Fourth District’s decision are as follows:
[*P34] In his first and second assignments of error Woods asserts
that the trial court erred in denying his motion to suppress statements
he made to social worker supervisor Thompson and Deputy Sheriff
Chaffins. Appellate review of a trial court's decision on a motion to
suppress raises a mixed question of law and fact. State v. Hobbs, 133
Ohio St.3d 43, 2012-Ohio-3886, 975 N.E.2d 965, ¶ 6. Because the
trial court acts as the trier of fact in suppression hearings and is in
the best position to resolve factual issues and evaluate the credibility
of witnesses, we must accept the trial court's findings of fact if they
are supported by competent, credible evidence. State v. Burnside,
100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
Accepting these facts as true, we must then "independently
determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard." Hobbs at ¶
8, citing Burnside at ¶ 8.

2. Two-Step Interrogation Technique

[*P35] First Woods asserts that the trial court erred in denying his
motion to suppress because his statements to Thompson and Deputy
Sheriff Chaffins were inadmissible as part of the two-step
interrogation technique prohibited by the United States Supreme
Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159
L.Ed.2d 643 (2004). The plurality in Seibert held that a "midstream
recitation of [Miranda] warnings after interrogation and unwarned
confession" does not "comply with Miranda's constitutional
requirement." Id. at 604. In that case a police officer intentionally
questioned a defendant at a police station following her arrest
without providing Miranda warnings. During this questioning the
defendant made incriminating statements. The officer then gave the
defendant a 20-minute break. After the break the same officer gave
the defendant Miranda warnings, obtained a signed waiver, and
resumed questioning. During this second round of questioning the
officer confronted the defendant with the prewarning statements.
The defendant repeated her incriminating statements.

[*P36] The court referred to the police officer's "midstream"
warning as a specifically designed police strategy of "question-
first." Id. at 609-611. The court determined that "[t]he object of
question-first is to render Miranda warnings ineffective by waiting
for a particularly opportune time to give them, after the suspect has
already confessed." Id. at 611. After an objective determination
from the perspective of the suspect about whether Miranda warnings
delivered midstream could be effective enough to accomplish their
purpose, the plurality held that the defendant's postwarning
statements were inadmissible. Id. at 615-616. The Supreme Court of
Ohio applied Seibert in State v. Farris, 109 Ohio St.3d 519, 2006-
Ohio-3255, 849 N.E.2d 985.

[*P37] But before we apply Seibert, we must first decide whether
Woods made his prewarning statement to Thompson in the context
of a custodial interrogation by a law enforcement officer or agent. If
Woods was not subjected to custodial interrogation, Miranda
warnings were not necessary, making Seibert and Farris
inapplicable. See State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-
7556, 90 N.E.3d 857, ¶ 105-106.

[*P38] In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966), the United States Supreme Court established
procedural safeguards for securing the constitutional privilege
against self-incrimination. Id. To protect this right the court held that
"the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination." Miranda, 384 U.S.
at 444.

[*P39] The key issue in this case is whether Woods was in custody
when Thompson questioned him. Custodial interrogation is that
"questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of
action in any significant way." Miranda, 384 U.S. at 444; City of
Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d
810, ¶ 9. "'Custody' is a term of art that specifies circumstances that
are thought generally to present a serious danger of coercion."
Howes v. Fields, 565 U.S. 499, 508-509, 132 S.Ct. 1181, 182
L.Ed.2d 17 (2012). In determining whether a person is in custody,
courts must examine all the circumstances surrounding the
interrogation to ascertain whether a reasonable person would have
felt at liberty to terminate the interrogation and leave. Id. "The
ultimate inquiry is simply whether there [was] a formal arrest or
restraint on freedom of movement' of the degree associated with a
formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct.
3517, 77 L.Ed.2d 1275 (1983), quoting Oregon v. Mathiason, 429
U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). "The relevant
inquiry in determining whether a person is subject to custodial
interrogation focuses upon how a reasonable person in the suspect's
position would have understood the situation[;] [t]he subjective
views of the interviewing officer and the suspect do not control
whether a custodial interrogation occurred." State v. Fouts, 4th Dist.
Washington No. 15CA25, 2016-Ohio-1104, ¶ 19.

[*P40] Relevant factors include the location of the questioning, its
duration, statements made during the interview, the presence or
absence of physical restraints during the questioning, and the release
of the interviewee at the end of the questioning. See Howes, 565
U.S. at 509; State v. Edmond, 10th Dist. Franklin No. 15AP-574,
2016-Ohio-1034, ¶ 12.

[*P41] The trial court refused to suppress Woods's statement to
Thompson, finding it was not the product of custodial interrogation.
The trial court relied upon the following facts: (1) Woods had
returned a phone call to the social worker, Stamper; (2) he
voluntarily came to the social worker's office building; (3) there
were no locked doors preventing Woods from leaving at any time
he wished to; and (4) he was never told he was not free to leave.

[*P42] Woods asserts that the trial court's factual finding that he
came to the department of job and family services building
voluntarily was not supported by the evidence because he only
appeared after Stamper told him that he would need to sign a safety
plan before M.W. could return to him. But he cites no testimony or
other evidence from the suppression hearing establishing that
Stamper threatened him with permanent removal of his daughter and
other children if he failed to come in to sign the safety plan. In fact
his daughter had already left his home through placement with his
fiancée's mother when Stamper talked to him. And Woods told
Thompson that he wanted his children to be placed there at least
temporarily. The trial court's findings were supported by the
evidence at the suppression hearing.
[*P43] The relevant circumstances include: (1) Thompson's
interrogation occurred at a county department of job and family
services office building rather than a police station; (2) Woods
voluntarily came to the building at the social worker's request; (3)
the interrogation was brief—lasting only about 25 minutes; (4)
Woods indicated a willingness to talk freely about his daughter's
allegations of sexual abuse because he did not want to drag his
daughter through a trial and he was remorseful and ashamed about
what he had done to her; (5) he was not physically restrained during
the interrogation and he was free to leave at any time during it or
during the 45-minute break before Deputy Sheriff Chaffins arrived;
and (6) Thompson expressly told him during the interview that they
did not "have to do" the interview.

[*P44] Moreover, when he interrogated Woods, Thompson was
not acting in his capacity as a police officer or an agent of the police.
The trial court concluded that although Thompson was also a part-
time village police officer, he had no police powers outside the
village, and there was no evidence that Woods had any knowledge
that Thompson was also a police officer. The trial court's findings
were supported by Thompson's testimony at the suppression
hearing, as well as his statement to Woods during the interview, that
neither he nor Stamper were police officers. Although counsel
speculates that Woods could have known Thompson to be a police
officer because of where he lived, there is nothing in the suppression
hearing that supports this speculation. Consequently, a reasonable
person in Woods's position would not have believed that Thompson,
who was acting as a social worker supervisor, and was not dressed
in a police uniform with a badge or gun, was a police officer.

[*P45] Although Miranda's requirements clearly apply to persons
acting as agents of law enforcement, see State v. Phillips, 4th Dist.
Highland No. 11CA11, 2011-Ohio-6773 ¶ 9, we are not persuaded
that Thompson and Stamper acted in that capacity while
interviewing Woods. Children's services agencies like the Lawrence
County Department of Job & Family Services have a statutory duty
to investigate any complaint concerning child abuse. Their
investigators and employees are required to attempt to interview
alleged perpetrators in child abuse cases and to report all known and
suspected child abuse to law enforcement. State v. Kessler, 12th
Dist. Fayette No. CA2005-12-037, 2007-Ohio-1225, ¶ 19, citing
R.C. 5153.16(A).

[*P46] Ohio courts have consistently held that in general, children
services case workers and employees are not considered law
enforcement officers and consequently have no duty to advise
suspects of their Miranda rights. Id.; State v. Coonrod, 12th Dist.
Fayette No. CA2009-08-013, 2010-Ohio-1102, ¶ 9, quoting State v.
Thoman, 10th Dist. Franklin No. 04AP-787, 2005-Ohio-898, ¶ 7
("In general, Ohio courts have held that 'social workers have no duty
to provide Miranda warnings because they are private individuals
without the power to arrest'"). The Supreme Court of Ohio recently
adopted this general precept by holding that "[a] social worker's
statutory duty to cooperate and share information with law
enforcement with respect to a child abuse investigation does not
render the social worker an agent of law enforcement for purposes
of the Fifth and Sixth Amendments to the United States Constitution
when the social worker interviews an alleged perpetrator unless
other evidence demonstrates that the social worker acted at the
direction or under the control of law enforcement." State v. Jackson,
154 Ohio St. 3d 542, 2018-Ohio-2169, 116 N.E.3d 1240, syllabus.
Here, Woods relies upon Thompson's dual employment as a social
worker and police officer to distinguish Jackson.

[*P47] Under limited circumstances appellate courts have upheld
trial court determinations that a social worker was acting as an agent
of law enforcement for purposes of custodial interrogation, thus
requiring Miranda warnings. See, e.g., State v. Brown, 91 Ohio
App.3d 427, 632 N.E.2d 970 (6th Dist.1993) (defendant was
coerced and in custody during interview at department of human
services where DHS social worker told the defendant that his
stepdaughter would be removed from his home if he did not attend
interview, a 6'5" police officer dominated and controlled the
interview by moving to a position no more than a few inches away
from him, the interview lasted more than an hour, which created an
intimidating atmosphere in which a reasonable person would not
have felt free to leave); State v. Torres, 67 Ohio App.3d 268, 586
N.E.2d 1153 (6th Dist.1990) (defendant was in custody for purposes
of Miranda warnings when, after agreeing to interview on
allegations that he had sexual contact with a minor, he was taken to
a private room at the department of human services by an agency
representative and an investigator for the prosecutor, who were
acting as an arm of the police department in an atmosphere that was
police dominated).

[*P48] These cases, which Woods relies upon, are easily
distinguishable. There was no evidence at the suppression hearing—
as in Brown—that the social worker threatened removal of the child
from his home; the child had already been removed as Woods
himself argued was advisable. Nor was the interrogation dominated
by either a large, intimidating uniformed police officer or a
prosecutor's investigator—as in Brown and Torres. And
significantly, the trial court here did not find a coercive, custodial
atmosphere. See State v. Walker, 10th Dist. Franklin No. 97AP02-
212, 1997 Ohio App. LEXIS 4216, 1997 WL 578946, *7 (Sept. 16,
1997) (distinguishing Brown because the trial court in that case
determined that there was an in-custody, police dominated
atmosphere surrounding the interview, whereas the trial court in
Walker did not).

[*P49] Notwithstanding Thompson's position with an uninvolved
law enforcement agency, this is not a case in which "other evidence"
demonstrates that the social workers acted at the direction or under
the control of law enforcement. Jackson at syllabus. Instead, there
is no evidence here that Thompson or Stamper acted at the direction,
control, or behest of law enforcement. Under these circumstances,
we agree with the trial court's conclusion that they were not agents
of law enforcement so as to warrant Miranda warnings.

[*P50] Because the trial court correctly held that Woods was not
in custody when Thompson interrogated him, it properly rejected
Woods's claim that the state had engaged in the impermissible two-
step interrogation technique prohibited in Seibert, 542 U.S. 600, 124
S.Ct. 2601, 159 L.Ed.2d 643, and Farris, 109 Ohio St.3d 519, 2006-
Ohio-3255, 849 N.E.2d 985. Unlike the defendants in those cases,
Woods had not been arrested or taken into custody by police when
he was initially interrogated.

[*P51] Finally, Woods claims that the trial court's findings
regarding the statements he made to social worker Stamper were
factually inaccurate and not supported by the record. The state does
not deny that the trial court's findings were inaccurate, but argues
that the error was harmless. The trial court erroneously found that
Woods made statements admitting specific instances of sexual abuse
to Stamper; he actually made these statements to Thompson. He
only told Stamper he was not denying her general summary that his
daughter had indicated he was inappropriately touching her.

[*P52] Nevertheless, we agree with the state that this mistake was
harmless because the trial court's suppression ruling was not
dependent on when Woods made more detailed incriminating
statements. The trial court's conclusion that Woods was not
subjected to custodial interrogation when he spoke to Stamper and
Thompson was not dependent on that fact. Therefore, we overrule
Woods's first assignment of error.
3. Right to Remain Silent

[*P53] In his second assignment of error Woods contends because
the deputy failed to scrupulously honor his assertion of his right to
remain silent, the trial court erred when it denied his motion to
suppress his statement to Deputy Sheriff Chaffins. Neither party
disputes that the deputy administered Miranda warnings to Woods
before questioning him and Woods acknowledged that he
understood them. Instead the dispute is about whether Woods
clearly invoked his right to remain silent during the interrogation.

[*P54] "Invocation of the Miranda right to [remain silent]
'requires, at a minimum, some statement that can reasonably be
construed to be an expression of a desire [to cease all questioning].'"
Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129
L.Ed.2d 362 (1994), quoting McNeil v. Wisconsin, 501 U.S. 171,
178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). "If the suspect's
statement is not an unambiguous or unequivocal [invocation of the
right to remain silent], the officers have no obligation to stop
questioning him." Davis, 512 U.S. at 461. "'If an accused makes a
statement concerning the right to [remain silent] 'that is ambiguous
or equivocal' or makes no statement, the police are not required to
end the interrogation, or ask questions to clarify whether the accused
wanted to invoke his or her Miranda rights.'" State v. Lawson, 4th
Dist. Pickaway No. 14CA20, 2015-Ohio-4394, ¶ 19, quoting
Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S.Ct. 2250, 176
L.Ed.2d 1098 (2010).

[*P55] Woods asserts after being Mirandized and acknowledging
his waiver, Deputy Sheriff Chaffins asked him "what's going on."
Although the state's transcript of the statement listed Woods's
response as partly unintelligible, Woods claims he responded that
"he had already provided a statement to Thompson, that he believed
himself to be under arrest, and that he had nothing to say." Thus he
contends questioning should have stopped.

[*P56] Our own review of the audio recording of Woods's
statement to the deputy reveals the following dialogue:

Chaffins: Do you care to talk about what's going on?

Woods: I said everything I needed to say already. I'm under
arrest. I've already said everything. Am I under arrest?

Chaffins: I'm just here to question you. That's it. I don't
know what's going on. All I know is your daughter made
an allegation and children services were trying to clear that
up and then I have been brought into the mix of it. I'm here
to get your side of the story. I haven't talked to your
daughter yet. I talked briefly to children services but not
enough to get the whole story. I just wanted to see what
your, a lot of times it's easier to just cut to the chase and
talk to the person directly.

[*P57] Woods then proceeded to answer additional questions from
the deputy and Thompson.

[*P58] Our review of the recording does not support Woods's claim
that he told the deputy that he "had nothing to say." At best, he
referenced his previous statement to Thompson by indicating that he
had "already said everything." But he tied that answer to a question
about whether he was under arrest.

[*P59] Woods's statement was comparable to a "suspect
expressing a desire not to elaborate on a prior answer because he
had nothing else to say about it," which is not tantamount to
unequivocally invoking the right to remain silent and to terminate
the interview. See, e.g,, State v. Gray, 2017-Ohio-563, 85 N.E.3d
316, ¶ 11 (2d Dist.), and cases cited. Similarly, in State v. Griffith,
11th Dist. Trumbull No. 2001-T-0136, 2003-Ohio-6980, ¶ 34, the
court determined that the defendant did not unambiguously invoke
his right to remain silent by stating, "I'm done," because in the
context of the questioning, it "could have meant that [defendant's]
previous answer was complete and that he had nothing to add to that
answer," but "did not clearly display [his] intention to not answer
subsequent questions."

[*P60] The record does not support Woods's claim that he
unequivocally invoked his right to remain silent during his interview
with Deputy Sheriff Chaffins. The deputy was not required to stop
questioning him or even clarify whether he wished to continue
answering questions. Lawson, 2015-Ohio-4394, at ¶ 33. We
overrule Woods's second assignment of error.

State v. Woods, supra.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.
Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-
94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings. The question before

the habeas corpus court is not whether the application of Supreme Court precedent is correct, but
whether it is unreasonable. In other words, we do not consider the constitutional claims anew, but
only whether the state court applied Supreme Court precedent unreasonably.
In this case the Fourth District Court of Appeals decided on the merits all of the first four
constitutional claims Woods makes in his Petition and he has not shown that the decision is an
objectively unreasonable application of the relevant Supreme Court precedent. Grounds One,
Two, Three, and Four should be dismissed on that basis.

Ground Five: Insufficient Evidence

In his Fifth Ground for Relief, Woods claims his convictions are against the manifest
weight of the evidence and supported by insufficient evidence.
A manifest weight of the evidence claim does not state a federal constitutional claim and
is therefore not cognizable in habeas corpus. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986).
The manifest weight portion of Ground Five should therefore be dismissed for failure to state a
claim upon which habeas corpus relief can be granted.
An allegation that a verdict was entered upon insufficient evidence, on the other hand, does
state a claim under the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970);
Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th
Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the
crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is 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 . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson) This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
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.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
evaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
Most recently in Thompson v. Skipper, 981 F.3d 476 (6th Cir., 2020), the Sixth Circuit held:
“To evaluate a sufficiency-of-the-evidence claim, we 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.’ Smith v. Nagy, 962 F.3d 192, 205

(6th Cir. 2020) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard “must be
applied with explicit reference to the substantive elements of the criminal offense as defined by
state law.” Id. (quoting Jackson, 443 U.S. at 324).”
The Fourth District Court of Appeals decided Woods’ sufficiency of the evidence claim on
the merits, writing:
[*P61] In his third and fourth assignments of error Woods asserts
that his convictions for rape and gross sexual imposition were not
supported by sufficient evidence and were against the manifest
weight of the evidence.

[*P62] "When a court reviews the record for sufficiency, '[t]he
relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a
reasonable doubt.'" State v. Maxwell, 139 Ohio St.3d 12, 9 N.E.3d
930, ¶ 146, 2014-Ohio-1019, quoting State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

[*P63] "A sufficiency assignment of error challenges the legal
adequacy of the state's prima facie case, not its rational
persuasiveness." State v. Koon, 4th Dist. Hocking No. 15CA17,
2016-Ohio-416, ¶ 17. "That limited review does not intrude on the
jury's role 'to resolve conflicts in testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate
facts.'" Musacchio v. United States, U.S. , 136 S.Ct. 709, 715,
193 L.Ed.2d 639 (2016), quoting Jackson, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560.

[Text discussing manifest weight standard omitted.]
[*P66] In his third assignment of error Woods claims that his
convictions for one count of rape and five counts of gross sexual
imposition of a child less than 13 years of age were not supported
by sufficient evidence.

[*P67] Woods was convicted of rape in violation of R.C.
2907.02(A)(1)(b), a felony of the first degree, which states: "[n]o
person shall engage in sexual conduct with another who is not the
spouse of the offender * * * when * * * [t]he other person is less
than thirteen years of age, whether or not the offender knows the age
of the other person." "'Sexual conduct' means vaginal intercourse
between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and, without
privilege to do so, the insertion, however slight, of any part of the
body or any instrument, apparatus, or other object into the vaginal
or anal opening of another. Penetration, however slight, is sufficient
to complete vaginal or anal intercourse." R.C. 2907.01(A).

[*P68] He was also convicted of gross sexual imposition under
R.C. 2907.05(A)(4), which states: "[n]o person shall have sexual
contact with another, not the spouse of the offender * * * when * *
* [t]he other person * * * is less than thirteen years of age, whether
or not the offender knows the age of that person." "'Sexual contact'
means any touching of an erogenous zone of another, including
without limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing or
gratifying either person." R.C. 2907.01(B).

[*P69] Woods argues that because the jury found him not guilty of
the counts that were based upon two fact-specific incidents
involving the kitchen and bedroom mirror, it could not convict him
of the counts based upon more general factual assertions. He
contends "[a]t least some specifics regarding where and when an
alleged assault occurred, and what specific actions occurred that
constitute an offense, are required to prove beyond a reasonable
doubt that [he] is guilty of an offense."

[*P70] However the law is clear that testimony regarding the exact
date and time of an offense is not required in these cases. That is,
"[a]n allowance for reasonableness and inexactitude must be made
for such cases because many child victims are unable to remember
exact dates and times, particularly where the crimes involve a
repeated course of conduct over an extended period of time and the
accused and the victim reside in the same household, which
facilitates the extended period of abuse." See, generally, State v.
Neal, 2016-Ohio-64, 57 N.E.3d 272, ¶ 24 (4th Dist.), citing State v.
Adams, 2014-Ohio-5854, 26 N.E.3d 1283, ¶ 51 (7th Dist.); see also
State v. Wright, 2d Dist. Clark No. 99CA0011, 2000 Ohio App.
LEXIS 2239, 2000 WL 679142, *5 (May 26, 2000) (rejecting
appellant's argument that his convictions for gross sexual imposition
were not supported by sufficient evidence because the child victim
"never provided any specific dates or times when these offenses
occurred"). In these cases, the state need only "establish that the
offense charged occurred within a reasonable time in relation to the
dates fixed in the indictment." Neal at ¶ 24 (stating this precept in
the context of addressing an insufficient-evidence claim); State v.
McIntire, 6th Dist. Huron No. H-13-018, 2015-Ohio-1057, ¶ 42,
citing State v. Dodson, 12th Dist. Butler No. CA2010-08-191, 2011-
Ohio-6222, ¶ 40; see also State v. Green, 4th Dist. Ross No.
04CA2760, 2004-Ohio-5089, ¶ 16 ("the prosecution was not
required to prove the exact date of the offense because the date is
not an element of the offense. However, the prosecution is required
to prove beyond a reasonable doubt that the incident occurred within
the time frame specified in the indictment").

[*P71] This case involved Woods's repeated sexual abuse of his
minor daughter over an extended period of time while they lived in
the same household. The particulars of the crimes were supported
by sufficient evidence. The child victim testified that Woods
touched her breasts more than ten times and touched the inside of
her vagina every time he came into her bedroom before she was 13.
And Woods admitted inappropriate sexual behavior with his
daughter to Stamper, Thompson, and Deputy Sheriff Chaffins. He
also admitted to being sexually aroused when he touched his
daughter's breasts. After viewing this evidence in a light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crimes of rape and gross sexual
imposition of a child less than 13 years of age proven beyond a
reasonable doubt. We overrule Woods's third assignment of error.

State v. Woods, supra.
As can be readily seen, the Fourth District cited the correct standard from Jackson, so its
decision is not “contrary to” clearly established federal law. Woods says nothing about Ground
Five in his Reply. Analyzing the evidence recited by the Fourth District, the victim gave direct
testimony to support the charges.
The Sixth Circuit has long held that the testimony of the victim alone is constitutionally
sufficient to sustain a conviction. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008), citing United
States v. Terry, 362 F.2d 914, 916 (6th Cir. 1966) ("The testimony of the prosecuting witness, if
believed by the jury, is sufficient to support a verdict of guilty."); see also O'Hara v. Brigano, 499
F.3d 492, 500 (6th Cir. 2007) (holding that victim's testimony that habeas petitioner abducted her
and raped her was constitutionally sufficient to sustain conviction despite lack of corroborating

witness or physical evidence); United States v. Howard, 218 F.3d 556, 565 (6th Cir. 2000) (holding
that even if the only evidence was testimony of the victim, that is sufficient to support a conviction,
even absent physical evidence or other corroboration); United States v. Jones, 102 F.3d 804, 807
(6th Cir. 1996) (noting that there is sufficient evidence to support a conviction even if the
"circumstantial evidence does not remove every reasonable hypothesis except that of guilt")
(internal quotation marks omitted).
The fact that the jury acquitted Woods on some of the charges where the specifics of the
witness’s testimony were more detailed does not undermine the verdict on the remaining counts.
The jury might have doubted her ability to remember very specific details, but credited her

testimony as to patterns of abuse.
The Fourth District’s decision on the merits of this claim are not an objectively
unreasonable application of Jackson and is therefore entitled to deference. On that basis, Ground
Five should be dismissed.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.

February 23, 2021.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10377335. Public record. Not legal advice.