The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
STEVEN FARTHING,
Petitioner, : Case No. 2:23-cv-1865
- vs - District Judge Michael H. Watson
Magistrate Judge Michael R. Merz
JAY FORSHEY, WARDEN, Noble
Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS; DECISION AND ORDER
ON MOTION TO EXPAND THE RECORD
This is a habeas corpus case under 28 U.S.C. § 2254, brought pro se by Petitioner Steven
Farthing to obtain relief from his conviction in the Fairfield County Court of Common Pleas for
rape, gross sexual imposition, and corrupting another with drugs (Petition, ECF No. 4, PageID 13).
The case is ripe for decision on the Petition, the State Court Record (ECF No. 9), the Return of
Writ (ECF No. 10), and Petitioner’s Reply (ECF No. 17). Also ripe for decision are Petitioner’s
Motion to Expand the Record which includes requests for an unredacted record and an evidentiary
hearing (ECF No. 15).
The Magistrate Judge reference in this case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District (ECF No. 18).
Litigation History
On September 20, 2018, the Fairfield County Grand Jury indicted Petitioner on one count of
rape in violation of Ohio Revised Code § 2907.02 and two counts of gross sexual imposition in
violation of Ohio Revised Code § 2907.05 with the victim identified as A.L.W., a minor. Petitioner
was also indicted on two additional counts of gross sexual imposition and one count of corrupting
another with drugs in violation of Ohio Revised Code § 2925.02 with the victim identified as R.M.W.,
also a minor and A.L.W.’s older sister. State v. Farthing, 2020-Ohio-4936 (Ohio App. 5th Dist. Oct.
14, 2020).
On April 18, 2019, the Fairfield County grand jury returned a superseding indictment charging
Petitioner with one count of rape in violation of Ohio Revised Code § 2907.02(A)(1)(b), 2907.02(B),
two counts of gross sexual imposition in violation of Ohio Revised Code § 2907.05(A)(4),
2907.05(C)(2) (Counts 2-3), and one count of corrupting another with drugs in violation of Ohio
Revised Code § §2925.02(A)(4)(a), 2925.02(C)(3) (Count 4), all with victim R.M.W. (Superseding
Indictment, State Court Record, ECF No. 9, Ex. 4). The case proceeded to jury trial and Petitioner was
found guilty on all counts. Id. at Ex. 14.
Farthing appealed to the Ohio Fifth District Court of Appeals which affirmed in the decision
cited above. The Ohio Supreme Court declined to accept jurisdiction over a subsequent appeal (Entry
of Feb. 16, 2021, State Court Record ECF No. 9, Ex. 25).
On January 11, 2021, Petitioner filed a Petition to Set Aside Conviction under Ohio Revised
Code § 2953.21 (Id. at Ex. 29). The Common Pleas Court denied the Petition (Id. at Ex. 36), the Fifth
District affirmed (Id. at Ex. 46), and the Ohio Supreme Court again declined to exercise jurisdiction
(Id. at Ex. 52).
Farthing then filed his Petition in this Court, pleading the following grounds for relief:
Ground One: Violation of the 5th Amendment Right to Remain
Silent and Not Testify During Trial and it Not Being Used Against
You.
Supporting Facts: Jury was tainted by the fact that Mr. Farthing
did not testify. “One particular juror specifically stated that even
though she understood the Defendant had a Constitutional Right not
to testify at his own trial, that “if (she) was in that position, then
(she) would want to tell her side of the story,” and that maybe he
should have testified; in addition, when she made this statement,
several other jurors nodded in agreement, and another noted that his
failure to testify might have impacted the jury’s consideration of the
facts.” (Motion for Aquital [sic], pg.8, line 3-12).
Ground Two: Mr. Farthings Constitutional Rights of Due Process
under the 5th + 14th Amendments, as well as the Confrontation and
Compulsory Process Clauses of the 6th Amendment were violated
by the exclusion of the evidence of an alternate perpetrator of Rape.
Supporting Facts: Within the record, specifically Transcripts from
pretrial/ motions, beginning page 28, line 17 Sarah McGee of
Franklin County CPS identifies the children’s first alleged perp,
Hassan, the mother’s boyfriend who wasn’t investigated because
they couldn’t locate him. This continues to Page 60. Within the
discovery, Page 4, Jennifer Sherfield of Fairfield County CAC
interviewer acknowledges the existence of a third-party abuse claim
between Roxanne and Aspen, Mr. Farthing’s son. Both of these
instances were unconstitutionally barred by the Rape Shield Law
according to the trial judge over no objections by the defense during
PCR, The Rape Shield Law was constitutionally questioned in the
appeal.
Ground Three: Ineffective Assistance of Trial Counsel.
Supporting Facts: Trial Counsels own Affidavit, attached to PCR
admits he was ineffective and failed Mr. Farthing. He failed to
introduce the exculpatory evidence because he wasn’t allowed to by
the court. He failed to call in experts to testify to the fact that there
was no DNA related to Mr. Farthing. The States DNA expert’s
report says there is no DNA link, but he purjurs [sic] himself on the
stand saying that there is, misleading the jury. Trial Counsel did not
object, nor call him out during cross examination. Both the State and
Mr. Farthing agreed to a polygraph, Defense failed to provide this
due to the money concerns.
Ground Four: Ineffective Assistance of Post Conviction Counsel.
Supporting Facts: Even though PCR counsel argues that a DNA
expert’s review of the data and a polygraph would be beneficial to
help prove Mr. Farthings innocence, he did not arrange for this to
take place and present it to the Judge. This was used against Mr.
Farthing by the Judge as lack of evidence. The Judge incorrectly
stated that the third-party guilt/other perpetrator was “second hand”
when it was mentioned in discovery, and during pretrial motion
hearings and part of the record. This was the fault of PCR Cous. [sic]
Ground Five: Insufficiency of Evidence to Support Conviction.
Supporting Facts: As presented in the Motion for Acquittal, Issue
I. Inconsistent and Insufficient Evidence Presented at Trial---- this
issue was preserved through direct appeal in several arguments. No
DNA, mis-identification, inconsistency of alleged victims [sic]
statement, state did not meet their burden of proof.
(Petition, ECF No. 4, PageID 17, et seq.).
Analysis
Ground One: Jury Misconduct by Infringement on the Privilege Against Self-Incrimination
In his First Ground for Relief, Petitioner claims his Fifth Amendment privilege to remain
silent and not testify against himself was infringed by jury misconduct in that the jury held his
failure to testify against him.
Respondent raises the affirmative defense that this Ground for Relief is procedurally
defaulted (Return, ECF No. 10, PageID 1206). The Warden asserts Petitioner has never presented
his First Ground for Relief to any Ohio court and claims Petitioner has admitted as much (Return,
ECF No. 10, PageID 1209, citing ECF No. 1 [should be 4], PageID 17).
At that place in the Petition, Farthing admits this issue was not raised in the Ohio courts
and he offers as an excuse that his appellate attorney rendered ineffective assistance of counsel.
Ineffective assistance can excuse a procedural default, but the claim of ineffective assistance of
appellate counsel must first be presented to the state courts in the manner prescribed for presenting
such claims. Edwards v. Carpenter, 529 U.S. 446 (2000), In Ohio, claims of ineffective assistance
of appellate counsel must be pleaded in an Application for Reopening the appeal under Ohio R.
App. P. 26(B). State v. Murnahan, 63 Ohio St. 3d 60 (1992). Farthing has filed no such
application.
In his Traverse Petitioner says nothing about presentation of his First Ground to the state
courts and in particular does not discuss ineffective assistance of appellate counsel as a possible
excuse, the excuse he raised in his Petition. Instead he refers to the presentation of this issue in
his Motion for Judgment of Acquittal (ECF No. 17, PageID 1268). He claims his trial attorney
“persuaded and coerced Mr. Farthing into not exercising his right to testify, telling him that the
Jury cannot use this against him and he would be better off if he didn't testify.” Id.
As part of the Motion for Judgment of Acquittal, Petitioner’s trial attorney, Dorian Keith
Baum, wrote:
Finally, when Counsel interviewed the jurors after the verdict had
been rendered, the jurors noted that they considered all parts of the
evidence and testimony, but one particular juror specifically stated
that even though she understood the Defendant had a Constitutional
Right not to testify at his own trial, that "if (she) was in that position,
then (she) would want to tell her side of the story," and that he maybe
should have testified; in addition, when she made this statement,
several other jurors nodded in agreement, and another noted that his
failure to testify might have impacted the jury's consideration of the
facts.
(State Court Record, ECF No. 9, Ex. 12, PageID 120). Mr. Baum had been trial attorney and
presumably is the attorney whom Farthing is accusing of “persuading and coercing” him into not
testifying.
The Magistrate Judge concludes Farthing at least made an initial presentation of this claim in
the Motion for Acquittal which was filed October 4, 2019. The State opposed the Motion, stating in
relevant part:
The State will not get into a battle about what was said or not said,
other than to point out that what defense counsel alleges was said is
absolutely false and intentionally misleading to this Court. The
jurors asked defense counsel specifically, prior to answering any of
his questions, whether their answers could be used to somehow
"overturn the verdict', to which defense counsel answered "No."
However, defense counsel is still attempting to use this information,
unfortunately, it is barred. This information was provided to defense
counsel after the verdict was rendered, which is precisely what the
aliunde rule prohibits. Before dismissing the jury postverdict, the
Court individually polled the jurors on the record, and each juror
affirmed the verdict. Moreover, during voir dire in this case,' all
jurors affirmed that they would not hold it against the defendant if
he chose not to testify. There is no evidence that the defendant's
substantial rights were material [sic] affected.
(Memorandum Contra Motion to Set Aside the Verdict, State Court Record, ECF No. 9, Ex. 13,
PageID 129.) The State Court Record as filed with this Court does not reflect any written decision
by the trial judge on the Motion for Acquittal. The Motion must therefore be deemed denied
because the trial court proceeded to enter the verdict and to sentence Petitioner. Id. at Exs. 14, 15,
and 16. A motion not expressly decided by a trial court when the case is concluded by judgment
is ordinarily presumed to have been overruled. Kostelnik v. Helper, 96 Ohio St. 3d 1, 3 (2002),
citing State ex rel. V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469 (1998); Pentaflex v. Express
Servs., Inc., 130 Ohio App.3d 209, 217 (2d Dist.1998); State v. Harden, 2012-Ohio-1657, ¶ 23
(Ohio App. 2d Dist. 2012).
The jury misconduct issue raised in the Motion for Acquittal was not raised on appeal (See
Defendant-Appellant’s Brief, State Court Record, ECF No. 9, Ex. 18, PageID 142). The
procedural default doctrine in habeas corpus is described by the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 582 U.S. 521, 527 (2017). “[A] federal court may not review federal claims that
were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020), citing
Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v.
Davis, 582 U.S. 521, 527(2017)).
"A claim may become procedurally defaulted in two ways."
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a
claim is procedurally defaulted where state-court remedies have
been exhausted within the meaning of § 2254, but where the last
reasoned state-court judgment declines to reach the merits because
of a petitioner's failure to comply with a state procedural rule. Id.
Second, a claim is procedurally defaulted where the petitioner failed
to exhaust state court remedies, and the remedies are no longer
available at the time the federal petition is filed because of a state
procedural rule. Id.
Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013).
A petitioner can fail to meet procedural requirements in two ways:
First, a petitioner may procedurally default a claim by failing to
comply with state procedural rules in presenting his claim to the
appropriate state court. If, due to the petitioner's failure to comply
with the procedural rule, the state court declines to reach the merits
of the issue, and the state procedural rule is an independent and
adequate grounds for precluding relief, the claim is procedurally
defaulted.
Second, a petitioner may procedurally default a claim by failing to
raise a claim in state court, and pursue that claim through the state's
ordinary appellate review procedures. If, at the time of the federal
habeas petition, state law no longer allows the petitioner to raise the
claim, the claim is procedurally defaulted.
Smith v. Warden, Toledo Corr. Inst., 2019 U.S. App. LEXIS 18196 * 19 (6th Cir. Jun. 18, 2019),
quoting Lundgren v. Mitchell, 440 F.3d 754, 806 (6th Cir. 2006)).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. 478,
485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th
Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985). This
issue was available to be raised on direct appeal based on the Motion for Acquittal, but was not.
As noted above, that failure cannot be excused by ineffective assistance of appellate counsel
because that claim has also been procedurally defaulted because any application to reopen the
appeal to raise that issue would be untimely.
Ground One should be dismissed as procedurally defaulted.
Ground Two: Improper Exclusion of Evidence of Alternate Perpetrator and Invalidity of
Ohio’s Rape Shield Law
In his Second Ground for Relief, Petitioner claims his rights under the Due Process Clause,
the Confrontation Clause, and the Compulsory Process Clause were violated by exclusion of
proffered evidence of an alternate perpetrator in part under the Ohio Rape Shield statute, which he
asserts is unconstitutional.
Respondent asserts the Rape Shield portion of this claim is also procedurally defaulted
because it was not presented to the Ohio courts until appeal from denial of the petition for post-
conviction relief and then abandoned on appeal to the Ohio Supreme Court (Return of Writ, ECF
No. 10, PageID 1209).
Petitioner represented himself on appeal from denial of the post-conviction petition, He
did not set forth separate assignments of error, but the appellate court analyzed the appeal as raising
two claims relevant to this Ground for Relief:
III. EVIDENCE OF SUPPOSED "THIRD~PARTY GUILT"
SHOULD HAVE BEEN ADMITTED.
IV. OHIO'S RAPE SHIELD LAW IS UNCONSTITUTIONAL.
State v. Farthing, Case No. 2022 CA 0002 (Ohio App. 5th Dist. Nov. 23, 2022)(copy at State Court
Record, ECF No. 9, Ex. 46, PageID 383)(“Farthing 2”). The court declined to reach the merits of
this claim because it had not been raised in the trial court. Id. at ¶¶ 39-41, PageID 390.
Respondent asserts this portion of Ground Two is procedurally defaulted. Applying the
Maupin analysis outlined above, the Court finds Ohio does have a relevant rule that an issue must
be raised in the trial court before it can be raised on appeal. The Fifth District applied this rule to
preclude consideration of constitutionality of the Rape Shield Statute. Farthing, supra, at ¶ 40,
citing Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360 (1992). The rule is adequate in that it
protects the appellate function of such courts. There is no indication that the rule is not independent
of federal law which is to say it does not discriminate against federal questions.
Petitioner asserts this claim was raised in his direct appeal, but he provides no citation to
any place in the record where that happened. He also claims it was raised in his post-conviction
petition, but presents no citation to contradict the Fifth District’s express finding that it was not.
He admits he did not appeal this issue to the Ohio Supreme Court, but blames that on the Supreme
Courts’ fifteen-page limit on memoranda in support of jurisdiction. He explains
[N]ot all points of contention could be addressed properly in that
constricted space and Mr. Farthing had to choose his battles. The
Ohio Supreme Court only accepts approximately 5% of the criminal
cases presented to them, the 15 pages given become a marketing
exercise of trying to put something shinny [sic] in front of them to
get their attention and not about justice.
(Traverse, ECF No. 17, PageID 1269). Virtually every appellate court in the United States,
including the Supreme Court, imposes page limits on filings. Petitioner admits this Rape Shield
issue was not important enough for him to include and the page limit is an adequate and in
dependent state procedural rule. The Rape Shield portion of Ground Two is procedurally defaulted
and should be dismissed without reaching the merits.
Ground Three: Ineffective Assistance of Trial Counsel
In his Third Ground for Relief, Petitioner asserts his trial attorney provided ineffective
assistance of trial counsel in several ways. Respondent asserts this claim is barred by Ohio’s res
judicata doctrine in that the claim could have been but was not asserted on direct appeal (Return
of Writ, ECF No. 10, PageID 1210).
The Fifth District Court of Appeals construed this claim as Petitioner’s First Assignment
of Error: I. Appellant's trial counsel was ineffective in failing to proffer an independent DNA
expert and polygraph evidence. Farthing 2, at ¶ 15. The appellate court then found this claim was
barred by res judicata:
¶ 28. Upon review, we too find Appellant's challenges to his
convictions are barred by res judicata. We find Appellant's motion
is an attempt to relitigate issues this Court has previously considered
and denied.
¶ 29. Appellant herein argues that his trial counsel was ineffective
in failing to allow him the opportunity to participate in a polygraph
examination or to pursue independent DNA analysis.
¶ 30. Appellant could have raised these matters on direct appeal.
Further, Appellant has failed to show a substantial violation of any
duty by his trial counsel or how the absence of a polygraph
examination was prejudicial to Appellant's defense
¶ 31. Appellant's first assignment of error is overruled.
Farthing 2, PageID 388.
Petitioner argues that he has supported his post-conviction ineffective assistance of trial
counsel claim with evidence outside the record that was not before the Fifth District on direct
appeal, to wit, the Affidavit of his trial attorney, Dorian Keith Baum, attached to his Post-
Conviction Petition (State Court Record, ECF No. 9, Ex. 34, PageID 287).
A § 2953.21 petition may be brought to raise constitutional questions which depend on
material outside the record on direct appeal. State v. Milanovich, 42 Ohio St. 2d 46 (1975); Saylor
v. Overberg, 608 F.2d 670 (6th Cir. 1979); State v. Gibson, 69 Ohio App. 2d 91 (Cuyahoga Cty.
1980). However, the Ohio courts will not consider on a § 2953.21 petition any claim which could
have been raised on direct appeal; such claims are barred by the state doctrine of res judicata.
State v. Perry, 10 Ohio St. 2d 175, 181 (1967); Keener v. Ridenour, 594 F.2d 581 (6th Cir. 1979);
State v. Cole, 2 Ohio St. 3d 112 (1982). A habeas petitioner cannot avoid res judicata by
presenting some evidence outside the direct appeal record; he or she must show that the issue could
not have been raised and determined on the original appeal record.
There was no evidence of an independent DNA analysis or polygraph examination in the
direct appeal record because they did not happen. In a sense, the ineffective assistance of trial
counsel claim could have been presented on direct appeal by pointing to that absence. However,
both the trial court and the court of appeals relied upon a more fundamental flaw in Petitioner’s
ineffective assistance of trial counsel claim, to wit, the evidence outside the record that Petitioner
presented did not support a claim of ineffective assistance of trial counsel.
When the Baum Affidavit is examined, it completely undercuts any claim of ineffective
assistance of trial counsel. He admits recommending against a polygraph examination because of
substantial doubts in the scientific and legal communities about the reliability of that method.
While Ohio courts will admit the results of a polygraph examination that has been stipulated to by
the prosecutor, a defendant is bound by his stipulation and the results will be admitted even if they
are unfavorable. As to an independent DNA analysis, as Attorney Baum points out, it would have
had slight probative value because the State’s DNA expert did not testify to any DNA evidence
linking Petitioner to the offense. Because the Baum Affidavit was dehors the record but not
supportive of Petitioner’s claims, res judicata applied to the earlier decision.
The Sixth Circuit has repeatedly upheld Ohio’s res judicata doctrine as an adequate and
independent ground of state court decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007);
Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001);
Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir.
1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001). The
Ohio courts have consistently enforced the rule. State v. Cole, 2 Ohio St. 3d 112 (1982); State v.
Ishmail, 67 Ohio St. 2d 16 (1981).
“[P]resentation of competent, relevant, and material evidence dehors the record may defeat
the application of res judicata.” State v. Lawson, 103 Ohio App. 3d 307 (12th Dist. 1995). But
here the Ohio courts correctly held that the Baum Affidavit did not defeat res judicata. Petitioner’s
Third Ground for Relief should be dismissed as procedurally defaulted.
Ground Two: Improper Exclusion of Evidence of a Different Perpetrator
In addition to his defaulted Rape Shield argument, Petitioner asserts other evidence of a
possible other perpetrator – either the victim’s mother’s boyfriend or the Petitioner’s son – was
unconstitutionally excluded. Deciding this claim, the Fifth District wrote:
[*P9] In his first assignment of error, appellant claims the trial court
erred by excluding evidence of an alternate perpetrator of the rape.
We disagree.
[*P10] On March 22, 2019, appellant filed a motion in limine to
permit admission of sexual abuse allegations involving the mother's
boyfriend, H.J., and appellant's minor son, A.F. In support, appellant
cited the rape shield law, R.C. 2907.02(D), which states in pertinent
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 unless it involves
evidence of the origin of semen, pregnancy, or disease, or
the victim's past sexual activity with the offender, and only
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.
[*P11] Appellant acknowledged the statute is intended to prohibit
the admission of prior sexual conduct of victims, but argued the
aforementioned evidence was "highly relevant and appropriate to
establish other possible alleged perpetrators and establish a cohesive
narrative surrounding the alleged events in the present case." The
evidence would be introduced "to demonstrate the inconsistencies
and incoherence of the alleged victims' respective stories."
[*P12] Also in support, appellant cited to specific portions of an
October 2018 interview by Nationwide Children's Hospital, Child
Advocacy Center, of R.M.W.'s sister, A.L.W., wherein she alleged
that H.J. had sexually assaulted her. The two children also related
incidents of physical abuse between their mother and H.J. Appellant
also cited to statements made by appellant and/or his wife that A.F.
sexually assaulted R.M.W.
[*P13] Appellant argued if the evidence was inadmissible under the
rape shield statute, it should be admitted with regard to the gross
sexual imposition counts, and the trial court must admit the evidence
of prior sexual conduct under Evid.R. 404(B) which states:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident. In criminal cases, the proponent of
evidence to be offered under this rule shall provide
reasonable notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce
at trial.
[*P14] A hearing on all pretrial motions was held on August 26,
2019. The hearing consisted of an in camera interview of R.M.W. to
determine her competency given her young age, the voir dire
examination of Sarah McGee, a child welfare intake caseworker
with Franklin County Children Services seeking to quash a
subpoena, and argument on the motion in limine. The trial court
found R.M.W. competent to testify at trial. August 26, 2019 T. at
22. Ms. McGee testified to conducting an investigation in October
2018 on three separate intakes for sexual abuse, physical abuse, and
emotional maltreatment regarding R.M.W. and her sister. Id. at 25,
28. This investigation was for new and different allegations than
those substantiated in the Fairfield County investigation. Id. at 46-
48, 50-52. Ms. McGee stated the Franklin County agency spoke
with appellant and his wife, the children, and the children's mother,
but did not speak with mother's boyfriend, H.J. as he could not be
located or contacted. Id. at 28, 42. At the conclusion of her
investigation, Ms. McGee determined any Franklin County
allegations related to sexual abuse of the children by anyone were
unsubstantiated. Id. at 42. Although an allegation of sexual abuse
had been made by A.L.W. involving H.J., she recanted her
disclosure. Id. at 49-50, 57. Therefore, the sexual abuse by H.J. was
unsubstantiated. Id. at 50. Ms. McGee's intake regarding oral sex
and appellant involved A.L.W., not R.M.W. Id. at 54, 59-60.
Defense counsel agreed anything involving A.L.W. was not
admissible, including her interviews with the Child Advocacy
Center. Id. at 69-70, 78. It was A.L.W. who mentioned H.J. and then
recanted. As for any evidence of sexual abuse by A.F., the trial court
concluded the issue would be one of foundation as a lay witness
could not offer opinion testimony without some significant
foundation so as not to confuse the issue and mislead the jury. Id. at
85. The trial court ordered any issues relating to any allegations
involving A.F. could not be inquired into without first conducting a
voir dire of the witness to make sure the "witness would have
sufficient foundation to answer the question and whether there at
that time is any relevancy to it." Id. at 85-86. The trial court directed
counsel to approach the bench during the trial for discussion and
possible voir dire examination of the witness "[o]therwise the Court
is not going to permit any testimony or allegations or argument
concerning other sexual acts by other individuals." T. at 86. The trial
court journalized its decision in an entry filed September 10, 2019,
wherein it issued an in limine order directing defense counsel "is not
permitted to inquire about any" allegations by A.L.W. against H.J.
as they are not relevant to the claims by R.M.W. against appellant.
[*P15] On September 13, 2019, appellant filed another motion in
limine to permit defense counsel to question the state's witnesses as
to alleged conduct of other alleged perpetrators, to wit: H.J. and AF.
Appellant argued he had a constitutional right to introduce evidence
of third-party guilt.
[*P16] In his appellate brief at 16, appellant argues the trial court
"repeatedly excluded defense attempts to introduce evidence
relating to sexual abuse" by H.J. and A.F., but did not cite to specific
portions of the transcript in support. Appellant argues he was denied
the right to present evidence of third-party guilt, and the rape shield
statute does not explicitly prohibit introduction of prior
nonconsensual sexual conduct or evidence of third-party guilt.
[*P17] On April 22, 2020, the Supreme Court of Ohio filed its
decision in State v. Jeffries, ___ N.E.3d ___, 2020-Ohio-1539,
holding the following at ¶ 30: "We hold that the plain meaning of
the term 'sexual activity' as used in the rape-shield law includes both
consensual and nonconsensual sexual activity and that both are
barred from admission into evidence by the rape-shield law, absent
one of the specific exceptions listed in the law." Appellant's
arguments do not fall under any of the specific exceptions. Given
the holding in Jeffries, appellant's arguments as to the rape shield
statute lack merit.
[*P18] In support of his argument to introduce evidence of third-
party guilt, appellant cites the case of Holmes v. South Carolina, 547
U.S. 319, 326-327, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006),
wherein the United States Supreme Court discussed the use of third-
party guilt evidence as follows:
While the Constitution thus prohibits the exclusion of
defense evidence under rules that serve no legitimate
purpose or that are disproportionate to the ends that they
are asserted to promote, well-established rules of evidence
permit trial judges to exclude evidence if its probative
value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead
the
jury. * * * Plainly referring to rules of this type, we have
stated that the Constitution permits judges "to exclude
evidence that is 'repetitive ..., only marginally relevant' or
poses an undue risk of 'harassment, prejudice, [or]
confusion of the issues.'" * * *
A specific application of this principle is found in rules regulating
the admission of evidence proffered by criminal defendants to show
that someone else committed the crime with which they are charged.
See, e.g., 41 C.J.S., Homicide § 216, pp. 56-58 (1991) ("Evidence
tending to show the commission by another person of the crime
charged may be introduced by accused when it is inconsistent with,
and raises a reasonable doubt of, his own guilt; but frequently
matters offered in evidence for this purpose are so remote and lack
such connection with the crime that they are excluded"); 40A
Am.Jur.2d, Homicide § 286, pp. 136-138 (1999) ("[T]he accused
may introduce any legal evidence tending to prove that another
person may have committed the crime with which the defendant is
charged .... [Such evidence] may be excluded where it does not
sufficiently connect the other person to the crime, as, for example,
where the evidence is speculative or remote, or does not tend to
prove or disprove a material fact in issue at the defendant's trial"
(footnotes omitted). (Citations omitted.)
[*P19] In State v. Walker, 5th Dist. Stark No. 2005-CA-00286,
2006-Ohio-6240, ¶ 46-48, this court quoted this same language from
the Holmes case, and further stated at ¶ 49:
However, "when a defendant wishes to implicate a specific
individual, evidence of the third party's guilt is admissible
only if the defense can produce evidence that 'tend[s] to
directly connect such other person with the actual
commission of the crime charged'". Smithart v. Alaska
(1999), 988 P.2d 583, 586. [Footnotes and citations
omitted].
Accord State v. Benson, 5th Dist. Guernsey No. 19CA00009, 2020-
Ohio-1258.
[*P20] In the case at bar, for the evidence that H.J. or A.F. sexually
abused R.M.W. to be relevant, there must be a connection between
those allegations and the crime charged, thereby casting a
reasonable doubt that appellant was the perpetrator.
[*P21] Allegations of sexual abuse were first reported in April 2018.
R.M.W. never implicated H.J. or A.F. in sexually abusing her. Any
allegations against H.J. were made by A.L.W. and then recanted.
H.J. was not living with the children at the time of the sexual abuse
allegations as the children were living with appellant and his family
from July 2017 through the time of the allegations. Any allegations
of sexual abuse by A.F. were told secondhand by appellant and/or
his wife. August 26, 2019 T. at 79-85.
[*P22] Given the fact that the record is devoid of any evidence
linking R.M.W.'s sexual abuse allegations to H.J. and/or A.F., we
do not find a misapplication of the rules of evidence or a violation
of appellant's constitutional rights.
[*P23] Assignment of Error I is denied.
Farthing 1.
Petitioner asserts this ruling violates his Due Process, Confrontation, and Compulsory
Process rights, apart from his claim that the Rape Shield statute is unconstitutional.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
questions. In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);
Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J. concurring).
A habeas petitioner cannot convert a state evidentiary ruling into a constitutional question
merely by putting a label on its drawn from the words of the Constitution. Petitioner was not
denied the right to confront anyone who accused him of these crimes nor the right to compel the
attendance of witnesses on his behalf. In essence he was denied the right to present evidence of
an alternate perpetrator that the Fifth District found to be not probative on that issue.
In his Traverse, Petitioner claims “In the instant case, the petitioner has presented this court
with new critical evidence in the form of the BCI reports (Lab Case: 18-70624, Agency Case: 18-
03631) proving the States deception.” Petitioner gives no record reference to where that Report
appears, has not obtained court permission to add it to the record, and in any event the Court is
precluded from considering it. Cullen v. Pinholster, 563 U.S. 170 (2011).
The portion of Ground Two complaining of exclusion of evidence on a basis other than the
Rape Shield statute should be dismissed with prejudice on the merits because it does not raised a
federal constitutional issue. See also Bugh v. Mitchell, 329 F.3d 496, 500 (6th Cir. 2003).
Ground Four: Ineffective Assistance of Post-Conviction Counsel
In his Fourth Ground for Relief, Petitioner claims he received ineffective assistance of
counsel from his post-conviction attorney. This claim should be dismissed with prejudice because
it does not state a claim upon which habeas corpus relief can be granted. As noted above, federal
habeas corpus relief is available only for violations of the United States Constitution. But the
Constitution does not guarantee effective assistance in post-conviction proceedings.
The right to appointed counsel extends to the first appeal of right and no further.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). Ineffective
assistance of counsel can excuse procedural default only when it occurs in a proceeding where a
defendant is constitutionally entitled to counsel under the Sixth Amendment. Wainwright v.
Torna, 455 U.S. 586 (1982)(where there is no constitutional right to counsel there can be no
deprivation of effective counsel); Riggins v. Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir.
1997); Barkley v. Konteh, 240 F. Supp. 2d 708, 714 (N.D. Ohio 2002).
Ground Four should be dismissed with prejudice for failure to state a claim upon which
habeas corpus relief can be granted.
Ground Five: Insufficiency of the Evidence
In his Fifth Ground for Relief, Petitioner asserts his conviction is not supported by
sufficient evidence.
An allegation that a verdict was entered upon insufficient evidence states 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).
Petitioner raised this claim on direct appeal and the Fifth District decided it, along with his
claim that his conviction was against the manifest weight of the evidence1, as follows:
¶ 24 In his second and third assignments of error, appellant claims
the jury's verdict was against the sufficiency and manifest weight of
the evidence. We disagree.
¶ 25 On review for sufficiency, a reviewing court is to examine the
evidence at trial to determine whether such evidence, if believed,
would support a conviction. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991). "The 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." Jenks at paragraph two
of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
¶ 26 [Omitted; deals with manifest weight standard.]
1 While insufficiency of the evidence presents a federal constitutional claim, manifest weight does not.
¶ 27 Appellant was convicted of rape in violation of R.C.
2907.02(A)(1 )(b) which states:
(A)(1) No person shall engage in sexual conduct with
another who
is not the spouse of the offender or who is the spouse of the
offender but is living separate and apart from the offender,
when any of the following applies:
(b) The other person is less than thirteen years of age,
whether or
not the offender knows the age of the other person.
¶ 28 Appellant was also convicted of gross sexual imposition in
violation of R.C. 2907.05(A)(4) which states:
(A) No person shall have sexual contact with another, not
the spouse of the offender; cause another, not the
spouse of the offender, to have sexual contact with the
offender; or cause two or more other persons to have
sexual contact when any of the following applies:
(4) The other person, or one of the other persons, is
less than thirteen years of age, whether or not the
offender knows the age of that person.
¶ 29 "Sexual conduct" and "sexual contact" are defined in R.C.
2907.01 (A) and (B), respectively:
(A) "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.
(B) "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.
¶ 30 Lastly, appellant was convicted of corrupting another with
drugs in violation of R.C. 2925.02(A)(4)(a) which states:
(A) No person shall knowingly do any of the following:
(4) By any means, do any of the following:
(a) Furnish or administer a controlled substance to a
juvenile who is at least two years the offender's
junior, when the offender knows the age of the
juvenile or is reckless in that regard.
(b)
¶ 31 Appellant challenges his convictions on the following two
issues: 1) the state failed to appropriately identify appellant as the
perpetrator, and 2) the state failed to prove that the victim was not
the spouse of appellant. Appellant also argues the lack of physical
or corroborating evidence.
¶ 32 R.M.W. was seven years old at the time of trial. T. at 135. She
was asked about knowing someone called "Uncle Steven" and she
testified she knew him as being her uncle. T. at 137.
She was asked to identify Uncle Steven in court. Id. She said his
jacket was gray and pointed. T. at 137. The prosecutor clarified the
fingerpoint
(T. at 137-138):
Q. Can you tell me - - Do you see people - - Where are you pointing
at?
A. In that - -
Q. So that's the defendant's table? Like right here at this table?
A. Uh-uh.
Q. Do you see - - how many people are seated at that table?
A. Three.
Q. Okay. And which one is Uncle Steven? Is he at the last seat, the
middle seat or the seat closest to the door?
A. Um, he is right there.
Q. Is he wearing glasses?
A. Um, no.
MS. ELLISON: Can you have the Defendant please look at the
witness, Your Honor?
UNIDENTIFIED SPEAKER: I'm sorry.
A. He is wearing glasses.
Q. He's wearing glc1sses? Okay.
MS. ELLISON: Your Honor, may the record reflect that the witness
has identified the Defendant as Steven Farthing?
THE COURT: Yes.
¶ 33 Defense counsel objected, arguing R.M.W. "clearly pointed to
the back of the courtroom twice and then she asks if we can have the
Defendant look at her directing her to identify my client." T. at 138.
The prosecutor argued appellant "was looking down hiding his face
the entire time I was asking about identification." Id. The trial court
determined the identification was subject to cross-examination and
was a weight of the evidence issue. T. at 139.
¶ 34 Defense counsel did not cross-exam R.M.W. on the issue of
identification.
¶ 35 Based upon the transcript, we find sufficient evidence of
identification of appellant as the perpetrator.
¶ 36 Regarding appellant's argument that the state failed to prove
that R.M.W. was not his spouse, again, R.M.W. was seven years old
when she testified. T. at 135. She stated appellant was her uncle. T.
at 137, 168. R.M.W.'s mother testified appellant was one of her older
brothers. T. at 60. S.F. testified she was planning on starting divorce
proceedings from appellant which would imply that she and
appellant were married. T. at 445.
¶ 37 Based upon the testimony, we find sufficient evidence was
presented to establish that R.M.W. was not the spouse of appellant.
¶ 38 S.B., the victim's mother and appellant's sister, testified how
R.M.W. and he~ younger child came to be cared for by appellant
and his wife in July 2017. T. at 61-70. In August 2017, appellant's
wife surprised S.B. by formally filing for custody of the children so
R.M.W. could be enrolled in school. T. at 71-74, 105, 107. In April
2018, R.M.W. told S.B. some things that concerned S.B. enough to
call law enforcement and have the child transported to Nationwide
Children's Hospital. T. at 83, 86-90. The children were returned to
S.B.'s custody. T. at 114-115.
¶ 39 R.M.W. testified to living with appellant when she was four
and five. T. at 139. She stated appellant made her touch his private
places with her hands, specifically his "winkie." T. at 144-145. She
then described what happened while she was touching it. T. at 147-
148. She stated he made her touch his winkie again with her
hands and also with her mouth. T. at 149-150. Again, she described
what happened. T. at 151-157. Once, appellant made her smoke
from "a little long thing and there is a little hole in the end and there
ꞏis a big hole, and, um, you put some stuff in it and you light it up
with a lighter." T. at 158. She did not know what was in the big hole,
but her throat felt like fire. T. at 159-160. R.M.W. testified she spoke
to two people at the hospital. T. at 184, 190.
¶ 40 Carolyn Apple, a pediatric sexual assault nurse examiner at
Nationwide Children's Hospital, observed R.M.W.'s interview and
physically examined her. T. at 196-197, 212. R.M.W. "disclosed
that her uncle had her touch his genitals." T. at 213.
¶ 41 Jennifer Sherfield, a forensic interviewer at Nationwide
Children's Hospital, interviewed R.M.W. T. at 222, 224. Portions of
the videotaped interview were played to the jury. T. at 227; State's
Exhibits 2 and 3. R.M.W. related her Uncle Steven wanted help to
go potty, so she held his winkie for him in the bathroom. T. at 234.
It happened one time. Id. Her description of what happened was
nearly identical to her testimony. T. at 235-236, 241, 243-244. She
also explained the smoking incident. T. at 236-238. She stated it
happened twice. T. at 239. She then related how appellant made her
put his hand on his winkie "a long time ago" and that happened in
the living room. T. at 243-244. Appellant told her not to tell her
mommy or anything that goes on in this house or "I would get a
whooping and I would lose my bag of gum." T. at 243. In a second
interview conducted six months later, R.M.W. stated Uncle Steven
"put his winkie in my mouth" and that happened "two - - three
times." T. at 283, 287. Her description of what happened was very
similar to her testimony. T. at 291-293. She also stated she had to
help him go to the bathroom and she had to touch his winkie. T. at
293-296. When asked if somebody else ever made her touch their
private places, R.M.W. said "[n]o, only Uncle Steven." T. at 299.
¶ 42 Kerry Schnirring, a psychology assistant with Lighthouse
Family Center, reviewed R.M.W.'s forensic interviews. T. at 324-
325, 338. She explained very rarely does a child disclose everything
at their first interview. T. at 326. It can take "weeks, months or even
years for a child to feel comfortable enough to tell the whole story."
Id. Ms. Schnirring opined "I was very concerned that this was, in
fact, a trauma of sexual abuse that she experienced." T. at 338-339.
R.M.W. was "very detailed and specific." T. al 339. Ms. Schnirring
concluded (T. al 349):
In my opinion after paying attention to her childlike
language, the
idiosyncratic details that she provided, the number of
details that she
provided, all the context she provided for why she was in
certain rooms at certain times, that suggested to me that she
has, in fact, experienced the trauma of sexual abuse and
that she would probably benefit from specific counseling
to address that.
¶ 43 Ms. Schnirring watched very closely for coaching given "there
was a bit of a custody issue going on," but did not see anything that
she would typically see with a child who had been coached. T. at
351. On cross-examination, Ms. Schnirring agreed some of
R.M.W.'s statements were inconsistent, but "you have to understand
how five-year olds talk and how they jump around." T. at 366.
¶ 44 S.F., appellant's wife, testified for the defense. The children
were dropped off at their home in July 2017. T. at 423. She agreed
to care for the children for a week. T. al 425. After that, she
contacted S.B. to come get the children, but S.B. always had an
excuse. T. at 426. They agreed on a date in August for S.B. to pick
up the children, but S.B. was a no-show. T. at 427. S.F. then decided
to make the situation more permanent so she could enroll R.M.W.
in school, take care of the children medically, and receive financial
assistance. T. at 430. That is when she received emergency custody
of the children in August 2017. T. at 431. After S.B. agreed in April
2018 to supervised visitation with her children, the allegations
against appellant were made. T. at 440-441. At no time did R.M.W.
report any incidents involving appellant to S.F. or exhibit any odd
or alarming behaviors around appellant. T. at 444.
¶ 45 The weight to be given to the evidence and the credibility of
the witnesses are issues for the trier of fact. State v. Jamison, 49
Ohio St.3d 182, 552 N.E.2d 180 (1990). The trier of fact "has the
best opportunity to view the demeanor, attitude, and credibility of
each witness, something that does not translate well on the written
page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d
1159 (1997).
¶ 46 Upon review, given the testimony of R.M.W., Ms. Sherfield,
and Ms. Schnirring, we find sufficient evidence, if believed, to
support the guilty finding, and we do not find any manifest
miscarriage of justice.
¶ 47 Assignments of Error II and Ill are denied.
Farthing 1.
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 (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 Fifth District’s decision is clearly an
objectively reasonable application of the Jackson v. Virginia standard. The jury’s determination
of the facts is also entitled to deference, particularly where Petitioner attempts in his Traverse to
rebut those findings with statement of fact that are not part of the record. Ground Five should be
dismissed with prejudice.
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.
June 6, 2024.
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.
s/ Michael R. Merz
United States Magistrate Judge
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29