The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
TARANPREET SINGH,
Petitioner, : Case No. 1:24-cv-156
-vs - District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz
WARDEN, Noble Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case was brought by Petitioner Taranpreet Singh pursuant to 28 U.S.C.
§ 2254 with the assistance of counsel to obtain relief from his convictions for rape, kidnapping,
and assault in the Common Pleas Court of Butler County, Ohio (Petition, ECF No. 1). On the
Order of Magistrate Judge Caroline H. Gentry, Respondent has filed the State Court Record (ECF
No. 4) and a Return of Writ (ECF No. 5). Petitioner has also filed a timely Traverse (ECF No. 9),
rendering the case ripe for decision. The Magistrate Judge reference in the case was recently
transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF
No. 10).
Litigation History
On February 25, 2021, the Butler County grand jury indicted Singh on three counts of rape
in violation of Ohio Rev. Code § 2907.02(A)(2) (counts 1, 5, and 7), five counts of kidnapping in
violation of Ohio Rev. Code § 2905.01(A)(4) and § 2905.01(A)(3) (counts 2, 3, 6, 8 and 9), and
one count of assault in violation of Ohio Rev. Code § 2903.12(A) (count 4). Counts 7 through 9
contained firearm specifications. (Indictment, State Court Record, ECF No. 4., Ex. 1). A petit jury
found Singh guilty of three offenses relating to the victim identified in the Indictment as Jane: rape
(count one), kidnapping in violation of Ohio Rev. Code § 2905.01(A)(4) (count three), and assault
(count four), but acquitted him on all other charges. Id. at Ex. 7. The trial court sentenced Singh
an indefinite prison term of twelve to sixteen years.
With the assistance of retained counsel, Singh appealed to the Ohio Twelfth District Court
of Appeals raising seven assignments of error (Appellant’s Brief, State Court Record, ECF No. 4,
Ex. 9). That court affirmed the conviction. State v. Singh, 2022-Ohio-3385 (Ohio App. 12th Dist.
Sept. 26, 2022). Singh appealed to the Ohio Supreme Court, but that court declined jurisdiction.
State v. Singh, 168 Ohio St. 3d 1482 (2022).
On March 23, 2024, Singh filed his Petition in this Court, pleading one Ground for Relief:
The State of Ohio failed to produce sufficient evidence to convict
the Petitioner of the counts in the indictment in violation of his right
to due process under the Fifth Amendment made applicable to all
state criminal prosecutions by the Fourteenth Amendment to the
federal Constitution.
(Petition, ECF No. 1, PageID 8).
The State of Ohio raises no affirmative defenses, but asserts the Twelfth District’s decision
that there was sufficient evidence is entitled to deference under 28 U.S.C. § 2254(d)(1).
Petitioner’s Traverse attempts to rebut that finding.
Analysis
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.
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).
Considering the testimony and evidence presented at trial, the Twelfth District found the
following facts had been established:
A. Incident with Jane
{¶4} In the evening hours of September 4, 2019, Jane was walking
from her home in Hamilton, Ohio to a friend's home. A man, later
identified as appellant, driving a black vehicle approached her and
offered to give her a ride. Appellant picked up Jane near a Circle K
convenience store that was located on Pleasant Avenue in the
Lindenwald neighborhood of Hamilton. Appellant then drove into
the Circle K parking lot and ran inside the store to purchase condoms
while Jane waited inside the vehicle.
{¶5} Upon returning to the vehicle, appellant drove Jane to a
different neighborhood in Hamilton, one located on the east side of
the railroad tracks. Appellant stopped in front of an abandoned
building located at 906 East Avenue. Appellant claimed he had lost
his wallet and needed to look for it. He got out of the car and asked
to search Jane's side of the vehicle. However, once Jane got out of
the vehicle, appellant grabbed her by her hair and dragged her into
the abandoned building.
{¶6} Appellant pulled Jane into one of the building's back rooms.
As he was doing so, appellant struck Jane in the head and beat her
“in the front” and “in the back.” Jane attempted to block her face
from the blows by putting up her hands. While she was being struck
by appellant, Jane urinated on herself. Appellant told Jane to stop
screaming or he would continue to beat her. He also told Jane to take
off her clothes and kiss him. Jane took of her clothing and tried to
kiss appellant, but she was too upset. Appellant then raped Jane by
inserting his penis into her vagina. Appellant did not wear a condom
and ejaculated inside her.
{¶7} Once the sexual act was complete, appellant left the building.
Jane got dressed and started walking towards her home, calling her
mother as she exited the abandoned building. Jane did not ask
anyone walking or driving by for help and did not call the police at
that time as she was “in shock of everything” and just wanted her
mother.
{¶8} Jane's mother met up with Jane. She described the physical
state she found Jane in, stating that Jane “had blood and – well, she
was crying, and [had] dirt running down her face. The side of her
head was swollen. Her hair was all messed up. * * * [S]he had
urinated on herself and had dirt all over. She looked pretty bad.”
Jane's mother walked Jane home, where Jane immediately tried to
clean herself. Jane explained she used a douche to try to expel
appellant's sperm.
{¶9} The next day, approximately eight hours after the incident,
Jane called the police to report the rape. Jane was also examined by
SANE nurse Meredith Gregory at the Bethesda Butler Hospital on
this date. Gregory noted that Jane appeared anxious and sad.
Gregory observed an abrasion to Jane's left nostril and left upper lip
and noted that there were “multiple contusions, abrasions, erythema,
which is redness, to [Jane's] back” near her shoulders. Gregory did
not, however, see any bruising or visible injuries to the top of Jane's
head, to her face or forehead, or to her thighs, buttocks, or genitalia.
Gregory also did not find any shards of glass or debris in or on Jane's
person during the examination, despite broken glass having been
scattered throughout the abandoned building.
{¶10} For the rape kit, Gregory collected a DNA standard from Jane
using an oral swab. Jane's perianal area, her labia minora, her labia
majora, and vagina were swabbed for evidence. The underwear and
shirt Jane had worn on the night of the incident were collected as
evidence. The underwear had blood spots on it. Photographs of
Jane's injuries and the clothing she had worn the evening of
September 4, 2019 were admitted into evidence at trial.
{¶11} After her initial report of the sexual assault and her
examination by the SANE nurse, Jane became uncooperative with
the city of Hamilton detective investigating her claims. Jane failed
to appear for two scheduled interviews. It was not until May 27,
2020, more than eight months after initially reporting the rape, that
Jane met with Detective Frank Botts. At this time, Jane told
Detective Botts that she had seen the man who had assaulted her
driving in the area where she lived. Jane had not called law
enforcement when this occurred, but rather had run back inside her
home.
{¶12} A six-man photo lineup was administered to Jane on May 27,
2020. Jane identified another man, “S.S.,” as the perpetrator of the
sexual assault, stating “that kinda looks like him, but has a long hair
[sic] and beard.” Appellant's picture was not included in the lineup
presented to Jane.
{¶13} A DNA sample was obtained from S.S. A DNA sample was
also obtained from appellant, who was developed as a suspect
following an investigation into sexual assaults reported by other
victims. Timothy Augsback, a BCI forensic scientist, tested the
swabs and underwear collected as part of Jane's rape kit against the
DNA samples obtained from S.S. and appellant. Augsback testified
that S.S. was not a contributor to any of the DNA mixtures found in
the samples from Jane's rape kit. However, the perianal swab from
the rape kit had a mixture of appellant's and Jane's DNA, with
appellant being the major contributor. Augsback explained how rare
the match would be in the general population of unrelated
individuals, stating that appellant's “DNA profile in the sperm
fraction was one in 50 million unrelated individuals.” The swab
collected from Jane's labia minora was also tested and found to
contain a mixture of appellant's and Jane's DNA. Augsback testified
that the estimated frequency of the occurrence of appellant's DNA
profile was rarer than one in one trillion unrelated individuals.
Finally, Augsback tested the underwear worn by Jane on the night
of the sexual assault, which was found to contain a mixture of
appellant's and Jane's DNA. According to Augsback, the estimated
frequency of the occurrence of appellant's DNA profile was rarer
than one in one trillion unrelated individuals.
{¶14} At trial, defense counsel questioned Jane about her use of
drugs and possible prostitution on the streets of Hamilton. Jane
admitted she had a 2017 conviction for possession of heroin but
denied she had used drugs on the date she was assaulted by
appellant. Jane also denied that she had ever prostituted herself. She
stated that when appellant offered her a ride on September 4, 2019,
they “never discussed anything about money or any sexual acts at
all.” She also denied knowing Daisy or Marie or making plans with
another women, “N.C.,” to sue appellant following his criminal trial.
* * *
{¶21} Using various businesses’ surveillance footage and
information obtained from Jane, Daisy, and Marie, law enforcement
was able to identify appellant as a suspect. Detective Kiep
conducted a social media search on appellant and discovered images
of appellant at a gun range holding a semi-automatic handgun.
During the execution of a search warrant at appellant's home,
officers discovered a t-shirt that appeared to be a match for the t-
shirt appellant was observed wearing on the Circle K surveillance
footage from September 4, 2019, the date Jane was sexually
assaulted. Officers were unable to locate a handgun in appellant's
home, his vehicle, or his wife's vehicle. However, officers did find
a package for a “Crossman handheld pellet gun,” which displayed
an image of a handgun on it.
{¶22} On February 18, 2021, appellant was arrested and interviewed
by Detective Botts after being Mirandized. The interview was
recorded and a portion of it played for the jury at trial. Appellant
started the interview by claiming he had “never ever” picked up
prostitutes or females who walked the street. However, after being
advised of the rape allegations Jane, Daisy, and Marie had made
against him, appellant changed his story. He told Detective Botts
that there were “two or three times” he had picked up women and
paid them for sex – an activity he claims he engaged in once every
six or seven months. He denied, however, that he raped any of these
women or struck any of them. He also denied forcing any of the
women into his car or using a gun. He claimed that the women he
picked up for sex, including a woman on East Avenue in Hamilton,
were responsible for picking the spots where they engaged in sex.
Appellant was unable to recall the names of the women he paid for
sex. When shown photographs taken from the September 4, 2019
Circle K security footage, appellant admitted the photographs were
of him.
State v. Singh, supra at ¶¶ 3-14, 21-22.
Singh raised his sufficiency of the evidence claim as his third assignment of error on direct
appeal. The Twelfth District considered it along with his fourth assignment of error on the
manifest weight of the evidence1 and wrote:
1 When sufficiency of the evidence and manifest weight of the evidence assignments of error are both raised on direct
appeal, it is common for Ohio appellate courts to decide them together because if a verdict is not against the manifest
weight, a fortiori there is sufficient evidence to convict. Nash v. Eberlin, 258 Fed. Appx. 761, 2007 U.S. App. LEXIS
29645 (6th Cir. Dec. 14, 2007); Ross v. Miller, No. 1:10-cv-1185, 2011 U.S. Dist. LEXIS 65082 (N.D. Ohio May 10,
2011)(White, M.J.); Hughes v. Warden, No. 1:10-cv-091, 2011 U.S. Dist. LEXIS 54131 (S.D. Ohio Apr. 27,
2011)(Merz, M.J.). A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 534
F.2d 1232 (6th Cir. 1986).
{¶55} In his third and fourth assignments of error, appellant
contends his convictions for raping, kidnapping, and assaulting Jane
were not supported by sufficient evidence and were against the
manifest weight of the evidence.
{¶56} Whether the evidence presented at trial is legally sufficient to
sustain a verdict is a question of law. State v. Thompkins, 78 Ohio
St.3d 380, 386 (1997); State v. Grinstead, 194 Ohio App.3d 755,
2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency
of the evidence underlying a criminal conviction, an appellate court
examines the evidence in order to determine whether such evidence,
if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette
No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, “[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. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus.
{¶57} On the other hand, a manifest weight of the evidence
challenge examines the “inclination of the greater amount of
credible evidence, offered at a trial, to support one side of the issue
rather than the other.” State v. Barnett, 12th Dist. Butler No.
CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a
conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of the
witnesses, and determine whether in resolving the conflicts in the
evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. State v. Graham, 12th Dist. Warren No.
CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the evidence,
an appellate court must be mindful that the jury, as the original trier
of fact, was in the best position to judge the credibility of witnesses
and determine the weight to be given to the evidence. State v.
Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th
Dist.). An appellate court will overturn a conviction due to the
manifest weight of the evidence “only in the exceptional case in
which the evidence weighs heavily against the conviction.” Id.,
citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Further,
although the legal concepts of sufficiency of the evidence and
weight of the evidence are quantitatively and qualitatively different,
“[a] determination that a conviction is supported by the manifest
weight of the evidence will also be dispositive of the issue of
sufficiency.” State v. Jones, 12th Dist. Butler No. CA2012-03-049,
2013-Ohio-150, ¶ 19.
{¶58} Appellant was convicted of rape in violation of R.C.
2907.02(A)(2), which provides that “[n]o person shall engage in
sexual conduct with another when the offender purposely compels
the other person to submit by force or threat of force.” A person acts
purposely “when it is the person's specific intention to cause a
certain result.” R.C. 2901.22(A). “Force” is defined by the Revised
Code as “any violence, compulsion, or constraint physically exerted
by any means or against a person or thing.” R.C. 2901.01(A)(1).
Sexual conduct includes “vaginal intercourse between a male and
female” and “without privilege to do so, the insertion, however
slight, of any part of the body * * * into the vaginal or anal opening
of another.” R.C. 2907.01(A).
{¶59} Appellant was also convicted of kidnapping in violation of
R.C. 2905.01(A)(4), which provides that “[n]o person, by force,
threat, or deception, * * ** shall remove another from the place
where the other person is found or restrain the liberty of the other
person, * * * [t]o engage in sexual activity, as defined in Section
2907.01 of the Revised Code, with the victim against the victim's
will.” Sexual activity means sexual contact or sexual conduct,
including vaginal intercourse. R.C. 2907.01(C).
{¶60} Finally, appellant was convicted of assault in violation of
R.C. 2903.13(A), which provides that “[n]o person shall knowingly
cause or attempt to cause physical harm to another.” Pursuant to
R.C. 2901.22(B), “[a] person acts knowingly, regardless of purpose,
when the person is aware that the person's conduct will probably
cause a certain result or will probably be of a certain nature.” Any
injury, illness, or other physiological impairment, regardless of its
gravity or duration, constitutes “physical harm” to a person. R.C.
2901.01(A)(3).
{¶61} After reviewing the record, weighing inferences and
examining the credibility of the witnesses, we find appellant's
convictions for rape, kidnapping, and assault are supported by
sufficient evidence and are not against the manifest weight of the
evidence. The state presented testimony and evidence from which
the jury could have found all the essential elements of the offenses
proven beyond a reasonable doubt. Jane testified that appellant
picked her up near the Circle K on Pleasant Avenue and drove her
to an abandoned building on East Avenue in Hamilton. Using his
need to search for his missing wallet as a ruse, appellant approached
Jane on the passenger side of the vehicle, grabbed her hair and
forcibly pulled her away from the car and into a back room of the
abandoned building. While forcing Jane into the abandoned
building, appellant assaulted Jane, striking her in the head and
beating her “in the front” and “in the back.” Once inside the back
room, appellant engaged in forcible sexual conduct with Jane,
vaginally raping her with his penis before ejaculating inside of her.
{¶62} Jane was injured during the incident. As the SANE nurse who
examined Jane testified, Jane had an abrasion to her left nostril and
upper lip as well as “multiple contusions, abrasions, erythema,
which is redness, to [her] back” near her shoulders. Forensic
evidence obtained during the SANE nurse's examination was later
tested by a BCI forensic scientist. Appellant's DNA was found on
swabs taken from Jane's perianal area and labia minora and on the
underwear Jane had worn on the night of the sexual assault. Jane's
testimony, evidence gathered during her sexual assault examination,
and the forensic analysis of the rape kit was evidence demonstrating
appellant assaulted, kidnapped, and raped Jane.
{¶63} Appellant challenges Jane's credibility and the weight given
to her testimony. Appellant, who had admitted to picking up
prostitutes in Hamilton, theorizes that Jane was a prostitute and that
she and other prostitutes had developed a scheme to try to extort him
for money or set up a civil suit for damages. Appellant contends the
fact that Marie knew of a prostitute storing his semen in her freezer
demonstrated prostitutes in Hamilton were acting with nefarious
intentions. Appellant contends Jane lied when she denied being a
prostitute, lied about not knowing Marie or Daisy, and lied about not
making plans with them or anyone else to sue appellant following
the criminal trial. To support his claim that Jane was not a credible
witness, appellant relies on the fact that Jane has a prior felony
conviction for possession of heroin and the fact that she gave
inconsistent stories about where appellant had picked her up on the
night of the rape. When Jane originally gave a statement to officers,
she had claimed that appellant had offered her a ride and picked her
up at Circle K. However, after surveillance footage from the store
showed her arriving at the store in appellant's car, Jane later changed
her story and stated appellant picked her up “near” Circle K.
{¶64} Appellant further contends Jane's appearance and lack of
serious physical injuries in the aftermath of the alleged rape, assault,
and kidnapping also cast doubt on the credibility of her testimony.
Appellant argues that if the events described by Jane had actually
occurred, then one would have expected the SANE nurse to have
observed more injuries to Jane's scalp and face, such as missing hair,
bruises, or scratches, as well as visible injuries to her back, thighs,
or vagina, including bruises and cuts from broken glass that was
spread out in the abandoned building. Appellant contends that one
would have also expected to find blood on more than Jane's
underwear. Appellant noted that Jane's shirt, though dirty, did not
have any blood on it.
{¶65} Appellant also contends that Jane's behavior during the
kidnapping and sexual assault and her actions after the incident also
cast doubt on the credibility of her story. Appellant notes that Jane
admitted that she did not fight back or try to escape from appellant
during the sexual assault, and once appellant finished and left her
alone in the empty building, she did not immediately call police.
Instead, Jane got dressed, started walking home, and called her
mother. She did not try to flag anyone walking or driving by for
help. Jane then waited approximately eight hours to report the sexual
assault to the police. After her initial report, Jane became
uncooperative with the police, failing to appear for scheduled
interviews. Jane waited until May 2020 to report seeing the man who
raped her driving in the area where she lived.
{¶66} The jury, through defense counsel's cross-examination of the
state's witnesses and closing arguments, was presented with
appellant's theory that Jane lied about the events that occurred on
September 4, 2019. They heard about the inconsistencies in her story
and were given the opportunity to weigh her version and explanation
of events against appellant's version. Jane explained that once
appellant had her in the back room of the abandoned building, she
ceased resisting and screaming for help so that appellant would stop
beating her. She also explained that after the sexual assault, she was
“in shock of everything” and just wanted her mother and the safety
of her home.
{¶67} “[W]hen conflicting evidence is presented at trial, a
conviction is not against the manifest weight of the evidence simply
because the trier of fact believed the prosecution testimony.” State
v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-
6529, ¶ 17. This is because, “[a]s the trier of fact in [the] case, the
jury was in the best position to judge the credibility of witnesses and
the weight to be given to the evidence.” State v. Johnson, 12th Dist.
Warren Nos. CA2019-07-076 and CA2019-08-080, 2020-Ohio-
3501, ¶ 24. The jury considers any inconsistencies in the witnesses’
testimony and resolves them accordingly, believing all, part, or none
of each witnesses’ testimony. State v. Enoch, 12th Dist. Butler No.
CA2019-07-117, 2020-Ohio-3406, ¶ 27. Here, the jury clearly
found Jane's testimony, which was corroborated by the visible
injuries she sustained and the DNA evidence obtained from the rape
kit, credible.
{¶68} Given the evidence presented at trial, the jury was entitled to
find beyond a reasonable doubt that appellant committed assault,
kidnapping, and rape against Jane. Appellant's convictions are
supported by sufficient evidence and are not against the manifest
weight of the evidence. The jury did not lose its way and create such
a manifest manifest miscarriage of justice that appellant's
convictions must be reversed and a new trial ordered. Appellant's
third and fourth assignment of error are overruled.
State v. Singh, 2022-Ohio-3385, ¶¶ 55-68.
The Twelfth District acknowledged the efforts made at trial to undermine Jane’s credibility,
but held that the jury was entitled to believe Jane and that Jane had testified to sufficient facts to
convict Petitioner of rape, kidnapping, and assault.
In his Traverse Petitioner acknowledges that a federal habeas court “cannot second-guess
credibility issues while reviewing the state’s treatment of a constitutional claim” but then asserts
[i]t can, however, review the evidence presented by the state of Ohio and determine sufficiency.
(ECF No. 9, PageID 1251). To the extent this assertion claims we can review the evidence de
novo, it is in error. Because the Twelfth District decided the sufficiency claim on the merits, our
review must be deferential. We can only grant the writ if the Twelfth District’s decision is an
unreasonable application of clearly established Supreme Court precedent, in this case Jackson v.
Virginia, 28 U.S.C. § 2254(d)1). The Twelfth District’s decision evinces the incorporation of the
Jackson standard in Ohio law and reasonably determines that the State provided sufficient
evidence to the jury to satisfy the Jackson standard.
Deference to the Twelfth District’s decision is also required unless the decision is “based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding[s].” 28 U.S.C. § 2254(d)(2). In attempting to refute the Twelfth District’s factual
findings, counsel gives a four-page purported summary of the evidence (Traverse, ECF No. 9,
PageID 1251-54). This portion of the Traverse contains not a single reference to the record, despite
Judge Gentry’s provision in the Order for Answer that “[a]ll papers filed in the case by either party
[after the State Court Record is filed] shall include record references to the PageID number.” The
State Court Record as filed contains a full transcript of all four days of the trial, a total of 954
pages, so it was readily available to counsel even if Petitioner did not retain a copy acquired for
direct appeal. Petitioner’s counsel took nearly 100 days to file the Traverse, but still provided no
record references.
The purpose of requiring record citations is, one hopes, obvious. With record references
the Court can easily see whether a witness actually said what counsel argues he or she said.
Without such references the job of combing the record to search for support for statements of fact
is cast back upon the Court. That is counsel’s job, not the Court’s. The Court should not consider
as true any assertion of fact about trial testimony that is not supported by a record reference.
Considering only the DNA evidence, it proves beyond a reasonable doubt that Petitioner
was the male who had sexual contact with Jane on the relevant date. The forensic expert testified
that the probability that the sperm recovered from Jane’s body and underwear came from someone
other than Petitioner was less than one in a trillion. The Court takes judicial notice that on the
relevant date there were fewer than one trillion males alive in the world, much less in Hamilton,
Ohio. The physical injuries Jane displayed were completely consistent with the use of force. The
Magistrate Judge does not understand Petitioner to contest the DNA evidence at all.
Petitioner has not shown by clear and convincing evidence that the Twelfth District’s
factual findings are erroneous and they are therefore entitled to deference.
Conclusion
Petitioner’s sole Ground for Relief is without merit. The Magistrate Judge therefore
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.
April 16, 2025.
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. 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. #
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