# Padilla-Torres v. Warden, London Correctional Institution

> District Court, S.D. Ohio · September 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11154880

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11154880

## How later opinions describe it (automated extraction)

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

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

OMAR E. PADILLA-TORRES,

Petitioner, : Case No. 2:24-cv-4274
- vs - District Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz

WARDEN, London Correctional
Institution,

Respondent. :
REPORT AND RECOMMENDATIONS ON THE MERITS

This habeas corpus case, brought pro se by Petitioner Omar Padilla-Torres under 28 U.S.C.
§ 2254, is before the Court for a report and recommendations on the merits. The relevant filings
are the Petition (ECF No. 1), the State Court Record (ECF No. 6), the Return of Writ (ECF No.
8), and Petitioner’s Reply (ECF No. 12).
Petitioner previously sought leave to amend (ECF No. 10). The undersigned denied leave,
subject to renewal with an attached proposed amended petition which Petitioner said he had
already prepared (ECF No. 18). However, Petitioner has not taken advantage of that offer, so there
is no amended petition before the Court. Petitioner has also objected to the transfer of the
Magistrate Judge reference in this case (ECF No. 20), but on a basis not supported by law so the
case continues to be referred to the undersigned (See ECF No. 21).
Litigation History

On November 8, 2018, a Franklin County Grand Jury returned a thirteen count indictment
charging Petitioner with three counts of rape (two counts pertaining to a child under ten, one count
pertaining to a child under thirteen), one count of attempted rape, six counts of sexual battery, and

three counts of unlawful sexual conduct with a minor, all offenses involving Petitioner's minor
stepdaughter, R.S., within six different timeframes between 2012 and 2018 (Indictment, State
Court Record, ECF No. 6, Ex. 1). A trial jury found Petitioner not guilty on counts one through
four, but guilty of the remaining counts. After merging some of the convictions under Ohio
Revised Code § 2941.25, the trial court sentenced Petitioner to an aggregate sentence of fifty years
to life (State Court Record, ECF No. 6, Ex. 6).
Petitioner appealed to the Ohio Court of Appeals for the Tenth District which affirmed the
conviction. State v. O.E.P-T1, 218 N.E.3d 237, 2023-Ohio-2035 (Ohio App. 10th Dist. Jun. 20,
2023). The Oho Supreme Court declined to exercise jurisdiction over a further appeal. State v.

O.E.P-T, 172 Ohio St.3d 1462, 225 N.E.3d 1021 (Table), 2024-Ohio-163 (Jan. 23, 2024).
Petitioner next filed2 his Petition in this Court, pleading the following claims:
Ground One: The cumulative effect of the State’s failure to provide
certain discoverable evidence resulted in a violation of Mr. Padilla-
Torres [sic] right to due process required by the U.S. and Ohio
Constitutions.

Supporting Facts: There was favorable evidence that was not
provided to the defendant. As the brief relates 2 categories of
suppressed evidence was identified by the Petitioner. These
recordings are favorable and potentially useful to Padilla-Torres.

1 Cited here as it appears in the Northeast Third Reporter. No reason is given in the opinion for not disclosing
Petitioner’s name.
2 Respondent concedes the Petition was filed within one year of the Ohio Supreme Court’s decision and is thus timely
under 28 U.S.C. § 2244(d)(1)(Return, ECF No. 8, PageID 1164).
Ground Two: The Court wrongly denied jury instructions offered
by the Petitioner and failed to properly instruct the jury about
missing evidence violating Appellant’s right to due process and
equal protections as required by the U.S. and Ohio Constitutions.

Supporting Facts: The Petitioner supplied the court with a set of
instructions concerning missing evidence and the failure to disclose
evidence. The trial court failed to give the requested instruction.

Ground Three: The Petitioner was provided the ineffective
assistance of counsel when trial counsel failed to object to 404(b)
evidence and failed to request other acts instruction.

Supporting Facts: Counsel failed to object to the admission of
404(B) evidence. Counsel failed to object to the jury receiving a
child’s statement when that was clearly prohibited. Counsel failed
to request other acts instruction. This left the evidence uncontested.
He also failed to object to the entire National Report Instruction.
[sic]

Ground Four: Petitioner was denied due process and equal
protection of the law when he was convicted and sentenced on
insufficient evidence required by the U.S. and Ohio Constitutions.

Supporting Facts: The jury could not have found each element of
the offenses was proven beyond a reasonable doubt. The most recent
offenses, counts one through four, the petitioner was acquitted. The
Petitioner was then put to the task of disproving the remaining
allegations, not the State prove the allegations. [sic]

Ground Five: Trial court erred to the prejudice of the Appellant by
improperly sentencing him to maximum and consecutive prison
terms.

Supporting Facts: The trial court failed to state the statutory
language on the record or in the entry. No findings were made to
support consecutive sentences.

(Petition, ECF No. 1, PageID 5-11).

In the Return of Writ, Respondent asserts that portion of the Third Ground for Relief
complaining of trial counsel’s failure to object to testimony by a child is procedurally defaulted
(Return, ECF No. 8, PageID 1168). Otherwise Respondent defends on the merits, asserting either
that the Tenth District’s decision is neither contrary to nor an objectively unreasonable application
of clearly established Supreme Court precedent or that a particular claim is not cognizable in
federal habeas corpus. Respondent also asserts Ground One does not plead sufficient facts to
satisfy Rule 2 of the Rules Governing § 2254 Cases (“Habeas Rules”). Id. at PageID 1172, et seq.
In his Reply, Petitioner asserts that this Court’s issuance of an order to answer satisfies the

Rule 2 requirement (Reply, ECF No. 12, PageID 1241-44). He asserts he has not procedurally
defaulted the portion of Ground Three complained of by Respondent. He states “Petitioner was
clearly providing facts that amount to hearsay in order to support the third other acts prong. He
still only contends that his counsel was ineffective for failing to object in the three ways stated in
his ground for relief.” Id. at PageID 1245-46. However, the “three ways” are pleaded in the
“Supporting Facts” for Ground Three, not in the statement of claim itself. This Report will analyze
Ground Three as if it were making three sub-claims of ineffective assistance of trial counsel.
Petitioner’s Reply argues the merits of Ground One. He notes that Respondent’s argument
as to Ground Two is that the claim is not cognizable in habeas (Reply, ECF No. 12, PageID 1256).

He insists, however, on the application of spoliation precedent to this Ground for Relief. Id. at
PageID 1256-61.
As to Ground Three Petitioner argues the general inadmissibility of “other acts” evidence
and of the Nationwide Report (Reply, ECF No. 12, PageID 1263-65). No separate argument is
made as to failure to object to a child’s testimony. As to the insufficiency of evidence claim in
Ground Four, Petitioner asserts the lack of physical evidence and the unreliability of the victim’s
testimony. Id. at PageID 1266-69. As to Ground Five, Petitioner relies on Apprendi v. New Jersey,
530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), as interpreted by the Ohio
Supreme Court in State v. Foster, 109 Ohio St. 3d 1 (2006).
Analysis

General Limitations on Federal Habeas Corpus

Federal habeas corpus courts are limited to considering asserted violations of the United
States Constitution that resulted in a habeas petitioner’s conviction. 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).
As it pertains to this case, the limitations mean this Court cannot consider claims that the
conviction violates the Ohio Constitution or Ohio procedural law (e.g., rules of evidence or
requirements for jury instructions) unless those state court acts also violate the United States
Constitution.

Ground One: Failure to Disclose Exculpatory Evidence

In his First Ground for Relief, Petitioner claims the State failed to produce exculpatory
evidence which it was bound to disclose under Brady v. Maryland, 373 U.S. 83 (1963). The Tenth
District Court of Appeals made the following relevant factual findings on direct appeal:
7. Possible Additional Recordings Not Produced or Provided

{¶ 54} During trial, A.C. testified that she turned over more than six
recordings to CPD, and speculated there may have been at least two
more. (Tr. Vol. II at 337-38.) Detective Haas testified she had no
knowledge of the number or content of the recorded conversations
A.C. gave to CPD because Detective McGuire received and
reviewed the recordings and took over that part of the case. (Tr. Vol.
III at 472-74.) A.C. explained that she only met Detective McGuire
once and R.S. “did most of the communication with him.” (See Tr.
Vol. II at 340.) Although he was under subpoena (May 28, 2021
Subpoena), neither party called Detective McGuire to testify at trial.

{¶ 55} The state and defense counsel both indicated they were
surprised by A.C.’s mid-trial revelation about the existence of more
than six recorded conversations with appellant. (See Tr. Vol. II at
337-38; Tr. Vol. III at 438.) A.C. testified that some of the
recordings were lost when her phone malfunctioned, but she did not
indicate how many. (Tr. Vol. II at 296, 337-38.) She also seemed to
suggest that recordings she did not believe were “usable” were not
preserved or turned over to police. (See Tr. Vol. II at 296.) However,
neither the state nor defense counsel asked A.C. to clarify what she
meant by “usable” or how many of her recorded conversations she
believed were not “usable,” and therefore, not preserved.

{¶ 56} Appellant testified that he repeatedly denied R.S.’s
allegations during conversations with A.C., which he suggested
would be on other recordings not provided or preserved. (See Tr.
Vol. III at 517-19.) He claimed the conversations in the six
recordings played for the jury occurred in late October 2018, after
A.C. had been “hammering [him] about these things” for weeks and
shortly after his brother died. (Tr. Vol. III at 517-19, 528-29.)
Appellant also claimed he made the inculpatory statements
(admissions and failures to deny) on those six recordings in an
attempt to stop A.C.’s repeated questioning. (Tr. Vol. III at 518-21.)
Appellant further alleged he made these inculpatory statements on
one occasion after A.C. threatened to harm herself. (Tr. Vol. III at
518-21.) This threat is not reflected in any of the six recordings
played at trial, however, and A.C. was never questioned about this
claim.

State v. O.E.P-T, supra.
The Tenth District then decided Petitioner’s First Assignment of Error as follows:
¶ 60} In his first assignment of error, appellant argues the state
suppressed evidence—recordings of conversations between A.C.
and appellant—in violation of his constitutional right to due process
and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). (Appellant's Brief at 14-19.) He explains why he believes
additional recordings were withheld, destroyed, or lost and suggests
the trial court erred in admitting the six recordings over defense
counsel's objection under Brady.

1. Controlling Law

{¶ 61} The crux of appellant's arguments begins with Brady,
wherein the Supreme Court of the United States held that due
process requires the prosecution to provide to the defense any
evidence favorable to the accused that is material either to guilt or
punishment. 373 U.S. at 83, 87-88, 83 S.Ct. 1194. See also Smith v.
Cain, 565 U.S. 73, 75, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012) (a
criminal defendant's due process rights are violated when the state
“withholds evidence that is favorable to the defense and material to
the defendant's guilt or punishment”). The Supreme Court
subsequently held that such obligation includes evidence affecting
the credibility of a prosecution witness, including impeachment
evidence. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct.
763, 31 L.Ed.2d 104 (1972). A Brady violation occurs when: (1) the
state suppresses evidence, either willfully or inadvertently; (2) the
evidence is favorable to the defendant as either exculpatory
(material) or impeachment evidence; and (3) prejudice has resulted
to the defendant. State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-
783, 192 N.E.3d 470, ¶ 19, citing Strickler v. Greene, 527 U.S. 263,
281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Prejudice occurs
when there is a reasonable probability that the result of the trial
would have been different had the evidence been disclosed to the
defense. Id., citing Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995), quoting United States v. Bagley, 473
U.S. 667, 678, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

{¶ 62} If a defendant cannot demonstrate that undisclosed or lost
evidence is materially exculpatory, then, to establish a due process
violation, the defendant must demonstrate the police or prosecution
lost, destroyed, or failed to preserve the “potentially useful”
evidence in bad faith. State v. Geeslin, 116 Ohio St.3d 252, 2007-
Ohio-5239, 878 N.E.2d 1, ¶ 10; Arizona v. Youngblood, 488 U.S.
51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). “The term ‘bad
faith’ generally implies something more than bad judgment or
negligence.” (Citations omitted.) State ex rel. Horton v. Kilbane,
167 Ohio St.3d 413, 2022-Ohio-205, 194 N.E.3d 288, ¶ 31. It
“imports a dishonest purpose, moral obliquity, conscious
wrongdoing, breach of a known duty through some ulterior
motive[,] or ill will partaking of the nature of fraud.” (Citations
omitted.) Id. See also State v. Wolf, 154 Ohio App.3d 293, 2003-
Ohio-4885, 797 N.E.2d 109, ¶ 14 (7th Dist.), quoting Hoskins v.
Aetna Life Ins. Co., 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983).
A continuing cavalier attitude toward preservation of evidence with
an abundantly apparent evidentiary value can, under certain facts
and circumstances, amount to “bad faith.” See, e.g., State v.
Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, 837 N.E.2d
1234, ¶ 31-36 (6th Dist.); State v. Benson, 152 Ohio App.3d 495,
2003-Ohio-1944, 788 N.E.2d 693, ¶ 14-15 (1st Dist.).

2. Trial court proceedings related to potentially missing
recordings

{¶ 63} Although trial counsel knew about the six recorded
conversations before trial began, neither the prosecutor nor
appellant's defense counsel knew A.C. would testify she recorded
these conversations at the request of law enforcement. (See, e.g., Tr.
Vol. II at 299; Tr. Vol. III at 438.) After A.C. testified that Detective
Haas asked her to record her conversations with appellant,
appellant's trial counsel moved for either a continuance or a mistrial
pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966). (Tr. Vol. II at 299-302.) These oral motions
were predicated on the argument that such statements were
unconstitutionally obtained by a third-party actor on behalf of the
state because “[n]o Miranda rights were given when these
statements were elicited from [appellant].” (Tr. Vol. II at 300.) Had
such information been known prior to trial, appellant's counsel
argued, the defense would have moved to suppress the recordings
before trial commenced. (Tr. Vol. II at 300.) In denying those
motions, the trial court noted that nothing in the record suggested
appellant's statements to A.C. were obtained while he was “in
custody,” which is necessary for purposes of Miranda. (Tr. Vol. II
at 301.) See, e.g., Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-
5834, 92 N.E.3d 810, ¶ 9-24. Appellant does not challenge that
ruling on appeal.

{¶ 64} After the six recorded conversations were played at trial
(without objection), A.C. testified on cross-examination that,
between August and October 2018, she recorded “probably 100”
conversations with appellant. (Tr. Vol. II at 335-37. See also Tr.
Vol. II at 295-96.) Some of those recordings were lost when her
phone malfunctioned, while others (beyond the six played at trial)
may have been deleted by her, not turned over to police, or provided
to police but not produced in discovery to appellant's counsel.
(See Tr. Vol. II at 337-38; Appellant's Brief at 14-19. See also Tr.
Vol. II at 296.) The record shows that the prosecutor and appellant's
counsel were surprised by A.C.’s mid-trial revelation about the
possible existence of more than six recordings, including potentially
two more recordings she gave to law enforcement. (See Tr. Vol. II
at 337-38; Tr. Vol. III at 438.) Yet, appellant's trial counsel did not
move the trial court for any remedial action—mistrial, continuance,
exclusion of evidence, or otherwise—based on Crim.R.
16 or Brady at that time.

{¶ 65} When the state moved to admit the six recordings as evidence
the day after A.C. testified, appellant's trial counsel objected,
citing Brady. (See Tr. Vol. II at 437-38.) In response, the prosecutor
represented that he had not been made aware of any other possible
recordings until A.C. testified at trial. (Tr. Vol. III at 438.)
Appellant's counsel did not refute this representation; instead, he
requested a jury instruction concerning missing evidence, which is
the subject of appellant's second assignment of error. (Tr. Vol. II at
438.)

{¶ 66} The trial court ultimately admitted the six recordings over
the defense's objection, but suggested that if the defense “end[ed] up
calling the detective or anything like that, that [issue relating to
potentially withheld or destroyed evidence] could be explored as
well.” (Tr. Vol. II at 438-39.)

{¶ 67} During the defense's case-in-chief, appellant's trial counsel
called Detective Haas as a witness. Detective Haas testified that
Detective McGuire handled this portion of the investigation and she
did not review or receive A.C.’s recordings. (Tr. Vol. III at 473-74.)
And although Detective McGuire was subpoenaed for trial (May 28,
2021 Subpoena), neither the state nor defense counsel elected to call
him as a witness.

3. Analysis

{¶ 68} Appellant argues in his first assignment of error that
additional recordings of conversations he had with A.C. existed (at
least at some point) and would have supported his testimony and
weakened the inculpatory value of the six recordings played for the
jury and admitted into evidence at trial.
{¶ 69} Appellant and A.C. both testified about having many in-
person conversations after R.S. reported sexual abuse to police.
(See, e.g., Tr. Vol. III at 500-03, 528; Tr. Vol. II at 293-96.)
Appellant testified that he repeatedly denied R.S.’s allegations
during these conversations. (Tr. Vol. III at 517-22, 528-29, 534-36.)
The recordings played for the jury did not, however,
include adamant or unequivocal denials by appellant.

{¶ 70} During his testimony, Appellant claimed the recordings
played for the jury depicted conversations that took place after A.C.
had “been hammering” him for months about R.S.’s allegations and
suggested what he said in those recordings was what he believed
was necessary for “her to stop.” (Tr. Vol. III at 518-19, 528-29.)
Appellant described A.C. questioning him about R.S.’s allegations
while threatening to harm herself with a razor on one occasion. (Tr.
Vol. III at 520-21.) But that conversation was not among the six
played at trial, and it is unclear precisely what impact he purports
that interaction had on any subsequent conversations. (See Tr. Vol.
III at 520-21.) Appellant also proffered in his trial testimony that,
when the inculpatory recordings were made, he was in a bad mindset
and was desperate to see his children (which A.C. facilitated, on
some occasions when they met). (Tr. Vol. III at 518, 520-22, 532-
36.) At trial, appellant expressly denied engaging in any sexual acts
with R.S., and speculated that his repeated denials of the allegations
during conversations with A.C. would be reflected on the other
possible recordings A.C. may have made. (Tr. Vol. III at 517-21,
522-23, 534-36.)

{¶ 71} Appellant's Brady claim fails, however, at its inception.
Although he speculates about the nature of the conversations that
would have been on other potential recordings that may have, at
some point, existed, it is well-established that mere speculation—
without more—is insufficient to support a
claimed Brady violation. See, e.g., State v. Sullivan, 10th Dist. No.
13AP-861, 2014-Ohio-1260, 2014 WL 1347100, ¶ 20, citing State
v. Moore, 10th Dist. No. 11AP-1116, 2013-Ohio-3365, 2013 WL
3968166, ¶ 43, and State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-
2221, 767 N.E.2d 678, ¶ 60. Everything appellant claims on appeal
about possible recordings of conversations he had with A.C.—from
the number, content, and whether the state knew (or should have
known) about them—is based on speculation.

{¶ 72} A.C. testified she was not sure how many conversations she
recorded, but conjectured “probably 100.” (Tr. Vol. II at 337.) Some
of those recordings, she testified, were lost because her “one phone
burnt up after a few months of recording.” (Tr. Vol. II at 296.)
Nothing in the record indicates, however, precisely (or even
approximately) how many recordings were lost as a result. If
anything, the record suggests most of A.C.’s recordings were lost
due to the malfunctioning of her phone. (See Tr. Vol. II at 337-38.)

{¶ 73} Appellant contends in his brief that “[A.C.] claims she
provided at least two additional recordings to detectives.”
(Appellant's Brief at 17.) But that claim is itself a speculative
extrapolation of her actual testimony, which is set forth, in relevant
part, below:

[DEFENSE:] And of those 100 -- or hundreds of
recordings, you turned over six to the Columbus police,
correct?

[A.C.:] Actually, no, there are more. Like, there were more.
I'm not sure why there's only six here.
* * *

[DEFENSE:] How many more were not turned over?

[A.C.:] There's probably two more that weren't. Well, they
should have been turned over. I don't know why they
weren't.

(Tr. Vol. II at 337.) Based on this testimony, it is not entirely clear
whether A.C. meant there were two additional recordings in her
possession that she did not turn over to police or that she gave two
additional recordings to police that were not played by the state at
trial. The defense did not attempt to clarify her testimony, and
Detective Haas was not able to offer additional information because
Detective McGuire took A.C.’s call and dealt with the recordings.
(Tr. Vol. III at 473-74. See also Tr. Vol. II at 332, 340.)

{¶ 74} Moreover, Detective McGuire was not called to testify at
trial. Thus, there is no testimony in the record from the detective
who received and reviewed the recordings about the number and
content of the recordings that appellant now argues on appeal were
unconstitutionally withheld. And, of note, A.C. was not asked to
describe the conversations she recorded but, for whatever reason,
were not played at trial.

{¶ 75} Without some evidence beyond appellant's hypotheses—that
additional recordings actually existed and contained material
exculpatory evidence—appellant cannot prove the state
violated Brady. As such, we find appellant failed to prove the
recordings at issue would have provided material exculpatory
evidence.

{¶ 76} Because the content of the possible additional recordings is
unknown and only potentially useful, appellant must establish bad
faith on the state's part to succeed with a due process
claim. See Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878
N.E.2d 1 at ¶ 10; Youngblood, 488 U.S. at 57-58, 109 S.Ct. 333. The
evidence appellant argues was unconstitutionally suppressed falls
into three categories: (1) recordings in the possession of law
enforcement that were not given to the defense; (2) recordings lost
due to the malfunction of A.C.’s phone; and (3) recordings A.C. may
have intentionally deleted.

{¶ 77} As to the first category, we reiterate that, as described above,
appellant has not provided compelling proof that any of these
recordings existed or were available to the state. It is true that
the Brady rule “encompasses evidence ‘known only to police
investigators and not to the prosecutor.’ ” Strickler, 527 U.S. at 280-
81, 119 S.Ct. 1936, quoting Kyles, 514 U.S. at 438, 115 S.Ct. 1555.
And, “[i]n order to comply with Brady, therefore, ‘the individual
prosecutor has a duty to learn of any favorable evidence known to
the others acting on the government's behalf * * *, including the
police.’ ” Id., quoting Kyles at 437, 115 S.Ct. 1555. But the record
does not clearly establish that any additional recordings were, in
fact, provided to law enforcement. Further, without evidentiary
support or any legal argument, appellant contends that we should
somehow infer bad faith by either the police or the prosecutor. We
decline to speculate about malfeasance by the state when the defense
did not adequately attempt to develop the record below by, for
instance, calling Detective McGuire as a witness or attempting to
clarify A.C.s testimony on this matter. Accordingly, the arguments
appellant makes with respect to this first category of suppressed
evidence are not well-taken.

{¶ 78} As to the second and third categories of suppressed
evidence—lost or deleted recordings—appellant does not point to
any authority for the proposition that Brady requires the state to
secure and ensure the preservation of evidence not in its possession
from third parties. We recognize A.C. claimed Detective Haas asked
her to start recording her conversations with appellant. (See, e.g., Tr.
Vol. II at 294, 327, 334.) And while Detective Haas had no
recollection of telling A.C. to do this, it is true that Detective Haas
acknowledged “it would not be unusual” for her to endorse a
witness's offer to try to obtain recorded admissions from a suspect
in a case such as this one. (Tr. Vol. III at 466-67.) But we do not
find this evidence sufficiently establishes that A.C. was acting on
behalf of the state when she recorded her conversations with
appellant.

{¶ 79} Because this case involves the potential disposal of evidence
by a third-party who was not acting on behalf of or at the direction
of the state, it is difficult for appellant to connect the destruction of
evidence to bad faith on the part of the state. Nothing in the record
suggests the state was even aware of the recordings lost on A.C.’s
phone or that A.C. may have deleted. “Without state action, the
panoply of constitutional protections generally does not
apply.” State v. Fornshell, 1st Dist. No. C-180267, 2021-Ohio-674,
2019 WL 11816608, ¶ 11, citing Bouquett v. St. Elizabeth Corp., 43
Ohio St.3d 50, 53, 538 N.E.2d 113 (1989) (appellee required to
show state action to “warrant the constitutional protection of due
process”).

{¶ 80} Our determination that A.C. was not a state actor is fatal to
appellant's arguments concerning lost or destroyed evidence. But,
even if she were a state actor, his arguments are without merit. As
to the recordings lost when A.C.’s phone malfunctioned (the second
category), appellant offers no explanation in his brief as to how A.C.
acted in bad faith. Nor do we believe the record suggests she did.
With regard to the third category, appellant contends in his brief that
A.C. “expressly stated she deleted recordings to prevent [appellant]
from gaining access to them.” (Appellant's Brief at 19, citing Tr.
Vol. II at 296.) But he mischaracterizes her testimony. A.C. stated
that she first downloaded the recordings to her daughter's
phone before deleting them from her own phone. (Tr. Vol. II at
296.) A.C. was not asked if she ever intentionally deleted recordings
before such transfer occurred.

{¶ 81} Without a showing that the evidence at issue was materially
exculpatory or that the state acted in bad faith—let alone a showing
of the existence of any suppressed evidence or state action—we
overrule appellant's first assignment of error.

Id.

Respondent asserts Ground One should be dismissed because it is not sufficiently pleaded
to comply with Rule 2 of the Rules Governing § 2254 Cases. Petitioner responds that the Court’s
issuance of an order to answer precludes this defense (Reply, ECF No. 12, PageID 1241, et seq.).
The Court declines to decide as a general matter that issuance of an order to answer precludes a
claim that a Petition does not satisfy Rule 2. In this particular case the Petition and Reply as
supplemented by the state court proceedings has made Ground One sufficiently plain to allow the
Warden to respond. The Petition should not be dismissed on that basis.
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);
Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); 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); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). 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 Tenth District found that A.C. was not a state actor and that finding was “fatal” (supra
at ¶ 80) to Petitioner’s Brady claim. Padilla-Torres has not persuaded the Magistrate Judge that

this was an unreasonable determination of the facts. A.C. undoubtedly had a strong animus against
Petitioner: the victim was her daughter. But that did not make her a state actor. As the Tenth
District also held, even if she had been a state actor, there was no showing she had destroyed
evidence in bad faith, a necessary finding with destroyed evidence. See Arizona v. Youngblood,
488 U.S. 51, 57 (1988).
Petitioner’s Reply argues issues of credibility as to both A.C. and the victim, R.S. But
credibility issues are for the jury to decide. Petitioner also asks the Court to use its “common
sense” to infer that the two recordings A.C. says she turned over to the police3 but which were not

3 It is undisputed that the first either the prosecutor or defense counsel heard about these recordings was during A.C.’s
trial testimony.
produced in discovery are favorable to him. But this claim is as speculative when made in this
Court as it was in the state courts.
The Tenth District decision on Petitioner’s Brady claim is entitled to deference under both
28 U.S.C. § 2254(d)(1) and (d)(2). Ground One should therefore be dismissed with prejudice.

Ground Two: Unconstitutional Jury Instructions

In his Second Ground for Relief, Petitioner asserts the trial judge failed to give jury
instructions about missing evidence which Petitioner requested, in violation of both the Due
Process and Equal Protection Clauses of the Fourteenth Amendment and parallel guarantees in the
Ohio Constitution. For reasons given above, the Court declines to consider the asserted Ohio
constitutional violations.
The Tenth District Court of Appeals considered this claim as Petitioner’s second
assignment of error and decided it as follows:
{¶ 82} In his second assignment of error, appellant contends the trial
court erred when it denied his request for a jury instruction on the
adverse inference a jury is permitted to draw from the recordings the
state may have not provided to defense counsel in discovery. Those
arguments are not well-taken.

1. Controlling Law and Standard of Review

{¶ 83} The purpose of jury instructions is to properly guide the jury
in deciding questions of fact based on the applicable substantive
law. Thus, a trial court must give jury instructions that are relevant
and necessary for the jury to weigh the evidence and discharge its
duty as fact finder. State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d
640 (1990), paragraph two of the syllabus. In fact, in a criminal case,
prejudicial error is found where a court fails to give an instruction
that is pertinent to the case, states the law correctly, and is not
covered by the general charge. State v. Sneed, 63 Ohio St.3d 3, 9,
584 N.E.2d 1160 (1992); State v. Angel, 10th Dist. No. 19AP-771,
2021-Ohio-4322, 2021 WL 5853788, ¶ 67, quoting State v. Joy, 74
Ohio St.3d 178, 181, 657 N.E.2d 503 (1995). Although a trial court
“has broad discretion to decide how to fashion jury instructions,”
such instructions must “present a correct, pertinent statement of the
law that is appropriate to the facts” of the case. State v. White, 142
Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, citing State v.
Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, 24 N.E.3d 1147, ¶
5; State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993).
No purpose is served by giving instructions on law that does not
apply to the facts and circumstances of the case.

{¶ 84} We review a trial court's decision to deny requested jury
instructions for an abuse of discretion. State v. Wolons, 44 Ohio
St.3d 64, 68, 541 N.E.2d 443 (1989); State v. Robinson, 10th Dist.
No. 17AP-853, 2019-Ohio-558, 2019 WL 645023, ¶ 30. An abuse
of discretion occurs when the trial court's decision was
unreasonable, arbitrary, or unconscionable. See, e.g., State v.
Brown, 10th Dist. No. 22AP-38, 2022-Ohio-4073, 2022 WL
16947402, ¶ 19, citing Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). “A court abuses its discretion when a
legal rule entrusts a decision to a judge's discretion and the judge's
exercise of that discretion is outside of the legally permissible range
of choices.” State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699,
172 N.E.3d 75, ¶ 19. An abuse of discretion may also be found
where a trial court “applies the wrong legal standard, misapplies the
correct legal standard, or relies on clearly erroneous findings of
fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-
1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). See also New Asian Super
Mkt. v. Jiahe Weng, 10th Dist. No. 17AP-207, 2018-Ohio-1248, 110
N.E.3d 131, ¶ 16.

2. Analysis

{¶ 85} Appellant timely filed his request for an adverse inference
instruction. (Aug. 5, 2021 Defendant's Proposed Jury Instruction.)
Before closing arguments, his trial counsel presented argument as to
why the requested instruction was warranted. (Tr. Vol. III at 539-
43.) After closing arguments, the trial court formally denied the
requested instruction. (Tr. Vol. IV at 593.) Appellant's trial counsel
then objected to that decision on the record. (Tr. Vol. IV at 593.)

{¶ 86} An adverse inference may arise where a party who has
control of the evidence in question fails, without satisfactory
explanation, to provide the evidence to another
party. See, e.g., Poseidon Environmental Servs., Inc. v. Nu Way
Indus. Waste Mgt., LLC, 7th Dist. No. 16 MA 0083, 2017-Ohio-
9407, 102 N.E.3d 1145, ¶ 18, citing Vidovic v. Hoynes, 11th Dist.
No. 2014-L-054, 2015-Ohio-712, 29 N.E.3d 338, ¶ 78,
citing Schwaller v. Maguire, 1st Dist. No. C-02055, 2003-Ohio-
6917, 2003 WL 22976339, ¶ 24. In that situation, a jury is permitted
to draw an inference that would be unfavorable to the party who has
failed to produce the evidence in question. See id. Before giving
such instruction to a jury, however, Ohio courts typically require a
strong showing of malfeasance—or, at least, gross neglect. See id.

{¶ 87} As the state notes, the adverse inference instruction is
generally applied in civil cases. (See Appellee's Brief at 14-15.) And
this makes sense because parties in civil cases have equal discovery
burdens and fewer constitutional protections than criminal
defendants. In arguing this instruction should be extended to
criminal cases, appellant cites as support a single case from another
appellate district: State v. Blankenship, 9th Dist. No. 2815, 1994 WL
510464 (Sept. 21, 1994). (Appellant's Brief at 23.)

{¶ 88} In Blankenship, the Ninth District Court of Appeals affirmed
the trial court's refusal to give a similar instruction in a criminal
case. Id. at *11-12. The defendant requested the adverse inference
instruction because the state had physical evidence in its custody
(ski mask and duffle bag) that it did not present to the
jury. Id. During closing arguments, defense counsel was permitted
to imply that such evidence would have been damaging to the state's
case had it been presented. Id. But, the trial court refused to
specifically instruct the jury that defense counsel's implication was
appropriate. Id. at *12. Reviewing that refusal,
the Blankenship court noted that defense counsel's closing
arguments “were not evidence that could be considered by the jury”
and “[t]here was no need for a specific instruction informing the jury
that defendant's counsel's argument was not inappropriate.” Id. at
*13.

{¶ 89} Appellant contends that because the Ninth District did not
expressly find such instruction to be wholly improper in criminal
cases, the trial court erred in refusing to give that instruction in this
case. This argument is not well-taken. The Blankenship court did
not rule upon whether the adverse inference instruction applies in
criminal cases because it found the requested instruction was not
necessary under the facts and circumstances of that case. The court's
silence on the applicability of this instruction to criminal cases does
not, however, equate to an endorsement of such application.

{¶ 90} But beyond the failure to provide legal authority in support
of this claim, and assuming an adverse inference instruction could
be appropriate in criminal cases, we do not believe appellant
adequately established the factual predicate to warrant such
instruction anyway. The record does not establish that recordings
beyond the six played for the jury were ever in the state's control.
Indeed, appellant's trial counsel never claimed the prosecutor had
additional recordings that simply were not turned over to the
defense. (Tr. Vol. II at 299.) And, the prosecutor denied on the
record that he did. (Tr. Vol. III at 438.) At most, the record suggests
additional recordings might have been lost or deleted by A.C., or
provided to a detective (who was not called to testify at trial) but not
given to the prosecutor. Setting aside appellant's failure to
adequately establish whether such evidence existed, appellant is
unable to make a showing of malfeasance or gross neglect on the
part of the prosecutor to warrant this instruction. Accordingly, we
expressly decline to opine on whether an adverse inference
instruction could be appropriate in a criminal case because we find
it would not be factually warranted here.

{¶ 91} For the foregoing reasons, we find the trial court did not
abuse its discretion when it refused to give appellant's proposed jury
instruction. Accordingly, we overrule his second assignment of
error.

State v. O.E.P-T, supra.
A claim that a state trial court abused its discretion is not reviewable in habeas corpus.
Abuse of discretion is not a denial of due process. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
However, as the Magistrate Judge reads the Petition, Padilla-Torres is not claiming an abuse of
discretion in refusing to give the proposed jury instruction, but a flat-out denial of a constitutional
right.
However, Petitioner has presented no Supreme Court precedent finding a constitutional
violation in failure to give a jury instruction. Every element of a crime must be submitted to the
jury and decided by them; a court cannot take an issue from the jury by deciding the issue itself or
by use of a mandatory presumption. Sandstrom v. Montana, 442 U.S. 510 (1979); Carella v.
California, 491 U.S. 263 (1989); United States v. Gaudin, 515 U.S. 506 (1995). But the
instructions given here in no way withdraw an element from the jury.
To show that jury instructions are contrary to federal law is “not easy because ‘instructional
errors of state law generally may not form the basis for federal habeas relief.’” Keahey v. Marquis,
978 F.3d 474 (6th Cir. 2020), citing Gilmore v. Taylor, 508 U.S. 333, 344 (1993). To prevail, a
habeas petitioner “must show that such a botched interpretation violated clearly established United
States Supreme Court decisions. And even then, he still must show that the mistake violated

concrete Supreme Court holdings,” Id. citing Marshall v. Rodgers, 569 U.S. 58, 61 (2013), not
generalized principles, citing Woods v. Donald, 575 U.S. 312, 318 (2015). In order for habeas
relief to be warranted on the basis of incorrect jury instructions, a petitioner must show more than
that the instructions are undesirable, erroneous, or universally condemned; taken as a whole they
must be so infirm that they rendered the entire trial fundamentally unfair. Waddinngton v.
Sarausad, 555 U.S. 179, 192-94 (2009); Henderson v. Kibbe, 431 U.S. 145 (1977). The only
question for a habeas court to consider is "whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62
(1991), quoting Cupp v. Naughten, 414 U.S. 141 (1973). The category of infractions that violate
fundamental fairness is very narrow. Levingston v. Warden, 891 F.3d 251 (6th Cir. 2018); Byrd v.

Collins, 209 F.3d 486 (6th Cir. 2000), citing Dowling v. United States, 493 U.S. 342, 352 (1990),
Keahey v. Marquis, 978 F.3d 474, 478 (6th Cir. 2020).
Petitioner has not shown that the Tenth District’s ruling on his jury instruction claim is
contrary to or an objectively unreasonable application of the relevant Supreme Court precedent.
Ground Two, therefore, should be dismissed on 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 three ways: (1) failure to object to “other acts” evidence, (2) failure
to request an “other acts” jury instruction and (3) failure to object to the Nationwide CAC report

(Reply, ECF No. 12, PageID 1262).
As restated in the Reply, Ground Three does not contain a claim of ineffective assistance
of trial counsel for failure to object to testimony by a child. This is the sub-claim to which
Respondent raised a procedural default defense. Because Petitioner has effectively abandoned this
sub-claim, it will not be discussed further.
Petitioner raised ineffective assistance of trial counsel, cumulatively considered, as his
third assignment of error on direct appeal. The Tenth District decided it as follows:
{¶ 145} In his third assignment of error, appellant argues he
received ineffective assistance of counsel. Those arguments are not
well-taken.

1. Controlling Law and Standard of Review
{¶ 146} A defendant asserting a claim of ineffective assistance of
counsel must establish: (1) counsel's performance was deficient or
objectively unreasonable, as determined by “ ‘prevailing
professional norms’ ” and (2) that the deficient performance of
counsel prejudiced the defendant. State v. Spaulding, 151 Ohio
St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 77, quoting Strickland
v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984).

{¶ 147} To show that trial counsel's performance was deficient or
unreasonable, the defendant must overcome the presumption that
counsel provided competent representation and must show counsel's
actions were not trial strategies prompted by reasonable professional
judgment. Strickland at 689, 104 S.Ct. 2052. Counsel is entitled to
a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d
673, 675, 693 N.E.2d 267 (1998). Tactical or strategic decisions,
even if unsuccessful, do not generally constitute ineffective
assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255, 574
N.E.2d 483 (1991). Rather, the errors complained of must amount
to a substantial violation of counsel's essential duties to his
client. See State v. Bradley, 42 Ohio St.3d 136, 141-42, 538 N.E.2d
373 (1989).

{¶ 148} Prejudice results when “ ‘there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.’ ” Bradley at 142, 538
N.E.2d 373, quoting Strickland at 694, 104 S.Ct. 2052. “ ‘A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” Id., quoting Strickland at 694, 104
S.Ct. 2052.

{¶ 149} When analyzing an ineffective assistance of counsel claim,
an appellate court “need not determine whether counsel's
performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged
deficiencies.” Strickland at 697, 104 S.Ct. 2052. See also State v.
Wade, 10th Dist. No. 20AP-456, 2021-Ohio-4090, 2021 WL
5368000, ¶ 19. “If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice * * * that course should
be followed.” Strickland at 697, 104 S.Ct. 2052.

2. Analysis

{¶ 150} Appellant asserts his trial counsel was ineffective in three
ways: (1) failing to object to the introduction of prior bad acts of
domestic violence; (2) failing to request an “other acts” instruction,
as contemplated by State v. Hartman, 161 Ohio St.3d 214, 2020-
Ohio-4440, 161 N.E.3d 651; and (3) failing to object to the
presentation and admission of the entire Nationwide CAC report
without redactions. (Appellant's Brief at 28-34.) Additionally,
appellant asserts the cumulative effect of counsel's alleged errors
rendered his trial counsel ineffective.

{¶ 151} As to the merits of each ineffective assistance allegation,
the state argues appellant fails to rebut the presumption that his trial
counsel provided him with adequate representation. The state also
contends that appellant has failed to demonstrate how he was
prejudiced by any of the alleged errors individually or cumulatively.

a. Failure to object to testimony and evidence about prior bad
acts of domestic violence
{¶ 152} Appellant first alleges his attorney was ineffective for
failing to object to the introduction of irrelevant and inadmissible
prior bad acts evidence presented to the jury through the testimony
of R.S., Alicia Daniels (the forensic interviewer at Nationwide
Children's Hospital), and A.C., and through State's Exhibit B (Ms.
Daniels's report). This evidence pertained to the allegation that
appellant previously committed domestic violence against his wife.

{¶ 153} While explaining her strained relationship with A.C., R.S.
stated: “There was always a fight or [appellant] would hit [A.C.].
You would hear her screaming from downstairs. We just -- we
weren't allowed to have any kind of connection with her or each
other.” (Tr. Vol. II at 251.) A.C. testified that appellant “was arrested
for assaulting” her. (Tr. Vol. II at 294.) And Ms. Daniels testified
that, in her forensic interview, R.S. “talked about exposure to some
domestic violence from her stepfather *277 towards her mother,”
“physical abuse from her stepfather towards her siblings,” physical
abuse towards herself, and “a lot of emotional maltreatment.” (Tr.
Vol. III at 359.) Ms. Daniels's report also reflected a history of
domestic violence in the home. (Trial Ex. B at 4, 27, 44, 52.) No
specific details about the domestic violence were presented at trial.

{¶ 154} Relevant evidence is defined as “evidence having any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than
it would be without the evidence.” Evid.R. 401. “Evidence which is
not relevant is not admissible.” Evid.R. 402. “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.” Evid.R.
404(B). However, this evidence may be relevant for other purposes,
such as to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.” Id.; accord R.C. 2945.59. The list of permitted purposes
in Evid.R. 404(B) is not exhaustive. State v. Morris, 132 Ohio St.3d
337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 18. Rather, “evidence of
other crimes, wrongs, or acts may be admissible for any purpose
material to the issue of guilt or innocence, as long as it is not being
introduced for the purpose of showing the accused's propensity to
commit bad acts.” State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-
278, 932 N.E.2d 345, ¶ 49 (2d Dist.). But, even if evidence is
relevant, it is not admissible “if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” Evid.R. 403(A).

{¶ 155} Appellant concedes in his brief that “the claims of domestic
violence[,] [at most,] help form the background and explain why
there was a lack of reporting on behalf of R.S.” (Appellant's Brief at
28.) Thus, he arguably concedes the evidence was relevant
under Evid.R. 401.

{¶ 156} Ultimately, appellant argues his trial counsel's failure to
object to this evidence under Evid.R. 403 constituted deficient
performance. Generally, he contends that the brief and vague
reference to these prior domestic violence incidents tainted the jury's
perception of him. (Appellant's Brief at 29.) Again, appellant
concedes relevance but asserts such evidence was unfairly
prejudicial. Given that there were only four references to this other-
acts evidence over the course of a four-day trial, and that these
references were not descriptive and did not amount to anything more
than a brief mention of the prior history, we find that trial counsel's
objection to such testimony and evidence would have been futile and
not likely sustained if made.

{¶ 157} Defense counsel's failure to object to admissible evidence
does not constitute deficient performance under Strickland. See,
e.g., State v. Tyler, 10th Dist. No. 05AP-989, 2006-Ohio-6896, 2006
WL 3775876, ¶ 40. “Counsel is certainly not deficient for failing to
raise a meritless issue.” State v. Issa, 93 Ohio St.3d 49, 68, 752
N.E.2d 904 (2001). Appellant has failed to demonstrate that an
objection to this other-acts evidence would have been successful;
thus, we find he has not demonstrated deficient performance.

{¶ 158} And, assuming arguendo that the challenged other-acts
evidence was inadmissible, “[f]ailure to object to error, alone, is not
enough to sustain a claim of ineffective assistance of counsel.” State
v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). See
also State v. Pawlak, 8th Dist. No. 99555, 2014-Ohio-2175, 2014
WL 2167887, ¶ 81-83; State v. Taylor, 10th Dist. No. 12AP-870,
2013-Ohio-3699, 2013 WL 4678049, ¶ 33-35. As the Supreme
Court of Ohio has explained:

“[E]xperienced trial counsel learn that objections to each
potentially objectionable event could actually act to their
party's detriment. * * * In light of this, any single failure to
object usually cannot be said to have been error unless the
evidence sought is so prejudicial * * * that failure to object
essentially defaults the case to the state. Otherwise, defense
counsel must so consistently fail to use objections, despite
numerous and clear reasons for doing so, that counsel's
failure cannot reasonably have been said to have been part
of a trial strategy or tactical choice.”
State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d
1144, ¶ 140, quoting Lundgren v. Mitchell, 440 F.3d 754, 774 (6th
Cir. 2006).

{¶ 159} In this case, defense counsel's failure to object can be
reasonably viewed as trial strategy or tactical choice. This was a
situation where a single offhand reference was made to domestic
violence on a few independent occasions. The reference was not
detailed and, once it was made by the witness, the prosecutor did not
pursue any additional inquiry about the topic. Objecting in each of
these separate instances could have brought a heightened awareness
to the testimony—something trial counsel might have intended to
avoid. Accordingly, we find trial counsel's failure to object to minor
references such as those presented here, even if erroneous, may have
been a reasonable tactical choice. For these reasons, we conclude
counsel's failure to object to this other-acts evidence did not
constitute deficient performance.

{¶ 160} Moreover, appellant fails to demonstrate prejudice, or a
reasonable probability that, but for his trial counsel's failure to object
to these brief and non-descriptive references to alleged domestic
violence incidents between appellant and A.C., the result of the
proceeding would have been different. Appellant broadly contends
that “[t]he repeated introduction of [this other-acts evidence] tainted
the [jury's] view of [him],” and cast him “as someone prone to
commit crime.” (Appellant's Brief at 29.) However, the jury's
verdict, which included acquittals on four counts, belies his claim
that the admission of irrelevant and inadmissible other-acts evidence
generally tainted the jury's view of him, so as to satisfy Strickland’s
prejudice prong.3 See, e.g., State v. Gardner, 2d Dist. No. 21357,
2010-Ohio-6479, 2010 WL 5550244, ¶ 33.

{¶ 161} Additionally, the state produced ample evidence supporting
the counts of which the jury found appellant guilty. R.S. provided
direct testimony of appellant's sexual conduct and provided a
description of appellant's penis that was consistent with A.C.’s
description. And, importantly, the state played six recordings
containing appellant's inculpatory statements, acknowledgments,
and admissions relating to the sexual conduct R.S. described. On
those six recordings, appellant never expressly denied engaging in
any sexual encounters with R.S. He admitted to some (namely,
mutual oral sex), told A.C. where the first encounter happened
(living room of their Chatterly residence), informed A.C. where
other encounters occurred (the marital bed, for instance), justified
his actions (e.g., he was fighting with A.C. and R.S. was not
innocent), and repeatedly apologized for his actions. Although
appellant unequivocally denied all allegations in his trial testimony,
his credibility was undoubtedly undermined by the inculpatory
statements he made on those six recordings. Accordingly, in light of
this evidence, we do not believe trial counsel's failure to object to
the other-acts evidence impacted the outcome of appellant's trial.

{¶ 162} Based on the foregoing, we find trial counsel's failure to
object to other-acts evidence concerning prior domestic violence
against A.C. did not constitute ineffective assistance of counsel.

b. Failure to request an other-acts evidence limiting instruction

{¶ 163} Appellant also contends his trial counsel's failure to request
a limiting instruction concerning the other-acts evidence constituted
ineffective assistance of counsel. As appellant notes, when other-
acts evidence is presented at trial, “ ‘a court should explain both the
specific purpose for which the evidence may be considered and the
rationale for its admission on the record.’ ” (Appellant's Brief at 30,
quoting Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161
N.E.3d 651 at ¶ 34.)

{¶ 164} Such instruction is given, where appropriate, to mitigate the
risk of a jury using such evidence improperly. The Supreme Court
has cautioned trial courts, however, about giving such limiting
instruction sua sponte any time other-acts evidence is presented at
trial. “Depending on the nature of the other-acts evidence and the
context in which it is used, defense counsel may as a matter of
strategy wish to avoid highlighting the evidence for the
jury.” Hartman at ¶ 67, citing State v. Schaim, 65 Ohio St.3d 51, 61,
600 N.E.2d 661 (1992), fn. 9 (“the decision not to request a limiting
instruction is sometimes a tactical one, and we do not wish to impose
a duty on the trial courts to read this instruction when it is not
requested”).

{¶ 165} As courts, including this one, have recognized, trial counsel
may decide, as a matter of trial strategy, not to request a limiting
instruction due to concerns that a limiting instruction “will only
emphasize in the juror's minds the evidence of other criminal acts
committed by the defendant, thereby reinforcing the
prejudice.” Strongsville v. Sperk, 8th Dist. No. 91799, 2009-Ohio-
1615, 2009 WL 866915, ¶ 38. See State v. Hester, 10th Dist. No.
02AP-401, 2002-Ohio-6966, 2002 WL 31819725, ¶ 15 (“Counsel
may have declined to request a limiting instruction regarding
appellant's prior convictions out of concern that, if such an
instruction were given, the prior convictions would be once again
called to the jury's attention.”). The defense's trial strategy in this
case was to undermine the credibility of R.S. and A.C., emphasize
the lack of physical evidence, even with appellant's cooperation, and
add context to the inculpatory statements appellant made on the six
recordings. Given the brief, vague, and infrequent references to prior
domestic violence incidents involving A.C., we find the decision not
to request a limiting instruction was consistent with the trial strategy
of appellant's trial counsel.

{¶ 166} Moreover, as described in the previous section, the state
produced ample evidence supporting all counts on which appellant
was convicted, including *280 testimony from R.S. and inculpatory
statements made by appellant conceding he engaged in some sexual
conduct with R.S. Accordingly, we do not find his trial counsel's
failure to request a limiting instruction impacted the outcome of
trial.

{¶ 167} Based on the foregoing, we find appellant fails to
demonstrate either the deficient performance or
prejudice Strickland requires to support this allegation of ineffective
assistance of counsel.

c. Allowing the full Nationwide CAC report to be presented and
admitted as evidence without redactions

{¶ 168} Appellant also argues his trial counsel was ineffective in
failing to object to the presentation and admission of the entire
Nationwide CAC report (Trial Ex. B), without redactions.
(Appellant's Brief at 29-30.) He specifically takes issue with two
sections, and generally alleges that “[m]any of the statements found
in the report cannot be attributed to seeking medical treatment”
under Evid.R. 803(4). (See id.) Our analysis is limited to the specific
passages appellant identifies in his brief. See, e.g., State v. C.C.B.,
10th Dist. No. 18AP-782, 2019-Ohio-3631, 2019 WL 4272001, ¶
38, citing In re L.W., 10th Dist. No. 17AP-587, 2018-Ohio-2099,
2018 WL 2460010, ¶ 46; App.R. 16(A)(7).

{¶ 169} At oral argument before this court, the state conceded that
not all statements contained in the Nationwide CAC report were
admissible as statements for purposes of medical diagnosis or
treatment under Evid.R. 803(4). The state also agreed the
Nationwide CAC report should not have been admitted in its entirety
and that some of the extraneous statements should have been
redacted. Nonetheless, the state maintains that appellant fails to
demonstrate that his trial counsel was ineffective for failing to object
to the admission of the entire report or that the improper admission
of this unredacted report affected the outcome of trial.

{¶ 170} Evid.R. 801(C) defines “hearsay” as “a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” Hearsay is generally inadmissible unless an exception
applies. Evid.R. 802. Pertinent here, Evid.R. 803 excludes various
items from the hearsay rule, “even though the declarant is available
as a witness,” including “[s]tatements made for purposes of medical
diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.” Evid.R. 803(4). The
term “medical diagnosis” in Evid.R. 803(4) includes a mental health
diagnosis. State v. R.L.R., 10th Dist. No. 18AP-971, 2020-Ohio-
4577, 2020 WL 5705073, ¶ 16, citing In re S.A., 12th Dist. No.
CA2017-07-092, 2017-Ohio-8792, 2017 WL 5989070, ¶ 41. See
also State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933
N.E.2d 775, ¶ 33-44.

{¶ 171} “ ‘[Evid. R.] 803(4) encompasses statements made by
persons who bring the patient to the hospital or doctor's office, as
long as the third person's statements are in subjective contemplation
of treatment or diagnosis. * * * Where, however, circumstances
indicate the third [person] is merely speculating as to facts relating
to the injury, exclusion may be warranted since the essential element
of reliability is not present.’ ” State v. Thompson, 2d Dist. No.
22984, 2010-Ohio-1680, 2010 WL 1511496, ¶ 24, quoting
Weissenberger's Ohio Evidence Courtroom Manual 583 (2008). See
also State v. Airwyke, 11th Dist. No. 2006-T-0073, 2007-Ohio-
3199, 2007 WL 1810524, ¶ 21. The hearsay exception provided
by Evid.R. 803(4) is limited to those statements made by the patient
(or third party who brought the patient to the medical facility) which
are reasonably pertinent to an accurate diagnosis and should not be
a conduit through which matters of no medical significance would
be admitted. State v. Boston, 46 Ohio St.3d 108, 121, 545 N.E.2d
1220 (1989).

{¶ 172} First, appellant takes issue with some of the “order
comments” in the “Referral to Behavioral
Health/Psychiatry/Psychology” section of that report, which
describe R.S.’s “pertinent past history” as follows:

“Chronic exposure to DV against mother by her biofather
and stepfather. Family currently in fear of being killed by
stepfather[ ] now that patient has disclosed. She was
sexually abused by stepfather's son in the past, and she was
seen in 2014 in our CAC for that at the time. The
stepfather's son is serving prison time currently for the
crime. Patient did not disclose about stepfather until today
(8/7); however, they were both sexually abusing her during
the same time periods. Stepfather continued after the
stepbrother was incarcerated.”

(Appellant's Brief at 29, quoting Trial Ex. B at 18.)

{¶ 173} Appellant concedes the rule permits Dr. Brink to “repeat the
allegations made by R.S., assuming they were for the purpose of
medical treatment,” but takes issue with the fact that this paragraph
is Dr. Brink's summary of R.S.’s responses during her forensic
interview at Nationwide CAC—i.e., they are not framed as the
“words of R.S.” (Appellant's Brief at 29.) He contends this
paragraph contains an out-of-court statement “made by a medical
professional that [improperly] asserts that a crime—the one
[appellant] is on trial for—occurred.” (Appellant's Brief at 29.)
Since this paragraph is designated as R.S.’s “pertinent past history,”
however, it can be inferred that the information in this paragraph
came from statements made by R.S. (or A.C.) for purposes of
medical treatment and diagnosis. And because this paragraph is
included as part of Dr. Brink's referral of R.S. to a mental health
provider, context clearly indicates it reflects a summary of
information obtained from R.S. and A.C. that Dr. Brink believed
was pertinent to this referral—not an improper opinion that the
charged offenses actually occurred. Accordingly, this argument is
not well-taken.

{¶ 174} Appellant also argues this paragraph improperly “states, as
fact, that the family is now in fear of [being killed by] him,” which
he claims “implies that [appellant] has a guilty consci[ence].”
(Appellant's Brief at 29-30.) Without further explanation, we cannot
ascertain how the former implies the latter. In any event, we agree
that information about the family’s fear of appellant killing them
was arguably not made for purposes of R.S.’s medical treatment and
diagnosis. It was thus not admissible under Evid.R. 803(4). Finding
this statement to be inadmissible hearsay, a pretrial motion to
suppress this statement (or objection at trial) would not have been
futile and would likely have been sustained if made, as there would
be no justification for its admission. Accordingly, we must next
consider whether failing to object constituted deficient performance.
{¶ 175} Failing to object to irrelevant and prejudicial testimony may
sometimes be viewed as tactical. In this case, however, counsel's
failure to seek exclusion of the statement that the family is afraid
appellant will kill them cannot reasonably be viewed as trial strategy
or tactical choice. Defense counsel had this report prior to trial. We
acknowledge that there may be strategy involved in an
attorney's decision not to object to evidence during trial; but, in this
case, that would not have been necessary. A pretrial suppression
motion could have been filed, or defense counsel could have moved
for redaction of this statement outside of the presence of the jury.
Thus, we find there was no tactical reason to acquiesce to its
inclusion in the admitted report.

{¶ 176} Appellant argues prejudice under Strickland by claiming
the paragraph's reference to domestic violence and his family
fearing him “created a propensity inference that [appellant] commits
crimes against his family.” (Appellant's Brief at 30.) Even assuming
that to be true, we find appellant cannot demonstrate there is a
reasonable probability the outcome of the trial would have been
different if these two statements had been excluded from the report.
The state presented ample evidence of guilt, including numerous
inculpatory statements made by appellant on the six recordings,
R.S.’s direct testimony of appellant's sexual conduct with her, and
R.S.’s ability to provide a description of appellant's penis that was
consistent with A.C.’s description. Trial counsel's failure to seek
suppression of two sentences typed in a small font size and buried
in a paragraph on a page in the middle of the 53-page exhibit does
not amount to the prejudice required by Strickland.

{¶ 177} We find that all other statements in this paragraph were
made for purposes of—and are reasonably pertinent to—R.S.’s
mental health medical treatment and diagnosis. Thus, they fall
within Evid.R. 803(4)’s hearsay exception. Based on the forgoing,
we find appellant fails to demonstrate that an objection to Dr. Brink's
summary of the allegations R.S. made against him would have been
successful. Failure to object to admissible evidence does not
constitute deficient performance of counsel
under Strickland. See Tyler, 2006-Ohio-6896 at ¶ 40; State v.
Taylor, 78 Ohio St.3d 15, 31, 676 N.E.2d 82 (1997). Moreover, for
the same reasons described above, he cannot demonstrate that the
failure to suppress these statements prejudiced him.

{¶ 178} Based on the foregoing, we conclude that defense counsel's
failure to seek exclusion of this paragraph in the Nationwide CAC
report did not constitute ineffective assistance.
{¶ 179} Second, appellant takes issue with a sentence in the
“Interview Summary” section authored by Ms. Daniels4 stating:
“The child's disclosure at the Child Assessment Center was clear,
coherent, and consistent.” (Appellant's Brief at 30, citing Trial Ex.
B at 8.) Of note, Ms. Daniels was not asked about this statement in
the report during her trial testimony. Appellant argues his trial
counsel was ineffective in failing to seek excision of this statement
from the Nationwide CAC report because it improperly reflected
Ms. Daniels's opinion about the veracity of R.S.’s statements.
(Appellant's Brief at 30.)

{¶ 180} The Supreme Court has held that an expert witness may not
testify as to their opinion of the veracity of a child
declarant. Boston at 128-29, 545 N.E.2d 1220. More generally, an
expert may not provide opinion testimony regarding the truth of a
witness's statements or testimony. State v. Stowers, 81 Ohio St.3d
260, 262, 690 N.E.2d 881 (1998). Such testimony is presumptively
prejudicial and inadmissible because it “ ‘infringe[s] upon the role
of the fact finder, who is charged with making determinations of
veracity and credibility.’ ” Boston at 128-29, 545 N.E.2d 1220,
quoting State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409
(1988) (Brown, J., concurring). However, an expert may provide
testimony that supports “the truth of the facts testified to by the
child, or which assists the fact finder in assessing the child's
veracity.” (Emphasis deleted.) Stowers at 262-63, 690 N.E.2d 881.
This testimony “ ‘does not usurp the role of the jury, but rather gives
information to a jury which helps it make an educated
determination.’ ” Id. at 263, 690 N.E.2d 881, quoting State v.
Gersin, 76 Ohio St.3d 491, 494, 668 N.E.2d 486 (1996). See
also State v. Sayles, 8th Dist. No. 108524, 2020-Ohio-5508, 2020
WL 7062485, ¶ 37-40.

{¶ 181} Here, we conclude Ms. Daniels's statement in the
Nationwide CAC report that R.S.’s account was “clear, coherent,
and consistent” does not amount to an opinion on the veracity of
R.S.’s allegations. Rather, Ms. Daniels's impression that R.S. gave
a “clear, coherent, and consistent” statement is admissible
information that can help the jury make an educated determination
about the manner in which R.S. recounted her story and did not
improperly vouch for R.S.’s credibility. Accordingly, because the
testimony was permissible under Boston and Stowers, we find trial
counsel was not ineffective for failing to object to this statement in
the Nationwide CAC report.

{¶ 182} Even if counsel were deficient in failing to object to this
statement in Ms. Daniels's report—which she was not asked about
at trial—appellant has not demonstrated how he was prejudiced by
the deficient performance such that the result of the trial could have
been different. R.S. testified about the sexual encounters at trial. The
state also presented evidence and testimony relating to the
statements R.S. made about the sexual abuse in 2018 when she
reported it. Thus, the jury was able to make its own determination
during the trial as to whether R.S.’s statements were clear, coherent,
and consistent for purposes of assessing her credibility.
Accordingly, we find that appellant was not deprived of effective
assistance of counsel when his counsel failed to object to the
admission of the full Nationwide CAC report on the basis of this
statement.

d. Cumulative Error

{¶ 183} Finally, appellant argues his counsel was ineffective based
on the cumulative effect of his errors during the trial. “Under this
doctrine, a conviction will be reversed when the cumulative effect
of errors in a trial deprives a defendant of a fair trial even though
each of the numerous errors does not individually constitute cause
for reversal.” State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-
6700, 172 N.E.3d 841, ¶ 169. See also State v. C.D.S., 10th Dist. No.
20AP-355, 2021-Ohio-4492, 2021 WL 6055939, ¶ 112. As applied
to a claim for ineffective assistance of counsel, “[e]ach assertion of
ineffective assistance of counsel going to cumulative error depends
on the merits of each individual claim; when none of the individual
claims of ineffective assistance of counsel have merit, cumulative
error cannot be established simply by joining those meritless claims
together.” Graham at ¶ 170, citing State v. Hill, 75 Ohio St.3d 195,
661 N.E.2d 1068 (1996).

{¶ 184} We have already concluded that appellant has failed to
demonstrate his trial counsel committed multiple errors under the
performance prong of Strickland. Thus, in the absence of
establishing that multiple errors were committed by his counsel at
trial, he cannot establish cumulative error. Appellant has not, with
these *284 arguments, carried the burden of establishing an
ineffective assistance of counsel claim on appeal. See State v. Gear,
3d Dist. No. 15-22-03, 2023-Ohio-1246, 2023 WL 2968095, ¶ 59.
Because all of his individual claims of ineffective assistance of
counsel, with the exception of one (sentence in the report concerning
the family's fear of appellant), are without merit as to deficient
performance, we find he has failed to show cumulative error
sufficient to reverse his convictions.
{¶ 185} Even assuming we found appellant's ineffective assistance
allegations, when considered in the aggregate, amount to deficient
performance of his trial counsel, we nonetheless find he cannot
demonstrate the prejudice necessary under Strickland. This is
because the state produced ample evidence of his guilt at trial. R.S.
testified about the sexual encounters she had with him and described
appellant's penis in a manner consistent with A.C.’s description of
it. In the six recorded conversations between appellant and A.C.,
appellant never expressly denied having any sexual encounters with
R.S. Instead, the jury heard appellant admit to engaging in some
sexual conduct with R.S. (namely, mutual oral sex), describe where
the first encounter occurred (living room of their Chatterly
residence) and where others took place (the marital bed, for
instance). The jury also heard him justify (e.g., he was fighting with
A.C. and R.S. was not innocent) and apologize for his actions. Even
if none of the performance errors appellant alleges occurred, we do
not believe, in light of this inculpatory evidence, it is reasonably
probable the outcome of his trial would have been different.

{¶ 186} Based on the foregoing, we find that appellant is unable to
demonstrate ineffective assistance of counsel. Accordingly, we
overrule his third assignment of error.

State v. O.E.P-T, supra.
Petitioner acknowledges that the governing standard for ineffective assistance of counsel
claims is found in Strickland v. Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
To prevail on an ineffective-assistance-of-counsel claim, a movant must establish that (1)
counsel’s performance was deficient and (2) the deficiency resulted in prejudice, meaning that
there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of
a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
The Tenth District recognized Strickland as the governing Supreme Court precedent and
applied it in deciding Petitioner’s ineffective assistance of trial counsel claim. His burden in this
Court is to show that application was objectively unreasonable. Petitioner’s Reply is much shorter
than the Tenth District’s decision of this issue and consists largely of assertions these omissions
by counsel were prejudicial (ECF No. 12, PageID 1262-65).
Petitioner’s assertions of prejudice are unpersuasive in the face of the very thorough
opinion of the Tenth District. Ground Three should be dismissed.

Ground Four: Insufficient Evidence

In his Fourth Ground for Relief, Petitioner asserts he was convicted on constitutionally
insufficient 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). When reviewing a claim for sufficient
evidence, a federal habeas court must apply a twice-deferential standard.” Parker v. Matthews,
567 U.S. 37, 43 (2012) (per curiam). 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).
Padilla-Torres raised an insufficient evidence claim as his seventh assignment of error and
the Tenth District decided it as follows:
{¶ 138} In his seventh assignment of error, appellant contends the
evidence at trial was insufficient to support his convictions.

1. Controlling Law and Standard of Review

{¶ 139} The issue of whether the evidence is sufficient as a matter
of law to support a conviction involves a determination of whether
the state met its burden of production at trial. See, e.g., State v.
Smith, 10th Dist. No. 03AP-1157, 2004-Ohio-4786, 2004 WL
2008465, ¶ 16; State v. Frazier, 10th Dist. No. 05AP-1323, 2007-
Ohio-11, 2007 WL 16778, ¶ 7; Thompkins, 78 Ohio St.3d at 386,
678 N.E.2d 541. We do not weigh the evidence but instead
determine “ ‘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. Leonard, 104 Ohio St.3d 54, 2004-
Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
We essentially assume the state's witnesses testified truthfully and
determine if that testimony satisfies each element of the crime. State
v. Watkins, 10th Dist. No. 16AP-142, 2016-Ohio-8272, 2016 WL
7494358, ¶ 31, quoting State v. Hill, 10th Dist. No. 07AP-889, 2008-
Ohio-4257, 2008 WL 3878363, ¶ 41. Thus, evidence is sufficient to
support a conviction where, if believed, that evidence would allow
any rational trier of fact to conclude that the state proved each
element of the offense beyond a reasonable doubt. Frazier at ¶ 7,
citing Jenks at paragraph two of the syllabus.

2. Analysis

{¶ 140} Appellant generally contends Counts 5 through 13 are not
supported by sufficient probative evidence because no physical
evidence of any offense was presented at trial and R.S. was not a
credible witness. (Appellant's Brief at 44.) These arguments,
however, pertain not to the sufficiency of evidence, but to the
manifest weight. Having already overruled appellant's manifest
weight challenge in the sixth assignment of error, this portion of his
argument is not well-taken.
{¶ 141} Appellant also argues the state failed to present sufficient
probative evidence establishing R.S. was under the age of 10 for the
rape by fellatio offense charged in Count 7 to support the guilty
verdict for the under-10 specification. (Appellant's Brief at 42-44.)
We disagree.

{¶ 142} R.S. testified about sexual conduct (fellatio) that occurred
at the family's Bar Harbor home multiple times. (Tr. Vol. II at 222-
26.) She testified that she was 8 when she moved to that residence
and left “shortly after” her 10th birthday. (Tr. Vol. II at 223-26.)
A.C. testified the family lived at the Bar Harbor residence from
October 2012 until September/October 2014. (Tr. Vol. II at 289.)
Because R.S. was born in June 2004, she was under 10 for
approximately 1 year and 8 months out of 2 years the family spent
in that home. R.S. described the acts as occurring many times, often,
and for a duration of almost 7 years. (See, e.g., Tr. Vol. II at 218,
221-28, 231-34, 236-37, 239-40.) And R.S. testified that appellant
performed oral sex on her before she turned 10:

[STATE:] And what would he do once you were sitting on
his face?
[R.S.:] He would perform oral sex on me.
[STATE:] Okay. So his mouth was touching your vagina?
[R.S.:] Yes.
[STATE:] And that's something that started once you
moved to Chatterly Lane?
[R.S.:] No, that would happen when we lived in Bar Harbor
too.
[STATE:] Okay. So it started before Chatterly Lane?
[R.S.:] Yes.
[STATE:] So that's before you even turned 10?
[R.S.:] Yes.

(Tr. Vol. II at 228-29.)

{¶ 143} Construing the evidence in the light most favorable to the
state, a reasonable trier of fact could have found the state proved,
beyond a reasonable doubt, that appellant engaged in fellatio with
R.S. when she was younger than the age of 10 based on R.S.’s
testimony. Therefore, we conclude appellant's conviction for Count
7 is supported by sufficient evidence.

{¶ 144} For the foregoing reasons, appellant's seventh assignment
of error is overruled.

State v. O.E.P-T, supra.
Because the Tenth District decided this claim on the merits, Petitioner’s burden in habeas
is to show the decision was an objectively unreasonable application of Jackson v. Virginia. He
first contends Counts 5 through 13 are not supported by sufficient probative evidence because of
the lack of physical evidence and the lack of credibility on the part of the victim (Reply, ECF No.
12, PageID 1266). However as the Tenth District pointed out in overruling this assignment of

error, those claims go to manifest weight rather than sufficiency. Supra at ¶ 140.
Petitioner contends no documentary proof was offered of the victim’s being below the age
of ten. But no such documentation is necessary; R.S. testified, as the Tenth District found, that
she was under ten when the abuse started. R.S. was certainly competent to testify as to her own
age. Petitioner’s argument that she was not credible was an argument for the jury.
The testimony of a victim is sufficient evidence under Jackson.
"[T]his Court has long held that the testimony of the victim alone is
constitutionally sufficient to sustain a conviction." Tucker v.
Palmer, 541 F.3d 652, 658 (6th Cir. 2008), citing United States v.
Terry, 362 F.2d 914, 916 (6th Cir. 1966) ("The testimony of the
prosecuting witness, if believed by the jury, is sufficient to support
a verdict of guilty."); see also O'Hara v. Brigano, 499 F.3d 492, 500
(6th Cir. 2007) (holding that victim's testimony that habeas
petitioner abducted her and raped her was constitutionally sufficient
to sustain conviction despite lack of corroborating witness or
physical evidence); United States v. Howard, 218 F.3d 556, 565 (6th
Cir. 2000) (holding that even if the only evidence was testimony of
the victim, that is sufficient to support a conviction, even absent
physical evidence or other corroboration); United States v. Jones,
102 F.3d 804, 807 (6th Cir. 1996) (noting that there is sufficient
evidence to support a conviction even if the "circumstantial
evidence does not remove every reasonable hypothesis except that
of guilt") (internal quotation marks omitted).

Bohannon v. Warden, 2013 U.S. Dist. LEXIS 148355, *31-32 (S.D. Ohio Oct. 4, 2013) (Merz,
M.J.)
Petitioner’s conviction is plainly based on sufficient evidence and his Fourth Ground for
Relief should be dismissed.

Ground Five: Improper Maximum and Consecutive Sentences

In his Fifth Ground for Relief, Petitioner claims he was improperly sentenced to maximum

consecutive sentences in violation of his Sixth Amendment right to have the justifying factors for
such sentences found by a jury. He relies on Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely v. Washington, 542 U.S. 296 (2004).
Petitioner presented his consecutive sentencing claim to the Tenth District as his fifth
assignment of error. However, he presented it only as an error under state law which the Tenth
District found was without merit. Neither Apprendi nor Blakely is cited in his appellate brief (State
Court Record, ECF No. 8, PageID 71-72).
Because Padilla-Torres failed to present his consecutive sentence claim as a constitutional
violation to the Ohio courts, he has procedurally defaulted that claim which should therefore be

dismissed.

Conclusion

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

September 30, 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. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11154880. Public record. Not legal advice.