Submitted February 16, 1993 —
Decided June 16, 1993.
APPEAL and CROSS-APPEAL from the Court of Appeals for Warren County, No. CA91-01-004.
On the evening of July 19, 1990, defendant-appellee and cross-appellant, Scott Nicholas (hereinafter referred to as "appellee"), Stephanie M. and Carla G. attended a party at a horse barn on the Warren County Fairgrounds. During the course of the party, appellee was heard singing his favorite song, "[U] Can't Touch This" by rap musician M.C. Hammer. In particular, appellee repeated a refrain in the song: "Hammer time." At approximately 12:30 a.m., appellee escorted Stephanie and Carla to a barn on the fairgrounds where the girls were spending the night. Stephanie immediately thereafter fell asleep in her sleeping bag.
At approximately 5:00 a.m., Stephanie was awakened by a person who forcibly accosted her from behind. Believing the person to be her friend, Sam Coven, and initially concluding that she was the subject of a practical joke, Stephanie stated: "Let me go, Coven. You're hurting me." Her assailant replied: "This ain't Coven." Stephanie immediately recognized the voice to be that of appellee. Appellee thereafter physically removed Stephanie from the barn and into a nearby automobile. Prior to forcing Stephanie into the automobile, appellee struck her in the eye with his fist. When he raised his hand to do so, Stephanie was able to visually identify appellee as her assailant.
Once inside the vehicle, Stephanie was blindfolded and her hands were tied to the steering wheel. Thereupon, appellee exclaimed "Hammer time," removed Stephanie's shorts and panties, inserted his fingers in her vagina, placed his tongue on her vagina, and subsequently inserted his penis in her vagina. Thereafter, appellee drove the automobile from the fairgrounds to a residential neighborhood in Lebanon, Ohio. During the journey of approximately ten minutes, Stephanie, although remaining blindfolded, was able to obtain glimpses of appellee by positioning her head in a certain fashion. Appellee subsequently pushed her out of the car and abandoned her on the street.
On August 7, 1990, appellee was indicted by the Warren County Grand Jury with respect to Stephanie on one count of rape (vaginal intercourse) in violation of R.C. 2907.02(A)(2), one count of rape (cunnilingus) in violation of R.C. 2907.02(A)(2), one count of felonious sexual penetration (digital) in violation of R.C. 2907.12(A)(2), one count of kidnapping in violation of R.C. 2905.01, and one count of gross sexual imposition in violation of R.C. 2907.05(A)(1).
On December 19, 1990, trial commenced in the Warren County Court of Common Pleas. In the course of the trial, testimony was elicited from Stephanie regarding the circumstances surrounding the commission of the crimes, her ability to audibly and visually identify appellee, and her ability to recall the interior of the automobile in which she was raped. Her description matched the interior of the automobile operated by appellee. Moreover, testimony was elicited from a forensic scientist in the employ of the Miami Valley Regional Crime Lab, who stated that hair found in the front seat of the automobile owned by appellee matched that of Stephanie. Finally, the state presented the testimony of two forensic DNA experts from Cellmark Diagnostics, who testified that DNA obtained from a semen stain on Stephanie's shorts matched the DNA derived from a sample of blood drawn from appellee. No objection was made to the introduction of this evidence. The defense through pretrial discovery had received the report of the test results obtained by Cellmark. Dr. Conrad Gilliam of Columbia University, a DNA expert in the employ of the defense, reviewed the report and supporting materials. After discussion with Dr. Gilliam and with appellee's consent, defense counsel chose not to call Dr. Gilliam as a witness, but instead conducted an extensive and vigorous cross-examination of the DNA experts called by the state.
On January 4, 1991, appellee was convicted of all five counts in the indictment. The court of common pleas, finding no separate animus for the gross-sexual-imposition offense, declined to impose sentence therefor. Thereafter, the court sentenced appellee to ten to twenty-five years' incarceration for each remaining offense — to be served concurrently.
On December 2, 1991, the court of appeals affirmed in part and reversed in part the judgment of the trial court. The appellate court rejected a challenge to the admission of the DNA evidence. The court of appeals likewise rejected a claim of ineffective assistance of counsel based on the failure of appellee's trial attorney to object to the admission of the DNA evidence and his failure to adduce expert testimony in rebuttal to that presented by the state's DNA experts. However, the court of appeals concluded that the two counts of rape and one count of felonious sexual penetration were allied offenses of similar import under R.C. 2941.25(A) and, accordingly, appellee could be sentenced on only one offense. The state appealed the judgment of the court of appeals on the allied-offense issue, and appellee instituted a cross-appeal regarding the admission of the DNA evidence.
The cause is therefore before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.
Timothy A. Oliver, Warren County Prosecuting Attorney, JoAnne V. Hask and Joan Robinson, Assistant Prosecuting Attorneys, for appellant and cross-appellee.
Scott Nicholas, pro se, for appellee.
James Kura, Ohio Public Defender, Barbara A. Farnbacher and Kenneth R. Spiert, Assistant Public Defenders, for cross-appellant.
David L. Landefeld, urging reversal on appeal for amicus curiae, Ohio Prosecuting Attorneys Association.
K. Ronald Bailey and Barry W. Wilford, urging reversal on cross-appeal for amicus curiae, Ohio Association of Criminal Defense Lawyers.
The appellate court below concluded that the one count of vaginal rape, the one count of oral rape and the one count of digital felonious sexual penetration charged in the indictment of appellee are allied offenses of similar import which dictate the imposition of only one sentence with respect to all three counts. R.C. 2941.25 governs this issue. It provides:
"(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
"(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them."
In State v. Blankenship (1988), 38 Ohio St.3d 116, 526 N.E.2d 816, this court set forth a two-step analysis in determining whether multiple crimes for which a defendant is charged constitute allied offenses of similar import. The test proceeds as follows:
"In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses." (Emphasis sic and citations omitted.) 38 Ohio St.3d at 117, 526 N.E.2d at 817.
Appellee was convicted of two violations of R.C. 2907.02 ( i.e., vaginal and oral rape). R.C. 2907.02(A)(2) provides:
"No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force."
"Sexual conduct" is defined in R.C. 2907.01(A):
"`Sexual conduct' means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse."
Additionally, appellee was convicted of one violation of R.C. 2907.12 ( i.e., digital felonious sexual penetration). R.C. 2907.12(A)(2) provides:
"No person without privilege to do so shall insert any part of the body, or any instrument, apparatus, or other object into the vaginal or anal cavity of another when the offender purposely compels the other person to submit by force or threat of force."
Applying the holding of this court in Blankenship to the crimes with which appellee is charged, we find that they are not allied offenses of similar import. With respect to the two counts of rape, it is clear that the distinct elements of oral and vaginal rape do not "correspond to such a degree that the commission of one crime will result in the commission of the other." Commission of oral rape will not constitute commission of vaginal rape. The converse is likewise true. Thus, regarding the two counts of rape, appellee has failed to satisfy the first step of the test in Blankenship.
With respect to the count charging a violation of R.C. 2907.12(A)(2), it is apparent that the elements which constitute a violation of this provision can, under certain circumstances, correspond to the elements which constitute a violation of R.C. 2907.02(A)(2). That is, where the body part, the insertion of which constitutes a violation of R.C. 2907.12(A)(2), is the penis or the tongue of the offender, such acts would also constitute violations of R.C. 2907.02(A)(2), inasmuch as they would likewise amount to vaginal rape ( i.e., intercourse) and oral rape ( i.e., cunnilingus), respectively. Thus, appellee has satisfied the first step of the Blankenship analysis with respect to allied offenses of similar import.
However, appellee must also demonstrate that his conduct was such that the crimes were not committed separately or with a separate animus. Thus, if appellee had engaged in one act of vaginal intercourse and was charged under both statutes, it could not be contended by the state that appellee committed separate crimes or had a separate animus. That is not the situation in the present case. Appellee was charged with three separate crimes involving distinct sexual activity: vaginal intercourse, cunnilingus, and digital penetration of the vaginal cavity of Stephanie. Since each constitutes a separate crime with a separate animus, they do not constitute allied offenses of similar import.
Appellee cross-appealed the judgment of the court of appeals affirming the trial court's admission of evidence linking the DNA properties of his blood with that possessed by semen found on Stephanie's shorts. It is the contention of appellee that such evidence should not have been admitted. At the outset, it is important to recognize that appellee did not object to such evidence at trial. He has therefore waived the issue for purposes of appellate review. Accordingly, consideration of the propriety of its admission must be considered, if at all, under the plain-error rule. In State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899, this court observed:
"Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise. See, e.g., State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus; State v. Greer (1988), 39 Ohio St.3d 236, 252, 530 N.E.2d 382, 401."
Appellee contends on cross-appeal that the admission of the DNA evidence in the case at bar incorrectly identified him as the perpetrator of the sexual assaults on Stephanie. However, there existed independent evidence separate and apart from the DNA testimony linking him with the crime. The victim was able to audibly and visually identify appellee as the assailant. Appellee's use of the words "Hammer time" both the night before and the morning of the crime also connected him to the assault. Finally, the presence of the hair of the victim in the front seat of appellee's vehicle further corroborated Stephanie's testimony. Accordingly, the admission of the DNA evidence, even if erroneous, did not affect the outcome of the trial.
Appellee additionally contends that the failure of his trial attorney to object to the admission of the DNA evidence and to elicit the testimony of a DNA expert on his behalf constituted ineffective assistance of counsel. In State v. Bradley (1989), 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373, 379, this court announced the following test with respect to determining whether there has been ineffective assistance of counsel:
"`When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness.' State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910 [ 98 S.Ct. 3135, 57 L.Ed.2d 1154]. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668 [ 104 S.Ct. 2052, 80 L.Ed.2d 674]."
Judged by the foregoing standard, it is apparent that the claim of appellee regarding ineffective assistance of counsel is without merit. As an initial matter, the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel. State v. Thompson (1987), 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407, 417. Second, this court has held that DNA results constitute reliable evidence. State v. Pierce (1992), 64 Ohio St.3d 490, 501, 597 N.E.2d 107, 115. Accordingly, the failure to challenge the admissibility of such evidence cannot be considered ineffective assistance of counsel. Finally, assuming that the advocacy of counsel was somehow deficient, such deficiency constitutes reversible error only where it prejudices the rights of the criminal defendant. As we observed earlier, there was a considerable body of other evidence which identified appellee as the assailant in the present case. Accordingly, even if the DNA evidence were excluded, there was sufficient additional evidence from which the jury could have concluded that appellee committed the crimes at issue. His claim regarding the ineffective assistance of counsel must therefore fail.
For the foregoing reasons, that aspect of the judgment of the court of appeals which held that the two counts of rape and one count of felonious sexual penetration were allied offenses of similar import is reversed, and its judgment rejecting the challenge to appellee's convictions based on the admission of the DNA evidence is affirmed. The cause is therefore remanded to the trial court for reinstatement of judgment.
Judgment reversed in part, affirmed in part and cause remanded.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.