[Cite as State v. Quinones , 2014-Ohio-5544.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100928

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. ANDREW QUINONES

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-562226-A

BEFORE: Celebrezze, P.J., McCormack, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: December 18, 2014ATTORNEY FOR APPELLANT Russell S. Bensing 1350 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Holly Welsh Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113FRANK D. CELEBREZZE, JR., P.J.: {¶1} Defendant-appellant Andrew Quinones appeals from his c onvictions for rape, gross sexual imposition, and kidnapping. After a careful review of the record and relevant case law, we affirm appella nt’s convictions. I. Procedural History {¶2} On December 4, 2012, appellant was indicted on three counts of ra pe, four counts of kidnapping, one count of gross sexual impos ition, and one count of pandering obscenity involving a minor. The indictment was rende red based on allegations that appellant had molested victim, S.H., seven years earlier when she was between the ages of nine and ten. {¶3} On May 6, 2013, the case proceeded to a jury tr ial. At the conclusion of the state’s case, the state dismissed Count 9, pandering obscenity involving a minor. At the conclusion of trial, the jury was deadlocked and a mistrial wa s declared. A new tria l was set for July 8, 2013. {¶4} On July 26, 2013, a new attorney filed a noti ce of appearance on behalf of appellant, and a bench trial began on November 19, 2013. At the conclusi on of trial, the trial court found appellant guilty on all counts. {¶5} At sentencing, appellant was sentenced to five years for gross sexual imposition, ten years for rape, and life with the possibility for parole after ten years for kidnapping. The

sentences were ordered to run concurrently. The court also declared appellant to be an aggravated sexually-oriented offender.

II. Statement of the Facts {¶6} In March 2004, Heather H. became romantica lly involved with a ppellant. Shortly thereafter, Heather learned that she was preg nant with appellant’s child. On May 24, 2004,Heather and appellant married. During Heather’s pregnancy, appellant was in the military and stationed in Pensacola, Florida wh ile Heather remained in Ohio. {¶7} In September 2004, appellant returned to Ohio, without permission from his superiors, when he learned th at Heather was experiencing medical complications due to her pregnancy. Appellant moved in with Heather and her family in order to care for Heather during the remainder of her pregnancy. At the time, Heather lived with her mother Helen, her 10-year-old sister S.H., and her 11-year-old brother W.H. {¶8} On January 10, 2005, Heather and appellant ’s daughter, A.Q., was born. After A.Q.’s birth, appellant returned to Pensaco la, Florida, where he was punished for his unauthorized absence and ultimately discharged from the military. When appellant returned to Ohio, he permanently moved into Helen’s residence. {¶9} While appellant was living in Helen’s household, Helen ha d a job with a municipal clerk of courts office. Additionally, Heather work ed at a local drug store. Consequently, S.H. and W.H. were often left at home alone with appellant, and he became the authority figure in the

household. {¶10} S.H. testified that when she was between the ages of nine a nd ten, appellant began sexually abusing her. According to S.H., the abuse began with a kiss and escalated into appellant instructing her to “touc h his penis,” inappropriately touc hing her, and directing her to perform oral sex. S.H. testified that appellant ’s requests became more fre quent and aggressive. On a specific occasion, appellant forced her to perform oral sex by pulling her elbows together and pushing her head down. S.H. testified that on a number of occasions, he took her down to

the basement and forced her to ha ve anal sex. S.H. explained th at she complied with appellant’s directions because she felt that she had to obey h im or she would be punished. S.H. stated thatthe abuse ended when she moved to Crawford Count y with her mother and brother in the fall of

2005. {¶11} S.H. testified that as she became older and fully grasped what had been done to her, she became depressed and suicidal. S.H. stated that she was concerned appellant would sexually abuse A.Q. {¶12} When S.H. was approximately 16 years ol d, she was participating in a junior varsity basketball practice when she reacted negatively to a comment one of her teammates made and “stormed out of the gym in a rage.” Her coach, Jen Meyer, followed S.H. into the locker room. Meyer testified that when she asked S.H. what was bothering her, S.H. responded that “there were things that happe ned at home that weren’t good.” Meyer testified that she encouraged S.H. to meet with the sc hool’s guidance counselor, Tena Eyster. {¶13} After several meetings with Eyster, S.H. di sclosed that she had been “molested by a family member” when she was younger and livin g in Cleveland. According to Eyster, S.H. conveyed the information in a very “matter of f act” manner and stated that “there was oral sex and penetration.” Follo wing this conversation, Eyster cont acted Crawford County Children and Family Services. Eyster also contacted S.H.’s mother, Helen, and set up a meeting where S.H.

told her mother about the abuse. {¶14} Devon Sipes Ruiz, a case worker for Crawford County Children and Family Services, testified that she was assigned to perform an assessment of S.H. Ruiz testified that once she confirmed that S.H. was no longer resi ding in the home with appellant, she contacted

law enforcement and made them aware of the allegations. Thereafte r, Ruiz conducted an interview of S.H. where S.H. described some specific details of her sexual abuse. Ruiz testified that she subsequently sent a c opy of her assessment to the New burgh Heights Police Department.{¶15} Detective Brian O’Connell of the New burgh Heights Poli ce Department was assigned to investigate the sexu al assault of S.H. Det. O’C onnell testified that following his receipt of case worker Ruiz’s assessment, he contacted Helen and asked to meet S.H. Det.

O’Connell stated that he and a re presentative of the Cleveland Ra pe Crisis Cent er conducted an

interview with S.H. Det. O’ Connell testified that although “h er statements were somewhat vague on dates and times,” S.H. was able to explain and articulate that there were multiple instances that began to happen, instances being that of kissing, then progressed on to fondling of genitalia — [appellant]’s genitalia with her hand, him fondling S.H. with his hands. Then it progressed to oral sex, * * * as well as then progressing to what [S.H.] stat ed herself as sodomy and anal sex. Following his interview of S.H., Det. O’ Connell conducted a non-cust odial interview of appellant. Det. O’C onnell described a ppellant as “evasive” and “physically uptight.” {¶16} Appellant brings this timely appeal, raising one assignment of error for review. III. Law and Analysis {¶17} In his sole assignment of e rror, appellant argues that he was denied the effective assistance of counsel, in violation of th e Sixth Amendment to the U.S. Constitution. {¶18} In order to establish a claim of ineffec tive assistance of counsel, appellant must demonstrate that (1) couns el’s performance was defici ent or unreasonable under the circumstances and (2) the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ohio, an attorney properly licensed is presumed competent. State v. Lott , 51 Ohio St.3d 160, 174, 555 N.E.2d 293 (1990). The defendant has the bur den of proof and must overcome the strong presumption that counsel’s performance was adequate or that counsel’s action mig ht be sound trial strategy. State

v. Smith , 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).{¶19} Generally, decisions on strate gy and trial tactics are granted wide latitude of professional judgment, and it is not the duty of a reviewing cour t to analyze trial counsel’s legal

tactics and maneuvers. State v. Gau , 11th Dist. Ashtabula No. 2005-A-0082, 2006-Ohio-6531, ¶ 35, citing Strickland. Furthermore, “in a bench trial, the tr ial court is presumed to have relied only upon admissible evidence.” State v. Warren , 8th Dist. Cuyahoga No. 83823, 2004-Ohio-5599, ¶ 47, citing State v. Davis , 63 Ohio St.3d 44, 584 N.E.2d 1192 (1992). See

also State v. Turner , 10th Dist. Franklin No. 04AP-364, 2004-Ohio-6609, ¶ 24. {¶20} In the case at hand, appellant contends that defense counsel was deficient in three different respects. He claims th at defense counsel used improper strategy and t actics, allowed impermissible evidence to be admitted at trial, and failed to adequately prepare for trial. {¶21} Initially, appellant argues th at defense counsel’s strate gy was “doomed” in “the most offensive way possible.” Here, the record reflects that defense counsel attempted to discredit S.H.’s testimony by suggesting that it was “anatomically impossible” for appellant to anally rape S.H. without causing her serious phy sical injuries. Appellant ’s defense was centered on his past sexual partners, w ho were called to tes tify about appellant’s anatomy and sexual history. Appellant contends that defense counsel’s theory of defense was irrelevant and constituted a misunderstanding of the law. {¶22} Further, appellant challeng es defense counsel’s decisi on to elicit testimony during the cross-examination of Heather and social worker Ruiz relating to whether they believed S.H.’s allegations and asking Det. O’ Connell if he “form[ed] an opini on as to [appellant’s] guilt.” Appellant argues that defense c ounsel effectively bolstered the cr edibility of S.H. and prejudiced

his own client’s defense.{¶23} Next, appellant argues that defense couns el failed to object to numerous instances of inadmissible evidence. Specifically, he cont ends that defense counsel failed to object to Heather’s testimony concerning their “terrible marriag e” or to Det. O’Connell’s testimony that appellant was “very evasive” during his initial interview. {¶24} Finally, appellant argues that defense c ounsel’s conduct throughout the trial placed his level of prepar ation into question. {¶25} After a careful review of the record in its entirety, we find that appellant has not demonstrated a “reasonable probability” that the outcome of the proceedings would have been

different but for defense counsel’s deficient perfo rmance. We recognize that defense counsel’s line of questioning relating to appellant’s sex lif e with his past partners may not have been relevant. Further, the record supports appellant’s position that defense counsel should not have raised questions concerning S.H.’s credibility during cross-examination and demonstrated a lack of preparation prior to calling a ppellant to the stand. Ne vertheless, we will or dinarily refrain from second-guessing strategic decisions counsel makes at trial, even where counsel’s trial strategy was questionable. See State v. Patterson , 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶ 33 (“the scope of cross-examina tion falls within the realm of trial strategy and, therefore,

debatable trial tactic s do not establish ineffective assistance of counsel”), citing State v. Clayton , 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). {¶26} Moreover, we must presume that the trial court, serving as the trier of fact in a bench trial, did not consider such improper evidence. In re B.P.K. , 10th Dist. Franklin No. 12AP-343, 2012-Ohio-6166, ¶ 19. In fact, the tria l court emphasized this point, stating: I want the reviewing court to realize that certain testimony, and particularly the testimony that was elicited by the defense on cross-examination which was opinion testimony by the detective in the case about whether he believed thedefendant was telling the truth during the course of his statement, the Court did not consider the opinion testimony in reaching its verdict, or anyone else. {¶27} In our view, the perceived errors in de fense counsel’s perfo rmance did not impact the sufficiency of the state’s evidence. As noted by the trial court at the sentencing hearing, S.H.’s testimony was consistent throughout the pr oceedings despite defense counsel’s attempts to impeach her credibility and time line. (Tr. 1620-22.) As such, appe llant’s ineffective assistance of counsel argume nts fail the second prong in Strickland, supra

. {¶28} Appellant’s sole assignme nt of error is overruled. {¶29} Judgment affirmed. It is ordered that appellee recove r from appellant costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Th e defendant’s convictions having been affirmed, any bail pending appeal is ter minated. Case remanded to the trial court for execution of

sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE TIM McCORMACK, J., and EILEEN T. GALLAGHER, J., CONCUR