[Cite as State v. Ford, 2018-Ohio-3563.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 105865 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

NATHAN FORD

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-598281-A 

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

RELEASED AND JOURNALIZED: September 6, 2018 
ATTORNEY FOR APPELLANT

Rick L. Ferrara 

Rick L. Ferrara, Esq. 

2077 East 4th Street 

Second Floor 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

Mary Weston 

Christine M. Vacha 

Daniel T. Van 

Assistant County Prosecutors 

The Justice Center - 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, P.J.: 

{¶1} Defendant-appellant, Nathan Ford (“Ford”), appeals his convictions for rape 

and kidnapping. For the reasons set forth below, we affirm. 

{¶2} In 2006, Ford was convicted of raping multiple victims over an eight-year 

span between 1996 and 2004. He was sentenced to more than 100 years in prison for 

these rapes and other offenses. This court affirmed his convictions in State v. Ford, 8th 

Dist. Cuyahoga Nos. 88946 and 88947, 2007-Ohio-5722. Ford’s DNA was identified as 

a match on sexual assault collection kits that were submitted to the Ohio Bureau of 

Criminal Identification and Investigation (“BCI”) for testing and examination, which 

resulted in the charges in the instant case. 

{¶3} In August 2015, Ford was charged in a 13-count indictment for four separate 

incidents involving four separate victims. Ford was charged with five counts of rape, 

one count of aggravated robbery, five counts of kidnapping, and two counts of felonious 

assault.1

 Counts 1-5 relate to Jane Doe 1 (date of offense August 29, 1995); Counts 6-8 

relate to Jane Doe 2 (later identified as K.H.) (date of offense November 5, 1998); Counts 

9-11 relate to Jane Doe 3 (later identified as W.W.) (date of offense April 16, 2000); and 

Counts 12-13 relate to Jane Doe 4 (later identified as A.W.) (date of offense July 24, 

2000). 

 1Ford’s charges also included firearm specifications and sexually violent 

predator specifications. 
{¶4} Prior to trial, the state of Ohio dismissed Counts 1, 2, 3, 4, 5, 7, and 10 of 

the indictment. Consequently, the indictment was reordered as follows: Count 6 

became Count 1; Count 8 became Count 2; Count 9 became Count 3; Count 11 became 

Count 4; Count 12 became Count 5; and Count 13 became Count 6. 

{¶5} The matter proceeded to a jury trial in June 2016. Ford waived the right to a 

jury as to the sexually violent predator specifications. The following evidence was 

adduced at trial. 

Sexual Assault of K.H. 

{¶6} On November 5, 1998, K.H. was walking home at night along West 65th 

Street. As she reached the area of West 65th and Madison Avenue, she was approached 

by an unknown African-American male, later determined to be Ford. K.H. testified that 

Ford was friendly at first, and walked along the street with her for a few blocks. They 

were at the intersection of West 65th Street and Franklin Avenue, when “out of 

nowhere,” Ford put her in a choke hold and dragged her from the street, along a fence, 

and behind a building. K.H. testified that Ford’s demeanor changed to being “vicious” 

and “violent.” He forced her down onto the ground. Ford strangled her and punched 

her in the face so hard that she lost consciousness more than once. 

{¶7} Ford ordered her to lower her pants and take one pant leg off and leave one 

on. Ford threatened to smash her face into the brick side of the building. Ford got on 

top of her and penetrated her vagina with his penis. K.H. testified that Ford was not 

wearing a condom and he ejaculated inside her vagina. Ford eventually stood up and 
told her not to move for five minutes. He “threw a couple dollars” at her and then left. 

K.H. laid on the ground for a few minutes because she was in physical pain. She then 

straightened herself up and began to walk home. On her way home, she flagged down 

police officers and told them what happened. The police officers took K.H. to Lutheran 

Hospital, where she was treated for her injuries and where medical professionals 

completed a sexual assault kit examination. Samples were collected and included as part 

of a rape kit, which was sealed and sent for testing years later. K.H. had bruising to her 

eyes, and bruises on both hands, and a blister on her finger from hanging on to the fence. 

{¶8} K.H. followed up with the Cleveland Police Department and looked through 

mug shots trying to identify her attacker, but was unsuccessful. In 2015, Investigator 

Sahir Hasan made contact with K.H. and interviewed her. 

{¶9} Melissa Zielaskiewicz (“Zielaskiewicz”), a forensic scientist in the biology 

DNA section at BCI, testified that the vaginal swabs from K.H.’s rape kit contained a full 

male DNA profile consistent with Ford’s DNA. Zielaskiewicz testified that the odds of 

the DNA profile on the vaginal swabs and the anal swabs being someone other than Ford 

is “one in 12 quadrillion, 120 trillion unrelated individuals.” Zielaskiewicz’s results 

were technically reviewed by two other scientists at BCI who agreed with her findings. 

Sexual Assault of W.W. 

{¶10} W.W. did not testify at trial. W.W. was an international student from 

China, attending Cleveland State University (“CSU”) at the time of the attack. On April 

16, 2000, Officer Alanna Smith (“Officer Smith”), who was employed by Cleveland State 
University Police Department at the time, was dispatched to Stilwell Hall, which housed 

the engineering department. Officer Smith spoke with W.W., who described her 

assailant as a black male, approximately 25-35 years of age, 5’10” to 6” tall, with short 

hair and a mustache. The victim described the male as wearing gray clothing. Officer 

Smith transported W.W. to St. Vincent’s Charity Hospital for a sexual assault 

examination. 

{¶11} Dr. Therese Wolpaw, M.D. (“Dr. Wolpaw”) testified that she treated W.W. 

on April 16, 2000. At the time, she was employed as an emergency room physician at St. 

Vincent’s Charity Hospital. In treating W.W., Dr. Wolpaw took a history from W.W. as 

follows: 

This is a 27 year-old otherwise healthy woman who was well until this 

afternoon when she states that she was raped. She was working at [CSU] 

where she is an engineering student. She went to the restroom and was 

followed by a man into the restroom. She states that he told her that he 

wanted to have sex with her and that if she refused he would hurt her and 

kill her. 

She states that she fought him and that he hit her in the head, nose, neck, 

right eye and stomach. She continued to fight him but he was much bigger 

than she was. Consequently he went on and penetrated her vagina. She 

states that he wore a condom. She does not recall any oral penetration but 

thinks that there may have been some rectal contact. At this present time 

she has a great deal of pain along the back right side of her head, over her 

nose, along her neck and in her right eye. She states that her vision is not 

disturbed but her eye is painful. 

{¶12} Dr. Wolpaw conducted a physical examination and noted W.W.’s injuries. 

Computer tomographic (“CT”) scans revealed that W.W. suffered multiple fractures to 

her nose, and a fracture to the socket of her right eye. She had abrasions to her right eye, 
nose, and ears, and blood along her inner thighs. Dr. Wolpaw testified that W.W.’s 

facial injuries were consistent with being punched in the face. Dr. Wolpaw collected a 

sexual assault kit from W.W. W.W.’s clothing was also collected, which consisted of 

one short-sleeve sweater, one long-sleeve sweater, one bra, and one pair of socks. 

{¶13} Sergeant Richard Flaherty (“Sergeant Flaherty”), a detective with the CSU 

Police Department, was employed as a patrol officer at CSU in 2000. He responded to 

the scene of the incident. Sergeant Flaherty received the radio broadcast of the suspect 

described as an African-American male, 5’10”, muscular build, and with gray clothing. 

As part of his investigation, Sergeant Flaherty learned that W.W. was a student at CSU 

and Ford had been a student at CSU between 1988 and 1993. 

{¶14} Andrew Sawin (“Sawin”), a forensic scientist in the DNA section of the 

BCI, testified that testing detected a male DNA profile on a cutting from W.W.’s shirt. 

Lynda Evelyth (“Evelyth”), a forensic scientist with the BCI, compared the DNA profile 

from W.W.’s shirt with the known standard of Ford’s DNA. Evelyth testified that Ford 

could not be excluded as a contributor of the DNA from the shirt and based upon the 

database, the proportion of the population that could not be excluded is 1 in 1,441,000 

unrelated individuals. Evelyth concluded that the DNA profile on W.W.’s shirt matched 

Ford’s DNA. Evelyth’s conclusions were technically reviewed by two other scientists at 

BCI, who agreed with her findings. 

Sexual Assault of A.W. 
{¶15} A.W. testified that sometime after midnight on July 24, 2000, she was 

driving down Clark Avenue intending to go to a corner store near West 56th Street to buy 

cigarettes. She was 19 years old at the time. A.W. parked her car on Clark Avenue, in 

front of Clark Elementary School, and walked over to the front of the store. As she 

approached the store, she realized that it was closed. She turned around and started 

walking back to her car when a stranger, later identified as Ford, approached her. Ford 

said something to her. A.W. does not remember exactly what he said, but remembers 

that Ford initially spoke to her in a friendly tone. Suddenly, Ford became aggressive and 

grabbed her. He pulled A.W. across the street and onto the property of Clark Elementary 

School. He dragged her around the corner of the building to a grassy area behind the 

school. 

{¶16} Ford placed his hand around A.W.’s throat and covered her mouth with his 

other hand. He “choke slammed” her to the ground and put his weight on top of her. 

A.W. testified that Ford “was trying to calm me down so he could remove his hand from 

my mouth without having to worry about me screaming.” A.W. recalled 

“hyperventilating” and “ freaking out.” Ford ordered A.W. to undress and lay her clothes 

on the grass as if she was putting a blanket down. A.W. complied because she feared 

that if she did not, she would not be able to get away, and Ford would hurt her. Ford 

forced A.W. to perform fellatio on him and then he penetrated her vagina with his penis. 

A.W. cried while she was being raped. She does not remember Ford using a condom. 
{¶17} After Ford finished, he instructed A.W. to keep quiet and stay where she 

was at. He left with her pants. After he fled, A.W. waited until she felt he was far 

enough away and grabbed her remaining clothes. She found her pants on a guardrail, put 

them on and came out from behind the school. She got in her car and drove around 

trying to find him. 

{¶18} Unable to locate Ford, A.W. then drove to the Cleveland division of police 

second district police station. She was taken to MetroHealth Medical Center where she 

consented to a sexual assault kit examination that included, among other things, 

collections from her vagina. Later in July 2000, A.W. responded to the Cleveland Police 

Department, Sex Crimes Unit, where she looked through mug shots in vain, trying to 

identify her attacker. She eventually stopped going back to look through mug books 

because her attacker’s face was a blur to her, and she did not want to make a mistake and 

identify the wrong person. A.W. did not hear anything else about her case for 15 years, 

until she was contacted by Investigator Hasan. 

{¶19} Dr. Mohak Dave, M.D. (“Dr. Dave”), testified that he was employed by 

MetroHealth Medical Center as an emergency room physician when A.W. came to the 

hospital on July 24, 2000. Upon arrival at the E.R., A.W. was “tearful, tremulous, [and 

had] red marks [on her] neck.” Dr. Dave described A.W.’s neck injuries as “abrasions in 

a ring fashion to the neck,” which was consistent with someone having grabbed A.W. 

around her neck. 
{¶20} A.W. told Dr. Dave that she was forced to perform oral and vaginal 

intercourse with an unknown male about one hour prior to arriving at the hospital. Dr. 

Dave treated A.W. and collected specimens from her body as part of a sexual assault kit 

examination, including collections from her vagina. 

{¶21} Evelyth testified that she analyzed the vaginal swabs and the anal swabs 

from A.W.’s rape kit and discovered a full male DNA profile consistent with Ford’s 

DNA. Evelyth communicated her confidence in the DNA match with the odds of the 

DNA profile on the vaginal swabs and the anal swabs being someone other than Ford is 

“one in 12 quadrillion, 120 trillion” unrelated individuals. Evelyth detected another male 

DNA profile on A.W.’s underwear, which belonged to A.W.’s boyfriend at the time of 

her attack. Evelyth’s conclusions were technically reviewed by two other scientists at 

BCI, who agreed with her findings. 

Ford’s Defense 

{¶22} Dr. Barry Layton, Ph.D. (“Dr. Layton”) is a neuropsychologist and was the 

sole witness for the defense. Dr. Layton testified that he evaluated Ford “in an attempt to 

understand [Ford’s] mental state at the time of the rapes and associated crimes that are the 

subject of this trial.” In preparing his report for this case, Dr. Layton reviewed: Ford’s 

medical records from the Ohio Department of Rehabilitation and Correction, his own 

neuropsychological evaluation that he conducted in 2006, a 2005 competency evaluation, 

a 2006 sanity evaluation, a 2006 sexual predator evaluation, a March 2016 competency 

and sanity report, and an October 2016 sanity evaluation. 
{¶23} Dr. Layton testified that he conducted a clinical interview of Ford and 

administered several psychological tests that resulted in “reasonably normal” findings. 

When Dr. Layton interviewed Ford in 2006, he took a “history” from Ford, wherein Ford 

told Dr. Layton about his life. When Dr. Layton conducted his 2017 report, he took a 

much more extensive history from Ford. As a result, Dr. Layton uncovered more detail 

about Ford’s early upbringing, childhood, and adulthood. Dr. Layton also got more 

detail as to Ford’s history in the prison system after 2006 until the present. According to 

Layton, Ford viewed the earth as a construct where “orchestrators” poisoned his food and 

attempted to kill him. The poisoning caused him horrible pains in his body, especially 

his abdomen. Ford identified the “orchestrators” as women who not only poisoned him, 

but also prevented Ford from receiving the therapy that he needed to get rid of the pain. 

According to Ford, the therapy was sex, so Ford used sex as means of therapy for his 

condition. Dr. Layton testified that Ford suffered from “acute psychosis” when he 

committed the rapes. 

State’s Rebuttal Witness 

{¶24} The state called Dr. Thomas Swales, Ph.D. (“Dr. Swales”) as a rebuttal 

witness to Dr. Layton. Dr. Swales testified that psychosis is a psychiatric symptom, not a 

diagnosis. On cross-examination, the state questioned Dr. Layton about malingering (a 

gross exaggeration of symptoms of illness to avoid consequence) and if Ford was 

malingering. Dr. Swales testified that for every neuropsychological case evaluation, 
some test for malingering is always administered. Dr. Swales further testified that he has 

administered malingering tests hundreds of times. 

{¶25} Dr. Swales examined Ford and conducted evaluations to determine Ford’s 

competency to stand trial and Ford’s sanity at the time of the act. Dr. Swales testified 

that Dr. Layton’s report was not clear on what type of evaluation Dr. Layton was 

conducting — evaluation for competency or sanity at the time of the act. Dr. Swales 

testified, “it seemed [Dr. Layton’s report] gloss[ed] over a great deal of evidence that [he] 

had reviewed that for some reason Dr. Layton had not reviewed.” Dr. Swales further 

testified that he had some concerns about Dr. Layton’s report. First, whether all of the 

information available in the test data was included in Dr. Layton’s report. Second, 

Dr. Swales testified that Dr. Layton diagnosed Ford with a delusional disorder (a 

completely irrational belief because of an underlying medical condition), yet Dr. Swales 

did not find any evidence in Ford’s medical records of a medical condition. Third, Dr. 

Swales was concerned with why Dr. Layton diagnosed Ford with a delusion disorder, but 

did not see any analysis of why Ford “would have a delusion that would account for him 

allegedly raping women. It didn’t make sense.” 

{¶26} Dr. Swales’s review of the examinations and evaluations show a concern 

that Ford was malingering psychiatric problems. Dr. Swales opined that Ford did not 

have a severe mental disease at the time of the offenses. He further opined that Ford 

knew the wrongfulness of his actions at the time of the offenses. Dr. Swales believed 

that Ford has a malingered psychosis as opposed to a true psychosis. Most people with 
psychotic disorders are not able to go to school and not able to work because of the 

dysfunction the psychosis creates. 

{¶27} At the conclusion of trial, the jury found the defendant guilty of rape as 

charged in Counts 1, 3, and 5. The jury also found the defendant guilty of kidnapping as 

charged in Counts 2, 4, and 6. 

{¶28} The trial court held a sentencing hearing in September 2017, as well as the 

sexual predator hearing. The court found Ford to be a sexually violent predator. With 

regard to his sentence, the court determined that Counts 1 and 2 do not merge; and Counts 

5 and 6 do not merge. The trial court found Counts 3 and 4 merge. For purposes of 

sentencing, the state elected to proceed on Count 3. The trial court sentenced Ford to a 

sentence of 20 years to life on each remaining count and ran them each consecutively for 

an aggregate sentence of 100 years to life. This sentence was run consecutive to Ford’s 

existing sentences. 

{¶29} Ford now appeals, raising the following six assignments of error for review. 

Assignment of Error One 

Defense counsel provided constitutionally ineffective assistance by raising a 

mental state defense that inculpated [Ford] and revealed his multiple prior 

convictions for rapes to the jury, causing extreme prejudice. 

Assignment of Error Two 

The trial court erred in failing to grant defense counsel’s motion for mistrial 

after the State cross-examined a witness regarding [Ford’s] criminal record. 

Assignment of Error Three 
The trial court violated [Ford’s] Sixth Amendment rights in failing to 

dismiss counts related to an alleged victim that did not appear in court to 

testify. 

Assignment of Error Four 

The trial court erred in allowing irrelevant testimony from [Dr.] Wolpaw 

and [Sergeant] Flaherty regarding the details of [W.W.’s] attack and 

attacker, which had far greater chance to be prejudicial than probative. 

Assignment of Error Five 

Insufficient evidence supported [Ford’s] convictions as to W.W. 

Assignment of Error Six 

The manifest weight of the evidence did not support [Ford’s] convictions as 

to W.W. 

Ineffective Assistance of Counsel 

{¶30} In the first assignment of error, Ford argues that defense counsel was 

ineffective for presenting the “psychosis defense,” which Ford claims is not recognized in 

Ohio. Ford claims this defense prejudicially harmed him because his mental health 

history was introduced, which included his prior convictions. 

{¶31} In order to establish ineffective assistance of counsel, Ford must 

demonstrate that: (1) counsel’s performance fell below an objective standard of 

reasonable representation, and (2) he was prejudiced by that performance. Strickland v. 

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice 

is established when the defendant demonstrates “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 undermine confidence in the 

outcome.” Id. at 694. 

{¶32} A review of the record in the instant case reveals that Ford sought to put his 

mental status before the jury. At a pretrial prior to when the trial was set to commence 

on October 17, 2016, Ford requested a continuance to further an opportunity to obtain 

medical records that would assist with his defense. The trial court initially indicated that 

it would not allow a continuance and indicated that trial would start as scheduled. Ford 

told the court that he did not want to participate in the trial if the trial court was not going 

to give him a fair opportunity to present his case. Trial counsel renewed his request for 

a continuance. 

{¶33} After further consideration, the trial court granted Ford’s request and 

continued the trial to allow Ford to explore the condition of involuntary intoxication or 

some other medical condition that could have some impact. Ford was afforded an 

opportunity to retain another expert at the state’s expense and was allowed the 

opportunity to put Dr. Layton on the stand. While on the stand, Dr. Layton testified that 

Ford suffered from “acute psychosis” and also testified that Ford had prior rape 

convictions. Dr. Layton’s report, which was introduced into evidence, also referenced 

the convictions. 

{¶34} By calling Dr. Layton as a defense witness, Ford was provided with the 

opportunity he requested — testimony that would assist with his defense. “‘[A] 

reviewing court may not second-guess decisions of counsel that can be considered matters 
of trial strategy. State v. Smith (1985), 17 Ohio St.3d 98, 17 477 N.E.2d 1128.’” State 

v. Hines, 8th Dist. Cuyahoga No. 90125, 2008-Ohio-4236, ¶ 21, quoting State v. Baker, 

159 Ohio App.3d 462, 466, 2005-Ohio-45, 824 N.E.2d 162 (2d Dist.). Indeed, 

“‘[d]ebatable strategic and tactical decisions may not form the basis of a claim of 

ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy was 

available.”’ Id., quoting Baker. 

{¶35} Here, Ford fails to argue what would have happened had defense counsel 

decided to forego any expert testimony. Moreover, there was overwhelming evidence of 

Ford’s guilt through the DNA evidence. Zielaskiewicz communicated her confidence in 

the DNA match with respect to K.H. with the odds of the DNA profile on the vaginal 

swabs and the anal swabs being someone other than Ford as “one in 12 quadrillion, 120 

trillion unrelated individuals.” Evelyth communicated her confidence in the DNA match 

with respect to A.W. with the odds of the DNA profile on the vaginal swabs and the anal 

swabs being someone other than Ford as “one in 12 quadrillion, 120 trillion unrelated 

individuals.” Evelyth further testified that Ford could not be excluded as a contributor of 

the DNA from W.W.’s shirt and, based upon the database, the proportion of the 

population that could not be excluded is 1 in 1,441,000 unrelated individuals. Thus, we 

cannot say defense counsel was ineffective because the defense Ford wanted to pursue 

was unsuccessful. 

{¶36} The first assignment of error is overruled 

Motion for Mistrial 
{¶37} In the second assignment of error, Ford argues the trial court should have 

declared a mistrial after the state questioned Dr. Layton about Ford’s previous rape 

convictions. 

{¶38} “The decision whether to grant a mistrial rests within the sound discretion of 

the trial court and will not be disturbed absent an abuse of discretion.” State v. Rucker, 

8th Dist. Cuyahoga No. 105628, 2018-Ohio-1832, ¶ 18, citing State v. Treesh, 90 Ohio 

St.3d 460, 480, 2001-Ohio-4, 739 N.E.2d 749; Crim.R. 33. The granting of a mistrial is 

necessary only when a fair trial is no longer possible. Id., citing State v. Franklin, 62 

Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). 

{¶39} In the instant case, Ford called only one witness to testify at trial — Dr. 

Layton. On direct examination, Dr. Layton testified extensively regarding his first 

evaluation of Ford in 2006. He further testified that he met with Ford eight times in 

connection with the instant case between December 2016 and a week prior to trial. Dr. 

Layton testified that his purpose in meeting with Ford was to understand Ford’s mental 

state at the time of the rapes. Dr. Layton testified that he took a history from Ford, 

wherein Ford described his life in detail to Dr. Layton. Defense counsel asked Dr. 

Layton to describe the statements Ford made during his 2017 interviews. Dr. Layton 

even testified that he believed Ford’s statements to him were trustworthy. Dr. Layton 

testified on direct examination that all of this information came directly from Ford’s 

statements and the results of the previous tests he administered on Ford. 
{¶40} Through Dr. Layton’s testimony, Ford was essentially allowed to testify 

without taking the stand. Defense counsel elicited from Dr. Layton numerous and 

extensive statements made by Ford himself, on topics such as his childhood, his memories 

of the crimes committed in the instant case, and “the orchestrators” — the purported 

cause of his behavior. Defense counsel also elicited testimony from Dr. Layton that he 

believed Ford’s statements. 

{¶41} Thereafter, on cross-examination, the state sought to impeach Ford’s 

statements under Evid.R. 806. Evid.R. 806 permits the impeachment of a declarant when 

the “hearsay statement, or a statement defined in Evid.R. 801(D)(2), (c), (d), or (e), has 

been admitted in evidence, the credibility of the declarant may be attacked, and if attacked 

may be supported, by any evidence that would be admissible for those purposes if 

declarant had testified as a witness.” Id. at (A). In conjunction with Evid.R. 806, 

Evid.R. 609 allows the state to attack the credibility of a witness by evidence of a prior 

conviction for the purpose of impeaching that witness. 

{¶42} In the instant case, at sidebar, the state reasoned that impeachment of Ford 

was proper because defense counsel had effectively elicited Ford’s testimony through Dr. 

Layton. As a result, Ford’s own credibility became relevant, especially since Dr. Layton 

testified he believed Ford. The trial court agreed with the state and allowed it to question 

Dr. Layton regarding whether he was aware that Ford had various convictions. Dr. 

Layton testified that he was not “specifically aware” of those convictions, despite 
previously testifying that he prepared his 2006 report after Ford had been convicted of 

eight separate rapes. 

{¶43} The trial court found that: 

[Dr. Layton] through his direct testimony, did in effect tell the jury what 

[Ford] told him about his history, about his education, about his 

employment, about his childhood, many things, so in effect through Dr. 

Layton [Ford] was in fact testifying. He said he only knew about his 

education, childhood, et cetera, a good portion of it from that time line that 

[Ford] supplied to him. He read verbatim to the jury. So in effect since 

he, [Ford], testified through Dr. Layton, [the state] can then attempt to 

impeach [Ford] through Dr. Layton. 

{¶44} We agree. Ford essentially testified without taking the stand and could be 

impeached. Ford’s strategy was to introduce his excuses for his conduct. In light of the 

foregoing, we cannot say the trial court abused its discretion when it did not declare a 

mistrial after the state questioned Dr. Layton about Ford’s prior rape convictions. 

{¶45} Therefore, the second assignment of error is overruled. 

Confrontation Clause 

{¶46} In the third assignment of error, Ford argues that his right under the Sixth 

Amendment to confront his witness was violated when the trial court did not dismiss the 

counts relating to W.W., who did not testify at trial. Ford challenges testimony from Dr. 

Wolpaw who treated W.W. and Sergeant Flaherty. Ford contends that the statements 

made by W.W. to Dr. Wolpaw and Sergeant Flaherty were testimonial and subject to the 

Confrontation Clause. 

{¶47} The Sixth Amendment’s Confrontation Clause provides that “[i]n all 

criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the 
witnesses against him * * *.” The United States Supreme Court has interpreted this to 

mean that the admission of an out-of-court statement of a witness who does not appear at 

trial is prohibited by the Confrontation Clause if the statement is testimonial, unless the 

witness is unavailable and the defendant had a prior opportunity to cross-examine the 

witness. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 

(2004). 

{¶48} At issue in the instant case is whether W.W.’s statements contained in her 

medical records and her description of Ford were testimonial in nature and therefore 

inadmissible under the Sixth Amendment, or whether they were nontestimonial and 

admissible 

{¶49} Crawford did not define the term “testimonial,” but stated generally that the 

core class of statements implicated by the Confrontation Clause includes statements 

“made under circumstances which would lead an objective witness reasonably to believe 

that the statement would be available for use at a later trial.” Id. at 52. 

{¶50} In State v. Stahl, 111 Ohio St.3d 186, 187, 2006-Ohio-5482, 855 N.E.2d 

834, the Ohio Supreme Court considered whetherhearsay statements by an adult rape 

victim to a nurse working in a specialized medical facility for sexual assault victims were 

admissible when the victim was not available to testify at trial. The court adopted the 

objective-witness test outlined in Crawford for out-of-court statements made to 

non-law-enforcement personnel, and concluded that in determining whether a statement is 

testimonial for Confrontation Clause purposes, courts should focus on the expectation of 
the declarant when making the statement. Id. at paragraph two of the syllabus. 

Applying this objective-witness test, the Stahl court found that the victim’s statements 

were made to a medical professional at a medical facility for the primary purpose of 

receiving medical treatment and not investigating past events related to criminal 

prosecution. Id. at ¶ 25. The court held that the statements made by the rape victim to 

the nurse were nontestimonial because the victim “could have reasonably believed that 

although the examination conducted at the [sexual assault] unit would result in scientific 

evidence being extracted for prosecution purposes, the statement would be used primarily 

for health-care purposes.” Id. at ¶ 47. 

{¶51} In State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 

63, the Ohio Supreme Court held that the statements of a child victim of sexual assault 

made to doctors and counselors about how her father had sexually abused her were not 

testimonial and were admissible because they had been made to medical personnel in the 

course of medical diagnosis and treatment. The Muttart court held that “[s]tatements 

made to medical personnel for purposes of diagnosis or treatment are not inadmissible 

under Crawford, because they are not even remotely related to the evils that the 

Confrontation Clause was designed to avoid.” Id. The court also noted that “[t]he fact 

that the information gathered by the medical personnel in this case was subsequently used 

by the state does not change the fact that the statements were not made for the state’s 

use.” Id. at ¶ 62. See also State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 
N.E.2d 775, ¶ 41 (“Statements made for medical diagnosis and treatment are 

nontestimonial.”). 

{¶52} In this case, just as in Stahl and Muttart, the testimony of Dr. Wolpaw was 

admissible. Dr. Wolpaw’s primary purpose in speaking with W.W. was for treatment 

and diagnosis. Dr. Wolpaw testified that she took a history from W.W. to inform her 

treatment of W.W. and to prepare W.W. The statements made by W.W. were in response 

to questions by Dr. Wolpaw for the purposes of informing her treatment and preparing her 

patient. W.W. stated that she was followed by a man, later identified as Ford, into the 

restroom who told her that he wanted to have sex with her and that if she refused he 

would hurt her and kill her. W.W. fought with Ford and he hit her in the head, nose, 

neck, right eye and stomach. 

{¶53} A patient’s statements concerning how the alleged rape occurred can be 

relevant to show the “general character of the cause or external source thereof insofar as 

reasonably pertinent to diagnosis or treatment.” Evid.R. 803(4). W.W.’s statements 

about her rape were relevant for medical diagnosis and treatment because they guided 

medical personnel to the particular area(s) of the her body to be examined for injury, as 

well as indicate which areas may need more immediate treatment than others. State v. 

Bowleg, 8th Dist. Cuyahoga Nos. 100263 and 100264, 2014-Ohio-1433, ¶ 19, citing State 

v. Wallace, 3d Dist. Union No. 14-10-20, 2011-Ohio-1728, citing State v. Menton, 7th 

Dist. Mahoning No. 07 MA 70, 2009-Ohio-4640, ¶ 51 

(“the description of how the [sexual] assault took place, over how long of a 

period, how many times a person was hit, choked or penetrated, and what 

types of objects were inserted are all specifically relevant to medical 

treatment. They are part of the medical history. They are the reason for 

the symptoms. They let the examiner know where to examine and what 

types of injuries could be latent.”) 

{¶54} Accordingly, we find that the statements made by W.W. to Dr. Wolpaw are 

not testimonial because an objective witness under the same circumstances would not 
have reasonably believed that her statements would be used later for trial. Indeed, 

“questioning by a nurse or other medical professional during an emergency-room 

examination would appear to serve a primarily health-care-related function.” Stahl at ¶ 

47. 

{¶55} With regard to Sergeant Flaherty’s testimony, we note that his testimony 

was as to his involvement in the case. He stated that when he arrived on scene, he 

already had a description of a potential suspect. A suspect search was then conducted. 

He also learned that W.W. was a student at CSU at the time of the incident. Sergeant 

Flaherty’s testimony discussed his involvement of the case, his testimony was not 

hearsay, and therefore, it does not violate the Confrontation Clause. 

{¶56} Accordingly, the third assignment of error is overruled. 

Prejudicial Testimony 

{¶57} In the fourth assignment of error, Ford argues that the hearsay statements by 

W.W. to Dr. Wolpaw and the police were highly prejudicial and inadmissible under 

Evid.R. 403(A), which mandates the exclusion of relevant evidence “if its probative value 

is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, 

or of misleading the jury.” 

{¶58} We note that appellate courts review a trial court’s decision regarding the 

admission of any evidence under an abuse of discretion standard. State v. Norton, 8th 

Dist. Cuyahoga No. 102017, 2015-Ohio-2516, ¶ 19, citing State v. Sage, 31 Ohio St.3d 

173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. 
{¶59} In the instant case, Ford does not argue how the trial court abused its 

discretion in allowing Dr. Wolpaw’s testimony or the testimony of the police. As 

discussed above, Dr. Wolpaw’s testimony was proper under Evid.R. 803(4). The 

testimony was used to show the treatment of W.W. Additionally, with regard to Sergeant 

Flaherty’s testimony, his statements were not offered for the truth of the matter asserted, 

but were offered to explain the investigation. Therefore, the trial court did not abuse its 

discretion in allowing this evidence to be admitted at trial. 

{¶60} Accordingly, the fourth assignment of error is overruled. 

Sufficiency of the Evidence — W.W. 

{¶61} In the fifth assignment of error, Ford argues the state presented insufficient 

evidence to support the convictions involving W.W. because she did not testify at trial. 

{¶62} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460, 

2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the 

evidence as follows: 

Raising the question of whether the evidence is legally sufficient to support 

the jury verdict as a matter of law invokes a due process concern. State v. 

Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. 

 In reviewing such a challenge, “[t]he relevant inquiry is whether, after 

viewing the evidence in a light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of the crime 

proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 
259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. 

Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. 

{¶63} We are mindful that, in considering the sufficiency of evidence, a certain 

perspective is required. State v. Eley, 56 Ohio St.2d 169, 172, 383 N.E.2d 132 (1978). 

“This court’s examination of the record at trial is limited to a determination of whether 

there was evidence presented, ‘which, if believed, would convince the average mind of 

the defendant’s guilt beyond a reasonable doubt.’” Id., quoting Atkins v. State, 115 Ohio 

St. 542, 546, 155 N.E. 189 (1926). It is the minds of the jurors, rather than a reviewing 

court, that must be convinced. State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 

(1982). 

{¶64} Ford states that he incorporates “the fact and law regarding Crawford” and 

argues that there was insufficient evidence that Ford was the perpetrator. Our review of 

the evidence reveals otherwise. W.W.’s statements to the police and Dr. Wolpaw and the 

photographic evidence of her injuries indicate that she was beaten and raped. 

Furthermore, the DNA evidence collected during her sexual assault examination matched 

Ford’s DNA. This evidence, when viewed in a light most favorable to the state, is 

sufficient to sustain Ford’s convictions relating to W.W. See State v. Echols, 8th Dist. 

Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 30-35 (where this court considered the 

medical record evidence of a sexual assault victim in rejecting the defendant’s claim that 

there was insufficient evidence to convict the defendant.) 

{¶65} Thus, the fifth assignment of error is overruled. 
Manifest Weight of the Evidence — W.W. 

{¶66} In the sixth assignment of error, Ford argues his convictions, as they relate 

to W.W., are against the manifest weight of the evidence. 

{¶67} In contrast to a sufficiency argument, a manifest weight challenge questions 

whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 

92266, 2009-Ohio-3598, ¶ 13, citing Thompkins, 78 Ohio St.3d at 390, 1997-Ohio-52, 

678 N.E.2d 541. The Ohio Supreme Court in State v. Wilson, 113 Ohio St.3d 382, 

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, stated: 

[T]he reviewing court asks whose evidence is more persuasive — the 

state’s or the defendant’s? * * * “When a court of appeals reverses a 

judgment of a trial court on the basis that the verdict is against the weight of 

the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees 

with the factfinder’s resolution of the conflicting testimony.” [Thompkins

at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 

L.Ed.2d 652. 

{¶68} Moreover, an appellate court may not merely substitute its view for that of 

the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its 

way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio 

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight 

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily 

against the conviction.’” Id., quoting Martin. 
{¶69} Ford contends that he was deprived of the opportunity to impeach W.W.’s 

credibility because she did not testify at trial. We find his argument unpersuasive. As 

stated above, the jury heard that W.W. was followed by Ford into the restroom and then 

brutally raped. The DNA evidence in the sexual assault kit matched Ford’s DNA. 

Based on this evidence, we cannot say that the “jury lost its way” and this is the 

exceptional case in which the evidence weighs heavily against the conviction. 

{¶70} Accordingly, the sixth assignment of error is overruled. 

{¶71} Judgment is affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable 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. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MARY EILEEN KILBANE, PRESIDING JUDGE 

EILEEN T. GALLAGHER, J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR