[Cite as State v. Martin, 2014-Ohio-1902.]

COURT OF APPEALS 

MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. John W. Wise, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. 13CA0004 

 : 

DAVID G. MARTIN : 

 : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of 

Common Pleas, Case No. 2012-CR0061 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: May 1, 2014 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

CHARLES HOWLAND ERIC M. HEDRICK 

MORROW COUNTY PROSECUTOR OHIO PUBLIC DEFENDER OFFICE 

K. DAVID HOMER 250 E. Broad St., Suite 1400 

60 East High Street Columbus, OH 43215 

Mt. Gilead, OH 43338 

 
Morrow County, Case No.13CA0004 2 

Delaney, J. 

{¶1} Appellant David G. Martin appeals from the June 6, 2013 Judgment Entry 

of Sentence of the Morrow County Court of Common Pleas. Appellee is the state of 

Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} C.M. was 13 years old at the time of these events and had just finished 

seventh grade. She lived with her mother, T.M., and had no contact with her father. 

She and T.M. needed a new place to live. T.M.’s brother suggested a farm in Morrow 

County where T.M. and C.M. could live rent-free in exchange for taking care of the 

landlady’s llamas and alpacas. T.M. and C.M. were supposed to live in a trailer on the 

property. 

{¶3} Appellant was already living in a house on the property with three of his 

children, ages 2, 4, and 6. Appellant was not employed but did work around the farm. 

Appellant’s estranged wife visited sometimes to exchange the children. Every other 

week the children were at the house with appellant. 

{¶4} T.M. and C.M. moved onto the property in the spring of 2011, around the 

beginning of June. T.M. and C.M. did not live in the trailer; at appellant’s suggestion, 

they moved into the house. T.M. shared a bedroom with appellant and C.M. had a 

bedroom of her own. 

{¶5} T.M. continued to travel to her job at a nursing home in Ashland County; 

she would leave the house at 4:45 a.m. to work a shift from 6:00 a.m. until 2:00 p.m., 

although she sometimes worked later. She would return to the house around 3:00 or 
Morrow County, Case No.13CA0004 3 

4:00 p.m. In the meantime, C.M. was alone with appellant and, every other week, his 

three small children. 

C.M. Testifies to Repeated Forced Sexual Contact 

{¶6} C.M. testified around the end of June, appellant began coming into her 

bedroom after her mother left for work. She stated appellant would get into her bed and 

have sexual intercourse with her against her will. C.M. began locking her bedroom door 

but testified appellant opened the door with a butter knife or credit card. Based upon 

her mother’s work schedule, C.M. estimated this occurred 43 times over the summer. 

{¶7} C.M. did not tell her mother or anyone else about the sexual intercourse 

with appellant. She read a written statement she prepared for court stating she didn’t 

tell because she was afraid of appellant and thought no one would believe her; she 

testified she didn’t tell because she didn’t want appellant to lose his children. 

{¶8} On August 26, 2011, T.M. went to work but left early and returned to the 

house. She found all the doors locked and at first was unable to get in the house. 

Upon entering she couldn’t find C.M. and eventually found her in appellant’s bed, with 

appellant. C.M. told T.M. she came into bed with appellant because she was afraid of a 

thunderstorm and appellant, purportedly asleep, awakened and was “shocked” to find 

C.M. in bed with him. 

{¶9} T.M. acknowledged she did C.M.’s laundry including her sheets and she 

observed white stains on the sheets but didn’t find it unusual. 

{¶10} On September 2, 2011, T.M. and C.M. moved out of the house because, 

according to T.M., appellant brought alcoholic beverages into the house. They moved 

in with a relative. C.M. ran away three times and was found with appellant each time. 
Morrow County, Case No.13CA0004 4 

{¶11} The last time C.M. ran away was on September 19, 2011. T.M. received a 

call from C.M.’s school stating she was absent, and T.M. learned appellant had picked 

her up from school that day when she called him to do so. Appellant and his estranged 

wife initially took C.M. to the department of human services in Mt. Gilead but were told 

she would have to go to Richland County instead. Appellant declined to accompany his 

wife and C.M. to Richland County Children’s Services. 

{¶12} C.M. initially disclosed the rapes to a social worker on September 19, 

2011 at Richland County Children’s Services. She was examined by a SANE nurse at 

Mansfield MedCentral and was discovered to be ten weeks pregnant. Her child was 

born on April 4, 2012, and paternity testing confirmed appellant is the father of the child. 

The Defense Case 

{¶13} Appellant’s estranged wife testified on his behalf at trial and explained she 

and appellant took C.M. to Children’s Services after the third time she ran away 

because C.M. begged them to; she was desperate to get away from her mother. The 

wife testified she never saw any inappropriate behavior between appellant and C.M. 

{¶14} Appellant testified on his own behalf at trial. He said C.M. listened to him 

more than her mother and T.M. resented him as a result. He claimed no one ever told 

him how old C.M. was until after he was arrested, and he believed her to be 15 or 16 

because her mother asked him to teach her how to drive because she would be getting 

her license soon. He claimed he had sexual intercourse with C.M. only once: one time, 

in late June, he awoke to find C.M. in the midst of performing a sexual act on top of him. 

He was under the effect of medication at the time and didn’t tell anyone out of 

embarrassment. He sought to distance himself from C.M. afterward and couldn’t handle 
Morrow County, Case No.13CA0004 5 

the stress of her running away and showing up at his house repeatedly, so he and his 

estranged wife decided to take her to children’s services. They took her first to the Mt. 

Gilead office and then learned she would have to go to Richland County; the only 

reason appellant did not accompany her there is because he had to go home to feed 

the animals, not because he was afraid of discovery of the rapes. 

Morrow County Court of Common Pleas Case No. 2011-CR-0098 

{¶15} On October 21, 2011, appellant was charged by indictment with one count 

of unlawful sexual conduct with a minor pursuant to R.C. 2907.04, the victim being 13 

years of age but less than 16 years of age, a felony of the third degree; and one count 

of rape pursuant to R.C. 2907.02(A)(1)(c), a felony of the first degree. Appellant 

appeared at initial appearance on October 25, 2011 with retained counsel, entered 

pleas of not guilty, and the matter was set for jury trial on December 20, 2011. 

{¶16} Appellant duly filed a demand for discovery and a motion for bill of 

particulars and appellee responded. Appellee’s bill of particulars filed December 8, 

2011 states regarding Count I, unlawful sexual conduct with a minor: “Defendant 

engaged in sexual intercourse with CM. CM was 13 years of age at the time. CM is 

now pregnant.” Regarding Count II, rape, the bill of particulars states the same and 

adds, “CM has a learning disability and struggles with comprehension. CM’s ability to 

consent to sexual intercourse with the defendant was impaired by her disability. 

Defendant, who was living with CM and her mother, was aware of CM’s disability. CM 

is pregnant.” 

{¶17} On December 12, 2011, defense trial counsel filed a motion for 

continuance asking the court to continue the “Change of Plea Hearing” scheduled for 
Morrow County, Case No.13CA0004 6 

December 20, 2011 because “[a]dditional time is needed to prepare for the case.” The 

trial court granted the motion to continue and ruled the “Change of Plea” date was 

continued until February 6, 2012. 

{¶18} On January 30, 2012, appellee filed a Motion stating: 

[Appellee] moves this Court to dismiss the above captioned case 

without prejudice. The reason for this request is that the State 

wishes to obtain a DNA sample for evidence purposes from the 

baby the victim is carrying. The victim is not due to have the child 

until April 2012. The State will refile the charges upon receiving the 

results of the DNA test. 

{¶19} Also on January 30, 2012, appellant filed a “Motion to Waive Speedy Trial 

Right,” waiving appellant’s right to a speedy trial and stating the following in support: 

“[Appellant] wants to waive his Sixth Amendment Constitutional Right to a speedy trial. 

The reason for the requests (sic) is that the defendant’s counsel needs additional time 

to interview witnesses and to prepare for trial. A continuance is requested. This is the 

first continuance.” 

{¶20} Finally, also on January 30, 2012, the trial court filed a Journal Entry 

dismissing the case without prejudice. 

{¶21} The trial court granted the motion to waive appellant’s right to speedy trial 

on January 31, 2012. 
Morrow County, Case No.13CA0004 7 

Morrow County Court of Common Pleas Case No. 2012-CR-0061 

{¶22} On May 24, 2012, appellant was indicted upon one count of unlawful 

sexual conduct with a minor pursuant to R.C. 2907.04, a felony of the third degree, and 

one count of rape pursuant to R.C. 2907.02(A)(1)(c), a felony of the first degree. 

{¶23} Appellant’s whereabouts were now unknown and appellee sought a pen 

register trap and trace device to track appellant’s movements through his Facebook 

account, which was filed on August 10, 2012. 

{¶24} The record indicates appellant was eventually found in Montana and 

executed a waiver of extradition in that state on August 16, 2012. 

{¶25} On September 14, 2012, appellant appeared before the trial court at initial 

appearance and entered pleas of not guilty. A jury trial was scheduled for October 22, 

2012. 

{¶26} On October 1, 2012, appellee filed a superseding indictment adding a 

third count of sexual battery pursuant to R.C. 2907.03(A)(5), a felony of the third 

degree. 

{¶27} On October 18, 2012, appellant waived his right to speedy trial in 

conjunction with a motion to continue the trial, supported by appellant’s assertion 

“counsel needs additional time to interview witnesses and to prepare for trial.” The 

resulting Order for Continuance states the pretrial and trial dates are “to be determined” 

and the arraignment on the superseding indictment is October 23, 2012. 

{¶28} On January 29, 2013, another superseding indictment was filed. Counts I 

through XXX consist of thirty counts of rape pursuant to R.C. 2907.02(A)(2), all felonies 
Morrow County, Case No.13CA0004 8 

of the first degree. Appellant entered pleas of not guilty and the matter was scheduled 

for jury trial on April 15, 2013. 

{¶29} The matter proceeded to trial by jury. Appellant was found guilty upon 

Counts II and XV and not guilty of the remaining counts. Appellant was sentenced to 

two consecutive prison terms of 8 years each and was classified as a Tier III sex 

offender. 

{¶30} Appellant now appeals from the April 30, 2013 judgment entry of 

conviction and sentence. 

{¶31} Appellant raises two assignments of error: 

ASSIGNMENTS OF ERROR 

{¶32} “I. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF 

COUNSEL IN VIOLATION OF MR. MARTIN’S RIGHTS UNDER THE FIFTH, SIXTH, 

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, 

AND SECTIONS 10 AND 16, ARTICLE I, OF THE OHIO CONSTITUTION.” 

{¶33} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND 

DENIED MR. MARTIN A FAIR TRIAL AND DUE PROCESS OF LAW WHEN IT ASKED 

DETECTIVE GIBSON HER OPINION ON WHETHER MR. MARTIN RAPED C.M. AND 

PROVIDED NO CURATIVE INSTRUCTION TO THE JURY REGARDING DETECTIVE 

GIBSON’S ANSWER, IN VIOLATION OF MR. MARTIN’S FIFTH, SIXTH, AND 

FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES 

CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO 

CONSTITUTION.” 
Morrow County, Case No.13CA0004 9 

ANALYSIS 

{¶34} In his first assignment of error, appellant asserts he received ineffective 

assistance of counsel. We disagree. 

{¶35} To succeed on a claim of ineffectiveness, a defendant must satisfy a twoprong test. Initially, a defendant must show that trial counsel acted incompetently. See, 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such 

claims, “a court must indulge a strong presumption that counsel's conduct falls within 

the 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.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 

101, 76 S.Ct. 158 (1955). 

{¶36} “There are countless ways to provide effective assistance in any given 

case. Even the best criminal defense attorneys would not defend a particular client in 

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted 

“outside the wide range of professionally competent assistance.” Id. at 690. 

{¶37} Even if a defendant shows that counsel was incompetent, the defendant 

must then satisfy the second prong of the Strickland test. Under this “actual prejudice” 

prong, 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.” 

Strickland, 466 U.S. at 694. 

Speedy Trial Issues 

{¶38} Appellant argues defense trial counsel was incompetent in failing to move 

for discharge on speedy trial grounds. His argument is premised upon assertions that 
Morrow County, Case No.13CA0004 10 

appellee’s dismissal of the case and subsequent re-indictment did not toll the time in 

which appellant was required to be brought to trial, and appellant’s waiver of his right to 

speedy trial was ineffective. We disagree with both premises. 

{¶39} It is well-established that for purposes of computing how much time has 

run against the state under R.C. 2945.71 et seq., the time period between the dismissal 

without prejudice of an original indictment and the filing of a subsequent indictment, 

premised upon the same facts as alleged in the original indictment, shall not be counted 

unless the defendant is held in jail or released on bail pursuant to Crim.R. 12(I). State 

v. Broughton, 62 Ohio St.3d 253, 581 N.E.2d 541 (1991), paragraph one of the syllabus. 

In this case, appellant was neither held in jail nor released on bail pending the 

subsequent superseding indictment and in fact fled to Montana in the interim. Upon reindictment, the 132 days chargeable to appellee in the original case were added to the 

speedy-trial time. We therefore find appellant’s right to a speedy trial was not violated. 

{¶40} Further, we are unwilling to find defense trial counsel’s time waivers in the 

original and subsequent cases to be ineffective under the circumstances of this case. 

Appellant urges us to evaluate the time waivers in a vacuum, separate and apart from 

the context of the entire case. Appellant knew upon the filing of the bill of particulars, if 

not before, appellee alleged the victim’s unborn child was his; the issue remaining was 

whether D.N.A. testing of the child could be effectuated before or after delivery. When it 

became clear antenatal D.N.A. testing was too risky to the health of the 13-year-old 

mother and the unborn child, appellee opted to dismiss and later re-indict, wagering that 

appellant might disappear in the meantime. Indeed he did. 
Morrow County, Case No.13CA0004 11 

{¶41} From the perspective of appellant’s defense trial counsel, however, we are 

equally unwilling to find counsel’s acknowledged need to talk to witnesses and have 

additional time to prepare for trial was anything less than sound trial strategy. We note 

appellant does not point to any authority stating otherwise. Decisions which constitute 

trial strategy do not generally rise to the level of ineffective assistance of counsel. A 

reviewing court must adopt a deferential attitude to the strategic and tactical choices 

counsel made as part of a trial strategy. State v. Griffie, 74 Ohio St.3d 332, 658 N.E.2d 

764 (1996). 

Failure to Object to Jury’s Question 

{¶42} Appellant next contends defense trial counsel was ineffective in failing to 

object to the jury’s question to the investigating detective: whether she believed 

appellant raped C.M., to which she answered she believed “one hundred percent” C.M. 

was raped. 

{¶43} Upon our review of the record, we find sufficient competent and credible 

evidence to convince the jury appellant was guilty beyond a reasonable doubt. While 

defense counsel may have been arguably ineffective in failing to object to the form of 

this question, we find no prejudice to the appellant such that but for the statement’s 

admission, the outcome of the trial would have been different. State v. McArtor, 5th 

Dist. Licking No. 2002-CA-00123, 2003-Ohio-5321, ¶ 14, appeal not allowed, 101 Ohio 

St.3d 1468, 2004-Ohio-819, 804 N.E.2d 42, citing State v. Moritz, 63 Ohio St.2d 150, 

407 N.E.2d 1268 (1980). 
Morrow County, Case No.13CA0004 12 

Failure to Request Sexual Battery Instruction 

{¶44} Finally, appellant asserts defense trial counsel was ineffective in failing to 

request a jury instruction on sexual battery pursuant to R.C. 2907.03(A)(5). We 

disagree. 

{¶45} The 30 counts that ultimately went to the jury in this case consisted 

entirely of forcible rape pursuant to R.C. 2907.02(A)(2), which states, “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.” Appellant argues his counsel should have 

asked the jury to be instructed on sexual battery pursuant to R.C. 2907.03(A)(5), which 

states, “No person shall engage in sexual conduct with another, not the spouse of the 

offender, when any of the following apply: * * * *. The offender is the other person's 

natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco 

parentis of the other person.” The trial court did instruct the jury on a different form of 

sexual battery pursuant to R.C. 2907.03(A)(1), to wit, “No person shall engage in sexual 

conduct with another, not the spouse of the offender, when any of the following apply: 

The offender knowingly coerces the other person to submit by any means that would 

prevent resistance by a person of ordinary resolution.” 

{¶46} Appellant argues the trial court signaled it would give an instruction on 

2907.03(A)(5) because there was evidence the relationship between appellant and C.M. 

was in loco parentis but defense trial counsel never asked, and the failure to do so 

constitutes ineffective assistance. The Ohio Supreme Court has recognized “[f]ailure to 

request instructions on lesser-included offenses is a matter of trial strategy and does not 

establish ineffective assistance of counsel.” State v. Dillon, Muskingum App. No. 2008-
Morrow County, Case No.13CA0004 13 

CA-37, 2009-Ohio-3134, ¶ 119, appeal not allowed, 123 Ohio St.3d 1495, 2009-Ohio6015, 916 N.E.2d 1075, citing Griffie, supra, 74 Ohio St.3d at 333. 

{¶47} At trial, the fact of sexual contact between appellant and C.M. was not in 

dispute in light of the pregnancy; the question was whether the contact was forcible. A 

request for the in loco parentis sexual battery instruction would have assured a 

conviction where there otherwise might have been an acquittal had the jury found no 

evidence of force. See, State v. Rich, 5th Dist. Stark No. 2003CA00250, 2004-Ohio4463, ¶ 63. 

{¶48} We find trial counsel's failure to request a jury instruction as to the lesserincluded offense of sexual battery to be a tactical decision and thus not ineffective. 

{¶49} Appellant did not receive ineffective assistance of trial counsel and his first 

assignment of error is overruled. 

II. 

{¶50} In his second assignment of error, appellant argues the trial court 

committed reversible error in asking the detective, at the request of the jury, whether 

she believed C.M. had been raped. We disagree. 

{¶51} As described supra, when the jury was permitted to ask questions of 

appellee’s witness Detective Gibson, neither party objected and the following testimony 

was given: 

* * * *. 

[TRIAL COURT]: Okay. And do you honestly think that [C.M.] was 

raped? That kind of calls for a legal conclusion but the attorneys 

have indicated that they are fine with me asking you that question. 
Morrow County, Case No.13CA0004 14 

[DEFENSE TRIAL COUNSEL]: I’m, sorry can you repeat the 

question, your Honor, we were talking? 

[TRIAL COURT]: Do you honestly think that [C.M.] was raped? 

[DETECTIVE GIBSON]: I believe one hundred percent that [C.M.] 

was raped, absolutely one hundred percent. I don’t even send 

cases to the Prosecutor’s Office that I believe there is any question. 

[C.M.] was absolutely raped. 

* * * *. 

{¶52} Thereupon both parties were given the opportunity to ask follow-up 

questions; neither specifically questioned the detective about this response. No 

curative instruction was requested or given. 

{¶53} As no objection was raised, we review this matter for plain error. Pursuant 

to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed 

although they were not brought to the attention of the court.” The rule places several 

limitations on a reviewing court’s determination to correct an error despite the absence 

of timely objection at trial: (1) “there must be an error, i.e., a deviation from a legal rule,” 

(2) “the error must be plain,” that is, an error that constitutes “an ‘obvious’ defect in the 

trial proceedings,” and (3) the error must have affected “substantial rights” such that “the 

trial court’s error must have affected the outcome of the trial.” State v. Dunn, 5th Dist. 

No. 2008-CA-00137, 2009-Ohio-1688, citing State v. Morales, 10 Dist. Nos. 03-AP-318, 

03-AP-319, 2004-Ohio-3391, at ¶ 19 (citation omitted). 

{¶54} The decision to correct a plain error is discretionary and should be made 

“with the utmost caution, under exceptional circumstances and only to prevent a 
Morrow County, Case No.13CA0004 15 

manifest miscarriage of justice.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 

759 N.E.2d 1240 (2002), quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 

(1978), paragraph three of the syllabus. 

{¶55} These circumstances are not extraordinary and do not represent a 

manifest miscarriage of justice. We find the witness’ conclusion she believed “100 

percent” C.M. was raped to be implicit throughout her entire testimony and, as appellee 

succinctly states, to be “stating the obvious” in terms of her assessment of and role in 

the case. We find the admission of this statement did not affect the outcome of the trial 

such that plain error occurred. 

{¶56} Appellant’s second assignment of error is overruled. 

CONCLUSION 

{¶57} Appellant’s two assignments of error are overruled and the judgment of 

the Morrow County Court of Common Pleas is affirmed. 

By: Delaney, J. and 

Gwin, P.J. 

Wise, J., concur.