IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CHARLES REED, III, 

Case No. 2:18-cv-167

Petitioner, Judge James L. Graham

Magistrate Judge Kimberly A. Jolson

v. 

WARDEN, CORRECTIONAL

RECEPTION CENTER, 

 

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ, 

Petitioner’s Reply, and the exhibits of the parties. For the reasons that follow, the Undersigned

RECOMMENDS that the Petition be DENIED and that this action be DISMISSED. 

I. FACTS AND PROCEDURAL HISTORY 

Petitioner challenges his convictions after a jury trial in the Franklin County Court of 

Common Pleas on five counts of felonious assault and kidnapping. The Ohio Tenth District 

Court of Appeals summarized the facts and procedural history of the case as follows: 

{¶ 2} On July 2, 2014, Reed was indicted (in addition to three other codefendants) for one count of aggravated robbery, six counts of felonious assault, 

six counts of rape, and two counts of kidnapping. He pled not guilty on July 7, 

2014 and ultimately exercised his right to a jury trial.

{¶ 3} The State tried Reed and his three co-defendants in a single proceeding that 

began on August 3, 2015. At the outset of the trial, the defense stipulated that 

DNA was properly collected and firearms found at the scene were operable. In 

addition, one of the two alleged victims in the case, B.P., had not responded to the 

subpoena, and the State, therefore, sought and received a warrant for his arrest. 

Following opening statements, the State began to call witnesses.
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{¶ 4} The State first called a Columbus police officer. The officer testified that on 

June 25, 2014, at 2:24 a.m., he was dispatched to Mount Carmel West Hospital 

where he spoke to a female victim, A.B. He testified that A.B. appeared shaken 

but the officer admitted he did not know of what she was afraid. Neither A.B. nor 

the other alleged victim, B.P., had (to his knowledge) called the police and A.B. 

did not name anyone who might have hurt her.

{¶ 5} The second witness was also a Columbus police officer. He testified that he 

picked up A.B. from the hospital for the purpose of identifying a residence on 

North Harris Avenue where some events relevant to the case were alleged to have 

transpired. The officer testified that the residence in question was 125 North 

Harris Avenue.

{¶ 6} The State next called a detective from the crime scene search unit of the 

Columbus Division of Police. This witness identified photographs taken at 125 

North Harris Avenue as well as items of physical evidence recovered. Among the 

photographs were depictions of a broom with a pole-style handle, a broom handle 

without a broom end attached, a blue bucket containing a leather belt and a BB 

gun, a dog cage in a basement, a black and silver handgun, three boxes of 

ammunition, a number of cell phones, a rifle, and a rifle clip.

{¶ 7} The State then called A.B. as a witness. A.B. testified that she had been, for 

a period of approximately six years, addicted to heroin but, as of the date of her 

testimony on August 4, 2015, she had been clean for approximately one year. She 

explained that she had been acquainted with Reed’s co-defendant, Ivan Minor, for 

around five years and that she and her boyfriend, B.P., went weekly to Minor’s 

house on North Harris Avenue to buy heroin.

{¶ 8} A.B. related that on June 24, 2014, she and B.P. went to Minor’s house on 

Harris Avenue. A.B.’s testimony varied on the exact sequence of events, whether 

she and B.P. had been there earlier in the day, whether B.P. was intending to 

apply a tattoo at the residence or trade tattooing equipment for heroin, and 

whether someone called to her from within the house or whether someone called 

to B.P. However, on at least some occasions while testifying she said that she 

thought Reed had called B.P. and her into the house. A.B. testified that once she 

was inside the house, someone, she was not sure who, displayed a weapon and 

told her to go in the kitchen, empty her pockets, and strip. Apparently, heroin had 

gone missing and the people in the house on North Harris Avenue thought she and 

B.P. had taken it.

{¶ 9} Once she and B.P. had complied in disrobing, someone, she was not sure 

who, performed cavity searches on her and B.P. in the kitchen. Some time later, 

she and B.P. were taken into the basement of the house where Minor and other 

unidentified persons also performed anal and vaginal cavity searches on her using 

gloves from A.B.’s purse which she had for tattooing purposes. In the basement, a 
3

number of unidentified persons, not believing A.B. and B .P.’s protestations that 

they had not stolen heroin, began to beat B.P.

{¶ 10} The beating began with a bottle but they also used a BB gun, a leather 

strap, a knife, as well as feet and hands. A.B. was able to identify the BB gun, 

bucket, and strap offered into evidence among the State’s trial exhibits. 

Specifically, A.B. testified that some people (whom she simply referred to as 

“they”) broke a bottle on B.P.’s head, stomped him with their feet, hit him with 

their hands, wetted the leather strap and whipped his back with it, smashed his 

toes with the butt of the BB gun, and shot him in the bottom and the genitals with 

the BB gun. (Tr. Vol. 2 at 128–30.) They also forced B.P. into a dog cage and 

sodomized him anally with a broom handle without a broom attached to it. At 

times when B.P. passed out, they dumped cold water on him to revive him for 

further beatings. Also, while B.P. was in the cage, they were heating up a knife tip 

and branding him with it. In addition, A.B. testified that, someone (she did not 

know who) kicked her in the head a couple of times when the beating first started.

{¶ 11} At no time did A.B. identify who did what during the beatings except to 

say that Minor and one of his co-defendants, Davonte Clark, stomped B.P. and hit 

him with their hands. A.B. estimated that she was kept in the basement for at least

six hours before she was allowed to leave. She did not attempt to leave or check if 

the door was locked. However, according to her testimony, Reed and his three codefendants came downstairs at points to make sure she and B.P. were down there. 

She also said someone recorded a video of her, naked on top of B.P.’s cage, 

urinating on him.

{¶ 12} Toward the end of the night, someone gave A.B. some heroin and B.P. 

some meth to help with their pain and withdrawal sickness. Eventually, the 

captors let A.B. and B.P. go free reasoning that it had begun to rain outside and 

any heroin that A.B. and B.P. might have stolen and stashed outside would be 

ruined. At least Minor, and maybe other persons, warned A.B. and B.P. not to call 

the police. When she retrieved her belongings and got dressed, A.B. was missing 

three cell phones and $30. However, neither she nor B.P. called the police. Instead 

they walked to a friend’s house who, when it was apparent that B.P.’s health was 

poor, took them to Mount Carmel West Hospital.

{¶ 13} A.B. was able to identify all four defendants at trial. However, she 

admitted on cross-examination that she was in heroin withdrawal during the 

ordeal and that heroin has a mind altering effect that can make things seem real 

that are not. Moreover she explained that Reed had not assaulted or touched her 

and, other than calling them into the house and checking on them in the basement, 

had no involvement in the activities that night.

{¶ 14} The next grouping of witnesses was composed of staff from Mount Carmel 

West Hospital; three sexual assault nurses who collected forensic observations 

and took photographs of the injuries sustained by A.B. and B.P. and a treating 
4

resident physician who treated B.P. According to the physician’s testimony, B.P. 

presented with numerous lacerations, a broken rib, a collapsed left lung, a 

ruptured spleen rating 4 of 5 on the severity scale, a broken toe, a fractured 

tailbone, a bruised scrotum, and abrasions around his anus. He was admitted to 

the intensive care unit and remained there for 5 days. The forensic nurse manager 

for Mount Carmel Health System also testified, describing the photographed 

injuries to B.P. and authenticating the exhibits showing injuries.

{¶ 15} Another nurse testified that she performed an exam of A.B. and testified to 

bruising and other minor injuries to A.B. visible in photographs. This nurse 

testified that A.B. told her that fingers had been used to penetrate her vaginal area 

and “butt.” (Tr. Vol. 2 at 458.) The nurses also testified that they swabbed areas 

where foreign DNA might have been present based on the history recounted by 

A.B. and B.P. and preserved the rape kit for the police.

{¶ 16} The State next called a DNA expert forensic scientist with the Ohio 

Bureau of Criminal Investigation. According to the expert, DNA tests were run on 

the rape kits collected from A.B. and B.P., as well as numerous articles found at 

the scene like the broom handle, BB gun, and pistol. No foreign DNA sufficient 

for comparison with conventional DNA testing was found in the rape kits or on 

any of the articles except the BB gun. Id. And Minor, Clark, and Reed could be 

excluded as contributors to the DNA mixture obtained from the BB gun. The 

expert testified that Y–STR DNA testing yields a less exact result. The testing 

produced two DNA profiles on one end of one broom handle, a major and a minor 

profile. The major profile was consistent with B.P. but Minor, Clark, and Reed 

were all excluded as contributors to the minor profile.

{¶ 17} Thereafter, a canine handling officer for the Columbus Division of Police 

testified that on June 25, 2014, he was called to 125 North Harris Avenue at 6:24 

a.m. with the SWAT team to help effect an arrest because despite the police 

having announced their presence, people were not coming out of the house. He 

testified that after about 15 or 20 minutes, Reed jumped from the second floor 

window and began limping toward him and a SWAT officer.) Because Reed did 

not immediately get on the ground when ordered to do so, the SWAT officer hit 

him with the barrel of his rifle and they arrested him. Other than Reed, everyone 

else who was in the house came out in an orderly and respectful fashion with their 

hands raised.

{¶ 18} The final witness called by the State was an expert in cell phone analysis 

with the Columbus Division of Police. He testified that a detective on the case 

presented him with an Apple iPhone 4 and asked him to obtain the phone’s 

contents. He was able to use software to bypass the phone’s security code and 

download the contents. Both the Apple ID and the Kik2 ID information on the 

phone were associated with the name “Charles Reed.” (Tr. Vol. 3 at 575–77.) The 

expert explained, that from his review of the phone’s contents, he was able to 

determine that on June 24, 2014, at 5:18 p.m., a text was sent from the iPhone to a 
5

recipient named “Destiny” which said, “I am on Harris.” (Tr. Vol. 3 at 578.) Then 

at 1:05 a.m. on June 25, the iPhone received a message that said, “[d]id that 

situation resolve itself at Harris?” (Tr. Vol. 3 at 579–80.) In addition, the iPhone 

contained a video showing A.B. naked in front of a dog cage appearing to urinate 

on B.P. The expert explained that while he could not say that this particular phone 

took the video, he could tell that the video was taken by the same model of phone 

running the same edition of the operating system, that the video was taken on 

June 24, 2014, at 4:46 p.m., and that it was taken at the house on North Harris 

Avenue.

{¶ 19} Following the last of its witnesses and the admission of exhibits, the trial 

court heard motions by the defendants for acquittal under Crim.R. 29. The State 

admitted that the evidence was insufficient on three counts of the indictment as to 

all defendants and the trial court dismissed those counts.

{¶ 20} After closing arguments, jury instructions, and deliberations, on August 

11, 2015, the jury returned verdicts. The jury found Minor, Reed, and Clark to 

each be guilty of five counts of felonious assault and two counts of kidnapping. It 

also found that Minor and Clark were each guilty of two counts of rape. It 

acquitted on all remaining counts.

{¶ 21} On September 10, 2015, the trial court held a sentencing hearing. The trial 

court, after a lengthy explanation of the factors and purposes of sentencing, 

sentenced Reed to a total of 15 years in prison. Specifically, the trial court 

determined that the felonious assault counts should merge and sentenced Reed to 

5 years on the merged count, as well as 5 years on each of the 2 kidnapping 

counts, each to be served consecutively to the others.

{¶ 22} Reed now appeals.

II. ASSIGNMENTS OF ERROR

{¶ 23} Reed raises two assignments of error for review:

[I.] THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE 

PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 

ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING HIM 

GUILTY OF FELONIOUS ASSAULT AND KIDNAPPING AS THOSE 

VERDICTS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND 

WERE ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

[II.] THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY 

IMPROPERLY SENTENCING HIM TO CONSECUTIVE TERMS OF 

INCARCERATION IN CONTRAVENTION OF OHIO’S SENTENCING 

STATUTES.
6

State v. Reed, 10th Dist. No. 15AP-952, 2016 WL 4441528, at *1–5 (Ohio Ct. App. Aug. 23, 

2016). On August 23, 2016, the appellate court overruled Petitioner’s first assignment of error, 

but sustained the second assignment of error, remanding the case to the trial court to make 

appropriate findings required under Ohio law for imposition of consecutive terms of 

incarceration. Id. On February 22, 2017, the Ohio Supreme Court declined to accept jurisdiction 

of the appeal. State v. Reed, No. 2016-1458, 2016-Ohio-5494, 148 Ohio St.3d 1412 (Ohio 

2017). On September 15, 2016, the trial court issued an amended judgment entry of sentence 

pursuant to the remand of the Ohio Court of Appeals. (Doc. 16, PAGEID #: 140).

On February 22, 2018, Petitioner filed this habeas corpus Petition. He asserts that his 

convictions are against the manifest weight of the evidence, and that the evidence is 

constitutionally insufficient to sustain his convictions. Respondent opposes the Petition. 

II. STANDARD OF REVIEW

Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the Antiterrorism and 

Effective Death Penalty Act (“AEDPA”) governs this case. The United State Supreme Court has 

described AEDPA as “a formidable barrier to federal habeas relief for prisoners whose claims 

have been adjudicated in state court” and emphasized that courts must not “lightly conclude that 

a State’s criminal justice system has experienced the ‘extreme malfunction’ for which federal 

habeas relief is the remedy.” Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. 

Richter, 562 U.S. 86 (2011) ); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . 

imposes a highly deferential standard for evaluating state-court rulings, and demands that state 

court decisions be given the benefit of the doubt.”) (internal quotation marks, citations, and 

footnote omitted).
7

AEDPA limits the federal courts’ authority to issue writs of habeas corpus and forbids a 

federal court from granting relief with respect to a “claim that was adjudicated on the merits in 

State court proceedings” unless the state court decision either:

(1) resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the Supreme 

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Further, the factual findings of the state court are presumed to be correct:

In a proceeding instituted by an application for a writ of habeas corpus by a 

person in custody pursuant to the judgment of a State court, a determination of a 

factual issue made by a State court shall be presumed to be correct. The applicant 

shall have the burden of rebutting the presumption of correctness by clear and 

convincing evidence.

28 U.S.C. § 2254(e)(1).

Accordingly, “a writ of habeas corpus should be denied unless the state court decision 

was contrary to, or involved an unreasonable application of, clearly established federal law as 

determined by the Supreme Court, or based on an unreasonable determination of the facts in light 

of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) 

(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006) ). The United States Court of Appeals 

for the Sixth Circuit has summarized these high standards:

A state court’s decision is “contrary to” Supreme Court precedent if (1) “the state 

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 

question of law[,]” or (2) “the state court confronts facts that are materially 

indistinguishable from a relevant Supreme Court precedent and arrives” at a 

different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 

L.Ed.2d 389 (2000). A state court’s decision is an “unreasonable application” 

under 28 U.S.C. § 2254(d)(1) if it “identifies the correct governing legal rule from 

[the Supreme] Court’s cases but unreasonably applies it to the facts of the 

particular ... case” or either unreasonably extends or unreasonably refuses to 

extend a legal principle from Supreme Court precedent to a new context. Id. at 

407, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389.
8

Id. at 748–49. Ultimately, the burden of satisfying AEDPA’s standards rests with the petitioner. 

See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

III. DISCUSSION

A. Manifest Weight

Petitioner asserts that his convictions are against the manifest weight of the evidence. 

This claim, however, does not provide a basis for federal habeas corpus relief. See Hawkins v.

Ross Corr. Inst., No. 2:17-cv-466, 2017 WL 3084586, at *2 (S.D. Ohio June 2, 2017) (citing 

Williams v. Jenkins, No. 1:15cv00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb. 22, 2016) 

(citing Nash v. Eberlin, 258 F. App’x 761, 765, n.4 (6th Cir. 2007) ); Norton v. Sloan, No. 1:16-

cv-854, 2016 WL 525561, at *5 (N.D. Ohio Feb. 9, 2017) (citing Ross v. Pineda, No. 3:10-cv391, 2011 WL 1337102, at *3 (S.D. Ohio) ) (“Whether a conviction is against the manifest 

weight of the evidence is purely a question of Ohio law.”); Taylor v. Warden, Lebanon Corr. 

Inst., No. 2:16-cv-237, 2017 WL 1163858, at *10–11 (S.D. Ohio March 29, 2017) ).

Under Ohio law, a claim that a verdict was against the manifest weight of the evidence—

as opposed to one based upon insufficient evidence—requires the appellate court to act as a 

“thirteenth juror” and review the entire record, weigh the evidence, and consider the credibility 

of witnesses to determine whether “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.” State v.

Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Since a 

federal habeas court does not function as an additional state appellate court, vested with the 

authority to conduct such an exhaustive review, this Court cannot consider Petitioner’s claim that 

his convictions were against the manifest weight of the evidence.
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B. Sufficiency of the Evidence

Petitioner also asserts that the evidence is constitutionally insufficient to sustain his 

convictions. The state appellate court rejected this claim on the merits: 

{¶ 24} In his first assignment of error, Reed argues that his convictions were not 

supported by sufficient evidence. . . .

{¶ 25} Sufficiency is:

“[A] term of art meaning that legal standard which is applied to 

determine whether the case may go to the jury or whether the 

evidence is legally sufficient to support the jury verdict as a matter 

of law.” * * * In essence, sufficiency is a test of adequacy. 

Whether the evidence is legally sufficient to sustain a verdict is a 

question of law.

Eastley at ¶ 11, quoting Thompkins at 386; Black’s Law Dictionary 1433 (6th 

Ed.1990). “In reviewing a record for sufficiency, ‘[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. Monroe, 105 Ohio St.3d 384, 2005–

Ohio–2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two 

of the syllabus.

***

1. Felonious Assault

{¶ 28} In Ohio, the offense of felonious assault includes the following 

prohibition:

No person shall knowingly do * * * the following:

(1) Cause serious physical harm to another * * *.

R.C. 2903.11(A)(1). “Serious physical harm” is separately defined in relevant part 

as:

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity, 

whether partial or total, or that involves some temporary, 

substantial incapacity;
10

* * *

(e) Any physical harm that involves acute pain of such duration as 

to result in substantial suffering or that involves any degree of 

prolonged or intractable pain.

R.C. 2901.01(A)(5)(b), (c), and (e). Moreover, although no evidence was 

introduced at trial that Reed ever physically touched A .B. or B.P., a person who 

is complicit in an offense “shall be prosecuted and punished as if he were a 

principal offender,” and a person is complicit in the sense potentially relevant 

here when, “acting with the kind of culpability required for the commission of an 

offense” the person “[a]id[s] or abet[s] another in committing the offense.” R.C. 

2923.03(A)(2) and (F).

{¶ 29} A.B. testified that Minor and Clark stomped B.P. with their feet and hit 

him with their hands. The physician from Mount Carmel West Hospital who 

treated B.P. testified that B.P. presented with, among other injuries, a broken rib, 

a collapsed left lung, and a ruptured spleen rating 4 of 5 on the severity scale. The 

physician testified that due to his condition, B.P. was admitted to the intensive 

care unit where he remained throughout his 5–day hospitalization. This testimony, 

when considered in the “‘light most favorable to the prosecution’” was sufficient 

to support the conclusion that some persons feloniously assaulted B.P. but not that 

Reed did. Monroe at ¶ 47, quoting Jenks at paragraph two of the syllabus.

{¶ 30} The question then, is whether the evidence was sufficient to conclude that 

Reed was complicitous to the felonious assault. It is settled law that “‘the mere 

presence of an accused at the scene of a crime is not sufficient to prove, in and of 

itself, that the accused was an aider and abettor.’” State v. Johnson, 93 Ohio St.3d 

240, 243 (2001), quoting State v. Widner, 69 Ohio St.2d 267, 269 (1982). 

However, “‘participation in criminal intent may be inferred from presence, 

companionship and conduct before and after the offense is committed.’” Johnson

at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34 (4th Dist.1971). Thus, the 

appropriate consideration is whether there were facts sufficient to show that Reed 

shared the criminal intent of those persons who assaulted B.P.

{¶ 31} A.B. testified that Reed was not involved in the assault of B.P. Although 

she equivocated on the issue, she said Reed checked on her and B.P. while they 

were in the basement. In addition, though her testimony varied on this point also, 

A.B. testified that Reed may have been the person who called B.P. and her into 

the house. Moreover, an expert in cell phone analysis with the Columbus Division 

of Police testified that the Apple iPhone 4 recovered from the scene contained 

Apple ID and Kik ID information indicating the accounts on that phone were 

associated with “Charles Reed.” (Tr. Vol. 3 at 568–70, 575–77.) According to the 

expert, on June 24, 2014, at 5:18 p.m., a text was sent from the iPhone to a 

recipient named “Destiny” which said, “I am on Harris.” (Tr. Vol. 3 at 578.) Then 

at 1:05 a.m. on June 25, the iPhone received a message that said, “[d]id that 
11

situation resolve itself at Harris?” (Tr. Vol. 3 at 579.) The iPhone contained a 

video showing A.B. naked in front of a dog cage appearing to urinate on B.P. The 

expert explained that while he could not say that this particular phone took the 

video, he could discern that the video was taken by the same model of phone 

running the same edition of the operating system, that the video was taken on 

June 24, 2014 at 4:46 p.m., and that it was taken at the house on North Harris 

Avenue. Finally, the officer who arrested Reed testified that he attempted to flee 

the house on North Harris Avenue when the police arrived.

{¶ 32} “‘[V]iewing the evidence in a light most favorable to the prosecution,’” we 

find that a “‘rational trier of fact could have found’” that Reed participated in the 

criminal intent of those persons who perpetrated the felonious assault. Monroe at 

¶ 47, quoting Jenks at paragraph two of the syllabus. Though the expert could not 

definitively say that the iPhone 4 in question belonged to Reed or that it had been 

used to take the video of A.B. and B.P., a reasonable jury could have inferred both 

those facts from the expert’s testimony. We find the evidence was sufficient for 

the jury to find that Reed was a complicitor in causing serious physical harm to 

B.P., being present in the basement during the assaults, and apparently involved 

enough to record a video of the crime scene during the time of the events in 

question. In addition, although A.B. equivocated on this point, A.B.’s testimony 

was sufficient for the jury to conclude that Reed was instrumental in inviting A.B. 

and B.P. back to the house where the assaults occurred and, thereafter, 

participated in keeping them in the house during the time period of the assaults. 

Finally, Reed’s flight from the house (though also potentially understandable as a 

desire to not be arrested at a drug house) could be consciousness of guilt about the 

treatment of A.B. and B.P. Taken as a whole, the evidence was sufficient to allow 

a reasonable factfinder to conclude beyond a reasonable doubt that Reed was 

complicit in the felonious assault of B.P.

{¶ 33} When considering manifest weight of the evidence, there was no 

suggestion by the evidence that B.P.’s injuries were feigned or that the physician 

who testified was not credible or incorrect in his testimony. When considering 

whether the evidence introduced at trial was weighty enough to support the 

conviction, the issue resolves to a question of whether A.B. was credible in 

reporting how B.P. sustained the injuries, at whose hands, and the extent of 

Reed’s participation and complicity in the assault on B.P.

{¶ 34} A.B.’s testimony that B.P. was stomped was convincingly corroborated by 

the fact that B.P. had a collapsed lung, broken rib, and ruptured spleen when he 

arrived at the hospital. Moreover, Reed’s involvement in A.B.’s and B.P.’s 

presence at the house at 125 North Harris Avenue during the evening was 

corroborated by the cell phone video recovered from Reed’s phone depicting A.B. 

and B.P. in a state of naked misery at 125 North Harris Avenue on June 24, 2014 

at 4:46 p.m.
12

{¶ 35} A.B. was, at the time of the incident, a heroin addict who was experiencing 

symptoms of withdrawal. Her testimony was inconsistent throughout trial about 

who did what and how many assailants there were. Rather than make allegations 

about any specific defendant, she repeatedly used vague pronouns such as “they”

or “them.” (Tr. Vol. 2 at 128–30.) She also, at one point, appeared to testify that 

many of the people who harmed her were not defendants at trial. A.B. admitted to 

being a thief and “boosting” (stealing barter items to obtain heroin) repeatedly for 

ten years. (Tr. Vol. 2 at 208.) She admitted to having lied to the police when she 

spoke to them at the hospital. She also admitted she did not remember what she 

said at the hospital or whether she had initially claimed to have been raped by 

four or five men. Reed was excluded as a contributor to all the useable DNA 

samples collected from bodies of B.P. and A.B. as well as the various implements 

allegedly used on B.P. Finally, A.B. equivocated about the extent of Reed’s 

participation in the entire evening:

Q. Do you know who came down to check on you?

A. There was several different people.

Q. Okay. Who?

A. [Minor] had [Clark], [an acquitted co-defendant], and [Reed].

Q. They all what?

A. They all checked on us at one point.

* * *

Q. And what involvement did [Reed] have that night?

A. Not a whole lot. He checked on us in the basement, nothing else, really.

Q. Did he ever make sure that you didn’t leave?

A. I am not sure.

* * *

Q. What was [Reed’s] involvement?

A. Not a whole lot of anything. Calling us back to the house, really.

Q. Did he come in and out of the basement?

A. I am not real sure.
13

Q. Did you see him throughout the night?

A. No.

* * *

Q. I think when you first testified, you said you think that [Reed] may have been 

the person who called you back in?

A. Yes.

Q. Do you recall that there were other people outside at the same time when 

[Reed] was out there?

A. There might have been a couple people. I remember him saying, hey, you 

know, asking [B.P.] to come back.

Q. Do you remember being interviewed by the police? I guess maybe you don’t 

recall being interviewed by the police?

A. I don’t recall a lot of it, no.

Q. If you told the police that [Reed] was out there along with [Clark] and several 

other people, and that you weren’t sure who was calling you back?

A. No, I don’t remember hearing that.

Q. Would you have any reason to lie about that?

A. No.

(Tr. Vol. 2 at 134–35, 151, 154–55, 202.)

{¶ 36} After review of the record, we cannot say, based on the evidence in this 

case, that “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. We conclude that the conviction for felonious assault as a complicitor is 

not against the manifest weight of the evidence.

2. Kidnapping

{¶ 37} The Ohio Revised Code defines the offense of kidnapping in relevant part 

as follows:
14

(A) No person, by force [or] threat, * * * shall * * * restrain the liberty of the 

other person, for any of the following purposes:

* * *

(2) To facilitate the commission of any felony or flight thereafter;

(3) To terrorize, or to inflict serious physical harm on the victim or another;

* * *

(B) No person, by force [or] threat, * * * shall knowingly do any of the following, 

under circumstances that create a substantial risk of serious physical harm to the 

victim * * *:

* * *

(2) Restrain another of the other person’s liberty.

R.C. 2905.01(A)(2), (3), (B)(2). A person who is complicit in an offense “shall be 

prosecuted and punished as if he were a principal offender,” and a person may be 

found to be complicit when, “acting with the kind of culpability required for the 

commission of an offense,” the person “[a]id[s] or abet[s] another in committing 

the offense.” R.C. 2923.03(A)(2) and (F).

{¶ 38} A.B. testified that after she and B.P. were forced at gunpoint to strip naked 

and sent into the basement, that they were not permitted to leave for six hours. 

Although A.B. testified that she did not check to see if the basement door was 

locked, a number of persons, including Reed, came down to the basement from 

time to time to make sure they were still there. In addition, B.P. was caused 

serious physical harm while he was being held in the basement. This evidence 

was sufficient to sustain the convictions for kidnapping as set forth above.

{¶ 39} Despite the general vagueness of A.B.’s testimony in general and the other 

issues affecting her credibility, the video shot of A.B. and B.P. in the basement of 

125 North Harris Avenue is strong corroborating evidence that A.B. and B.P. 

were being forcibly kept for some period of time in the basement of that premises. 

Under the circumstances and after review of the record, we cannot say that “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. We thus 

determine that the convictions for kidnapping are not against the manifest weight 

of the evidence.

{¶ 40} Reed’s first assignment of error is overruled.

State v. Reed, 2016 WL 4441528, at *5–10. 
15

In determining whether the evidence was sufficient to support a petitioner’s conviction, a 

federal habeas court must view the evidence in the light most favorable to the prosecution. 

Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

The prosecution is not affirmatively required to “rule out every hypothesis except that of guilt.” 

Id. (quoting Jackson, 443 U.S. at 326). Instead, “a reviewing court ‘faced with a record of 

historical facts that supports conflicting inferences must presume—even if it does not 

affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of 

the prosecution, and must defer to that resolution.’” Id. at 296–97 (quoting Jackson, 443 U.S. at 

326).

Moreover, federal habeas courts must afford a “double layer” of deference to state court 

determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, deference 

first must be given to the jury’s finding of guilt because the standard, announced in Jackson v.

Virginia, is whether “viewing the trial testimony and exhibits in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” 567 F.3d 191, 205 (6th Cir. 2009). Second—and even if a de novo 

review of the evidence leads to the conclusion that no rational trier of fact could have so found—

a federal habeas court “must still defer to the state appellate court’s sufficiency determination as 

long as it is not unreasonable.” Id.; see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). 

This is a substantial hurdle for a habeas petitioner to overcome. 

Here, Petitioner argues that A.B. never unequivocally indicated that she was being held 

against her will or that he was the person who called her and B.P. back into the house. He 

further argues that the prosecution did not prove that it was his iPhone or that he recorded the 

video found by police, and that his flight did not indicate evidence of guilt, as he did not want to 
16

be arrested at a drug house. At base, Petitioner asserts that the prosecution established no more 

than his presence at the scene of the crimes and that alone, Petitioner argues, is constitutionally 

insufficient to sustain his convictions as an aidor and abettor under Ohio law. 

At trial, A.B. testified that she had dated B.P. for thirteen years. Transcript (Doc. 16-2, 

PAGEID #: 309). The two frequented the home of Ivan Minor, or “Ivo,” on Harris Avenue 

weekly to purchase heroin. (PAGEID #: 310–11). On the evening of June 24, 2014, they went 

to Ivo’s house on Harris where they had been earlier that same day, as B.P. was going to do some 

tattoos. (PAGEID #: 312–13). A.B. testified that, as they were leaving, someone called them 

back into the house. 

Q. By whom, if you know? 

A. I don’t know. 

(PAGEID #: 313). 

I believe a man called us. 

***

He. . . hollered for Brian, and I heard him, and I told Brian they are hollering for 

you, you know, go see what they want. So we turned around and came back. 

(PAGEID #: 313–14). A.B. was told to go into the kitchen, empty her pockets, and get 

undressed; B.P. entered the house through a different door. (PAGEID #: 314). She thought that 

someone was holding a gun, but could not remember for sure. (Id.) It was A.B.’s understanding 

that some heroin had come up missing, and they thought she and B.P. had taken it. (PAGEID #: 

315). Ivo and others—she was not sure who or how many of them—conducted cavity searches 

on them in the kitchen and basement. (PAGEID #: 318–19). They beat Brian with a bottle, a 

BB gun, a leather strap, and a butcher knife; and stuck him in a dog cage. (PAGEID #: 319). 

Ivo and Davonte stomped him with their feet and hit him with their hands. (PAGEID #: 320). 
17

They shot him with the BB gun and raped him with a broom. (PAGEID #: 321). When he 

passed out they dumped cold water on him and would start hitting him again. (PAGEID #: 322). 

They burned his skin with the tip of a heated butcher knife. (PAGEID #: 324–25). She got 

kicked in the head a couple of times, but could not identify her assailant. (PAGEID #: 322). 

These events transpired over the course of at least six hours in the basement of the house. A.B. 

testified that she could not leave: 

Q. How did they make sure that you didn’t leave? 

A. Um, they had people come downstairs to make sure we were down there. I 

am not sure if they locked the basement door or not. I didn’t never check, so I 

don’t know. 

Q. Why didn’t you ever check? 

A. I was scared to. 

Q. Do you know who came down to check on you? 

A. There was several different people. 

Q. Okay. Who? 

A. Ivo had Davonte, Terril, and Man. 

***

They all checked on us at one point. 

(PAGEID #: 326–27). A.B. testified that she refers to Petitioner Charles Reed as “Man.” 

(PAGEID #: 343). She told the jury that she was not sure who was in charge, “[t]hey seemed 

like they all did the same thing.” (PAGEID #: 327). According to her testimony, Ivo and 

Davonte beat B.P., as did other persons but she could not identify them. (PAGEID #: 327). 

Likewise, she knew someone used an iPhone to record her on top of B.P’s cage but she could not 

say who. (Id.) Eventually, they were told that they could leave. She got B.P’s clothes and 
18

helped him dress. They were warned not to call the police, or they would get hurt. (PAGEID #: 

328). They gave her and B.P drugs to help him with the pain during the time that they were in 

the basement. (PAGEID #: 329). She testified that she left three cell phones and $30.00 at the 

house. (PAGEID #: 330). They then went to a friend’s house and ultimately took B.P to the 

hospital. (PAGEID #: 331). She could not say how many people came in and out of the 

basement during the time that they were there. (PAGEID #: 333). A.B. testified that Petitioner

did not physically assault anyone and was not involved in the cavity searches. (PAGEID #: 

395–96). 

Petitioner was convicted as an aider and abettor. Ohio Revised Code § 2923.03(A)(2) 

provides that “No person, acting with the kind of culpability required for the commission of an 

offense, shall . . . [a]id or abet another in committing the offense[.]” 

A person aids or abets another when he supports, assists, encourages, cooperates 

with, advises, or incites the principal in the commission of the crime and shares 

the criminal intent of the principal. Such intent may be inferred from the 

circumstances surrounding the crime.” State v. Seals, 8th Dist. Cuyahoga No. 

101081, 2015-Ohio-517, 2015 WL 628352, ¶ 34, citing State v. Johnson, 93 Ohio 

St.3d 240, 754 N.E.2d 796 (2001). Aiding and abetting may be shown by both 

direct and circumstantial evidence, and participation may be inferred from 

presence, companionship, and conduct before and after the offense is committed. 

State v. Cartellone, 3 Ohio App.3d 145, 150, 444 N.E.2d 68 (8th Dist. 1981), 

citing State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist. 1971); 

see also State v. Harmon, 8th Dist. Cuyahoga No. 53221, 1988 WL 18636 (Feb. 

18, 1988).

State v. Carradine, 38 N.E.3d 936, 942 (Ohio Ct. App. Sept. 10, 2015). The trial court instructed 

the jury that the Petitioner could be convicted as an aider and abettor to any or all counts and 

specifications charged. Transcript (Doc. 16-5, PAGEID #: 1031–33). As the state appellate 

court explained, “the mere presence of an accused at the scene of a crime is not sufficient to 

prove, in and of itself, that the accused was an aider and abettor” under Ohio law. State v. 

Johnson, 93 Ohio St.3d 240, 243 (Ohio 2001) (citing State v. Widner, 69 Ohio St.2d 267, 269 
19

(Ohio 1982)). The Ohio Supreme Court has stated that “[t]his rule is to protect innocent 

bystanders who have no connection to the crime other than simply being present at the time of its 

commission.” Id. However, ‘“[p]articipation in criminal intent may be inferred from presence, 

companionship and conduct before and after the offense is committed.’” Johnson, at 245 

(quoting State v. Pruett, 28 Ohio App.2d 29, 34 (1971)). 

The state appellate court construed the following evidence of Petitioner’s guilt as an aider 

and abettor in favor of the prosecution: flight at the time of arrest; the video found on the iPhone 

associated with his name; and A.B.’s testimony that she believed Petitioner called B.P. and her

back into the house as they were leaving, that Petitioner was present at least periodically during 

the events at issue, and that Petitioner came down into the basement, at least at one point in time

in order to make sure that they did not leave. Based on this, the state appellate court determined 

that these facts were sufficient to establish Petitioner’s guilt as an aider and abettor on the 

charges of felonious assault and kidnapping on the night in question. 

This Court reviews that decision under an extremely doubly deferential lens of both 

Jackson v. Virginia and AEDPA. Notably, Petitioner “faces a nearly insurmountable hurdle.” 

Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (citation omitted). “A reviewing court may 

set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact 

could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). Further, and 

“[b]ecause rational people can sometimes disagree, the inevitable consequence of this settled law 

is that judges will sometimes encounter convictions that they believe to be mistaken, but that 

they must nonetheless uphold.” Id. Additionally, “a federal habeas court may overturn a state 

court’s rejection of an insufficient-evidence claim only if the state court’s decision was 
20

objectively unreasonable under § 2254(d).” Danielak v. Brewer, -- F. App’x --, 2018 WL 

4049076, at *1 (6th Cir. Aug. 24, 2018) (citing Coleman v. Johnson, 566 U.S. 650, 651 (2012)). 

The precise definition of “objectively unreasonable” remains elusive. Maynard v.

Boone, 468 F.3d 665, 670–71 (10th Cir.2006) (discussing the failure of most 

federal courts to further define the phrase “objectively unreasonable” and 

collecting cases). Several of our sister circuits, however, have attempted to clarify 

the term. The First Circuit has explained that “if it is a close question whether the 

state decision is in error, then the state decision cannot be an unreasonable 

application,” and that “‘some increment of incorrectness beyond error is 

required.’” McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) 

(quoting with approval Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)).

Taking a somewhat different tack, the Seventh Circuit has explained that a state 

court’s decision is sustainable under AEDPA if it “is at least minimally consistent 

with the facts and circumstances of the case,” Hennon v. Cooper, 109 F.3d 330, 

335 (7th Cir.1997), or even “if it is one of several equally plausible outcomes,” 

Hall v. Washington, 106 F.3d 742, 749 (7th Cir.1997), and that a decision is 

objectively unreasonable only where it is “well outside the boundaries of 

permissible differences of opinion,” Hardaway v. Young, 302 F.3d 757, 762 (7th 

Cir.2002); see also Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir.2000) 

(explaining that a state court’s decision is not unreasonable if it took the 

controlling standard “seriously and produce[d] an answer within the range of 

defensible positions”). The Tenth Circuit has similarly opined that “[i]t is not 

enough that the decision is clearly wrong or that the reviewing court would have 

reached a contrary decision,” but instead “the state court decision must be at such 

tension with governing U.S. Supreme Court precedents, or so inadequately 

supported by the record, or so arbitrary as to be unreasonable.” Maynard, 468 

F.3d at 671 (internal quotation marks omitted).

This court has not delved deeply into the issue, but one judge has indicated that 

where a state court makes “a close call” on a constitutional question, this 

“militates against the conclusion that the state court’s application of the relevant 

Supreme Court precedent was objectively unreasonable.” Lopez v. Wilson, 426 

F.3d 339, 358 n. 1 (6th Cir.2005) (en banc) (Cole, J., concurring) (internal 

quotation marks omitted). Moreover, the Supreme Court has recently explained 

that “[w]hen assessing whether a state court’s application of federal law is 

unreasonable, ‘the range of reasonable judgment can depend in part on the nature 

of the relevant rule’ that the state court must apply.” Renico v. Lett, ––– U.S. –––, 

130 S.Ct. 1855, 1864, 176 L.Ed.2d 678 (2010) (quoting Yarborough v. Alvarado, 

541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).

Davis v. Lafler, 658 F.3d at 534-35. 
21

In this case, the video on the iPhone provided circumstantial evidence of Petitioner’s 

involvement in the crime. In addition, Petitioner’s flight from police may be viewed as 

circumstantial evidence of guilt, despite his alternative explanation for it. See Diggs v. Warden, 

Noble Corr. Inst., No. 2:15-cv-02117, 2016 WL 1594592, at *10 (S.D. Ohio April 21, 2016) 

(citing See United States v. White, 543 F. App’x 563, 567 (6th Cir. 2013)). Finally, A.B.’s 

testimony provided support for the conclusion that Petitioner was more than an innocent 

bystander. To be sure, parts of her testimony equivocated on the extent of Petitioner’s 

involvement, but the jury—not this Court—was responsible for resolving those inconsistencies.

Given all of this, it was not unreasonable for the state appellate court to determine that 

the facts were sufficient to establish Petitioner’s guilt as an aider and abettor on the charges of 

felonious assault and kidnapping. And, consequently, Petitioner has not met his high burden 

here.

IV. RECOMMENDED DISPOSITION

Therefore, the Undersigned RECOMMENDS that the Petition be DENIED and that this 

action be DISMISSED. 

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo 

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 
22

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 

636(b)(1).

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue.

IT IS SO ORDERED.

Date: December 31, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE