[Cite as State v. Peck , 2021-Ohio-1685.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO Appellee

v. BRYAN PECK Appellant C.A. No. 19AP0031

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2018 CBC-1 000193
DECISION AND JOURNAL ENTRY Dated: May 17, 2021

SUTTON, Judge. {¶1} Defendant-Appellant, Br yan Peck, appeals from the judgment of t he Wayne County Court of Common Pleas. T his Court affirms.
I. {¶2} During the timeframe relevant to this appeal, Mr. Peck was the stepfather of W.S. He and W.S.’s mother lived in an apartment along with W.S. and her two brothers. Because the apartment had only one bedroom, the three children shared the b edroom while the adults slept in the dining room area. At the time, W.S. was five years old, he r older brother was nine years old, and her younger brothe r was one year old. {¶3} One afternoon, W.S. came out of her bedroom and indicated that she needed help with her television. Because her mother was washing the dishes , Mr. Peck volunteered to help and took W.S. back to her room. He remained with W.S. for a while before he returned to the kitchen in search of candy. The mother informed him that they had sucke rs, and Mr. Peck took some of2

the suckers and left the room. M eanwhile, the mother continued to tend to the dishes and minded her one-year-old son. As she cleaned, she dropped some cereal into a bucket the one-year-old was carrying, and he left the kitchen with the bucket. {¶4} When the mother finished tidying, she picked up a few toys and walked toward the children’s bedroom. She was near ly there when Mr. Peck peeked out and appeared panicked. As she completed her approach, the mother saw Mr. Peck standing ne ar the doorway, W.S. standing nearby him, and her one-year-old standing next to the televisio n. Mr. Peck quickly shoved W.S. away, grabbed the one-year-old’s bucket, and held it in front o f his genitals. Yet, the mother was still able to see that he had an erection, which he had exposed by pulling up one leg of his shorts. The mother saw W.S. staring a t Mr. Peck’s erect penis and quick ly asked her wha t had happened. W.S. quietly responded that Mr. Peck “made [her] suck his wiene r” because “his wiener [was] a sucker.” W.S. also stated that Mr. Peck would give her candy a fterward and told her “not to tell anybody ever.” Realizing that Mr. Peck was motioning to W.S. t o be quiet, the mother repeatedly hit him until she forced him from the room. {¶5} The mother contacted the police, and officers immediately respo nded to the apartment. Mr. Peck left with the officers and arrangements we re made for W.S. to be taken to the child advocacy center the following day. That evening, she spoke with her mother several times and made statements indica ting that Mr. Peck had sexually abused her before. {¶6} The next day, W.S. spoke with an interviewer at the child advoc acy center. She then met with a nurse examiner and submitted to a physical exam . Her first interview was recorded and many of the statements that she made therein also were incl uded in a medical report that the nurse examiner completed. The nurse examiner completed her rep ort based on her observation of3 W.S.’s recorded interview, her own interview of W.S., and the p hysical examination she conducted. {¶7} A grand jury indicted Mr. Peck on three counts of rape, three c ounts of sexual battery, and three counts of g ross sexual imposition. One coun t of each type of crime related to the incident described herein. The remaining counts alleged th at Mr. Peck had sex ually assaulted W.S. during the preceding six months. {¶8} Upon motion of Mr. Peck, the trial court conducted a competency hearing and determined that W.S. was not competent to testify. Mr. Peck th en sought to exclude the statements W.S. had made at the child advocacy center, arguing that they w ere testimonial and not made for the purpose of medical diagnosis or treatment. The court revie wed W.S.’s recorded interview and agreed that it should not be admitted in its entirety. Yet, th e court indicated that it would admit any statements W.S. had made the rein for the purpose of medical diagnosis and treatment. The State, therefore, prepared to play a series of excerpts from th e recorded interview at trial. {¶9} Mr. Peck waived his right to a j ury, and a bench trial ensued. The admission of W.S.’s recorded statements continued to be a topic of debate at trial, particularly after the nurse who examined her at the child advocacy center referred to the r ecorded interview as a forensic interview. Following the nurse’s testimony, the court notified the parties that it was reconsidering the admissibility of W.S.’s recorded statements. The court not ed that the nurse examiner had conducted her own inter view and had prepared a medical report b ased on the infor mation she had obtained from W.S. Over the State’s objection, the court deter mined that it would only consider W.S.’s statements to the exten t that the nurse examiner had inc luded them in her medical report. {¶10} The trial court found Mr. Peck g uilty of one count of rape, one count of sexual battery, and one count of gross sexual imposition, all three of which pertained to the incident4

described herein. The court f ound Mr. Peck not guilty of the r emaining counts. The court merged Mr. Peck’s three counts as allied offenses, and the State elect ed to proceed to sentencing on the rape count. The court sentenced Mr. Peck to fifteen years to l ife in prison on that count and classified him as a tier III sexual offender. {¶11} Mr. Peck now appeals from the c ourt’s judgment and raises four assignments of error for our review.
II. ASSIGNMENT OF ERROR I
THE EVIDENCE PRESENTED IN THIS CASE BY THE STATE WAS INSUFFICIENT TO ESTABLISH PROOF BEYOND A REASONABLE DOUBT AND AS SUCH, THE COURT ERRED IN DENYING MR. PECK’S MOTION FOR JUDGMENT FOR ACQUITTAL UNDER RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE [.] {¶12} In his first assignment of error, Mr. Peck argues that his conv ictions are based on insufficient evidence . Specifically, he argue s that the trial court ought to have granted his motion for acquittal, as there was insufficient evidence that he engag ed in sexual conduct or contact with W.S. We do not agree. {¶13} This Court reviews the denial of a defendant’s Crim.R. 29 motio n for acquittal by assessing the sufficiency of the State’s evidence. State v. Frashuer , 9th Dist. Summit No. 24769, 2010-Ohio-634, ¶ 33. Whether a c onviction is supported by suff icient evidence is a question of law, which this Court reviews de novo. State v. Salupo , 9th Dist. Lorain No. 07CA009233, 2008- Ohio-3721, ¶ 4, citing State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). “A challenge to the sufficiency of the evidence con cerns the State’s burden of prod uction * * *” and is, “[i]n essence, * * * a test of adequacy.” In re R.H. , 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶ 25; Thompkins at 386. “The relevant inquiry is whether, after viewing the e vidence in a light most5 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 , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve evidentiary c onflicts or assess the credibility of witnesses, because these functions belong to the trier of fact. ” State v. Hall , 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10. {¶14} A person commits rape if he engages in sexual conduct with anot her who is not his spouse and who is under the age of thirteen. R.C. 2907.02(A)(1 )(b). A person commits sexual battery if he engages in sexual conduct with another who is not his spouse and who is his stepchild. R.C. 2907.03(A)(5). Finally, a person commits gross sexual imp osition if he engages in sexual contact with another who is not his spouse and who is under the age of thirteen. R.C. 2907.05(A)(4). The phrase “sexu al conduct” includes fellatio. R.C. 2907.01(A). The phrase “sexual contact” refers to “any touching of an erogenous zone o f another * * * for the purpose of sexually arousing or gratif ying either person.” R.C. 2907.01(B ). {¶15} W.S.’s mother testified that s he found Mr. Peck, W.S., and her one-year-old son in the children’s bedroom. She testified that Mr. Peck quickly pe eked his head out of the room and appeared panicked as she approach ed. She also testified that, when she reached the doorway, he shoved W.S. away and attempted to hide his genitals. The mothe r saw that Mr. Peck had an erection and testified that it was visible because one leg of h is shorts was pulled up over his erect penis. She stated that W.S. was staring at Mr. Peck’s penis wi th a terrified look on her face and said that Mr. Peck “made [her] suck his wiener” because “his wi ener [was] a sucker.” W.S. also told her mother that Mr. Peck would give her candy when she com plied and instructed her “not to tell anybody ever.” The mother testified that, as W.S. spoke, she saw Mr. Peck looking at W.S., steepling his hands in front of his mouth, and shaking his headno.6
{¶16} The nurse examiner who met with W.S. at the child advocacy cent er also testified on behalf of the State. The nur se examiner testified that W.S. disclosed Mr. Peck’s sexual abuse to her during their interview. W.S. told the nurse examiner th at Mr. Peck had touched her “pee pee” and had put his penis in her mouth. W.S. indicated that M r. Peck told her his penis “was a sucker” and that she had “almost puked because he put it in too far * * *.” When examining W.S., the nurse examiner observed bila teral redness at the back of he r throat. She testified that there could be a number of reasons for the redness, but it did correl ate with W.S.’s description of Mr. Peck’s penis being inserted force fully enough to make her want to vomit. {¶17} Mr. Peck argues that his convic tions are based on insufficient evidence because the State failed to prove that any sexual conduct or contact occurr ed. The crux of his argument is that the State’s evidence was not believable. For example, he claim s that the testimony of its witnesses was inconsistent in se veral respects and that W.S.’s answers su ggested she was coached. Yet, challenges to the reliability or believability of the State’s e vidence sound in weight, not sufficiency. See State v. Renaud , 9th Dist. Summit No. 28439, 2017-Ohio-8218, ¶ 24; State v.
Sharrock , 9th Dist. Summit No. 27452, 2015-Ohio-2253, ¶ 11. A sufficie ncy review requires us to examine all of the evidence in a light most favorable to the State. See Jenks , 61 Ohio St.3d 259 at paragraph two of the syllabus. Upon review of the evidence herein, we must c onclude the State satisfied its bur den of production. {¶18} W.S. told both her mother and the nurse examiner that Mr. Peck placed his penis in her mouth and instructed her to treat it as if it were a sucker . The nurse examiner observed redness at the back of W.S.’s throat, and W.S.’s mother observed Mr. Pe ck and W.S. together in W.S.’s bedroom while Mr. Peck’s penis was erect and fully exposed. A rational trier of f act could have7

concluded that the State’s evide nce, if believed, established M r. Peck’s guilt beyond a reasonable doubt. See id. Accordingly, Mr. Peck’s first assignment of error is overrule d.
ASSIGNMENT OF ERROR II
THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF EVIDENCE AS THE TRIER OF FACT CLEARLY LOST ITS WAY GIVEN THE ENTIRE RECORD, THE INFERENCES DRAWN FROM THE UNTRUSTWORTHY AND UNRELIABLE EVIDENCE, AND THE LACK OF CREDIBILITY OF [MOTHER] AND [W.S.] {¶19} In his second assignment of error, Mr. Peck argues that his con victions are against the manifest weight of the evidence. We disagree. {¶20} As this Court has previously stated: In determining whether a criminal conviction is against the man ifest weight of the evidence, an appellate court must review the entire record, wei gh the evidence and all reasonable inferences, consider the credibility of witnesse s, and determine whether, in resolving conflicts in the evidence, the trier of f act clearly lost its way and created such a manifest miscarriage of justice that the con viction must be reversed and a new trial ordered. State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the c onflicting testimony.” State v. Tucker , 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This dis cretionary power “‘should be exercised only in the exceptional case in which the evidence we ighs heavily against the conviction.’” Thompkins , 78 Ohio St.3d 380, 387, quoting State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340. {¶21} Mr. Peck testified in his own defense and fervently denied that he ever sexually abused W.S. He testified that, on the day in question, he arri ved home from work, changed into shorts, warmed up some lunch, and began watching television in the dining room area. When he finished his lunch, Mr. Peck testified, he brought his plate in to the kitchen and saw W.S.’s mother8 near the sink. According to Mr. Peck, the mother was bent over such that “[h]er butt crack was hanging out.” He claimed that t he sight aroused him, so he app roached the mother and proceeded to rub his penis against her backside. Mr. Peck testified that he was not wearing any underwear and soon had an erection. {¶22} Mr. Peck stated that he and the mother were interrupted when W. S. emerged from the children’s bedroom and asked for help with her television. He testified that he immediately stopped what he was doing and offered to help W.S. According t o Mr. Peck, the mother did not object to him helping W.S., s o he took W.S. back to her bedroom . He indicated that the bedroom was only about five steps from th e kitchen and, while it had a door, he did not close or lock it when he went inside with W.S. He claimed that he helped W.S. with t he television before he heard a crash from the kitchen and quickly peeked his head out of the d oor. As he did so, Mr. Peck testified, the mother came into the room and began yelling at h im and hitting him. Mr. Peck indicated that he had no idea why the mother was hitting him. He also denied that his erection was protruding from his shorts or t hat he attempted t o hide it with a bucket. {¶23} When the mother testified, she denied that she and Mr. Peck had any sort of sexual encounter in the kitchen. It was her testimony that Mr. Peck w as sitting in the dining room area when W.S. came out of the childre n’s bedroom to ask for help. It also was her testimony that Mr. Peck went directly to the bedroom and only came into the kitche n a short while later to retrieve some suckers. She denied that he ever rubbed against her. Fur ther, as previously noted, her testimony as to what occurred when she walked into the children ’s bedroom was distinctly different than Mr. Peck ’s version of events. {¶24} The officer who responded to the mother’s 911 call testified th at she was extremely distraught when he arrived. He de scribed her as “hysterical” a nd testified that she reported seeing9 Mr. Peck in the children’s bedroom with W.S., trying to use a b ucket to cover the erection he had sticking out of his shorts. Conversely, the officer indicated that Mr. Peck was calm when they spoke. Mr. Peck informed the officer that he was only in the c hildren’s bedroom to help with the television and that he never t ouched W.S. Nevertheless, he ack nowledged that he had an erection at the time and “th at it looked bad.” {¶25} The mother acknowledged that she never actually saw Mr. Peck en gage in sexual conduct or contact with W.S. She also acknowledged that she to ld the police that W.S. backed away from Mr. Peck, not that he shoved her. Nevertheless, she maintained that Mr. Peck’s erect penis was exposed, that W.S. told her what he had done, and tha t she began hitting Mr. Peck when he tried hushing W.S. During her testimony, the State also int roduced a series of text message exchanges she had with Mr. Peck in the wake of this incident. In the messages, Mr. Peck repeatedly indicated that he was sorry for what he had done. T hough he never explicitly admitted that he had sexually abused W.S., he repeatedly sought the moth er’s forgiveness and wrote: “I need help i know there will never be a Good enough reason for w hat i have done to you and our family I’m sorry[.]” {¶26} Having reviewed the record, we cannot conclude that the trier o f fact clearly lost its way and created a manifest miscarriage of justice when it found Mr. Peck guilty of rape, sexual battery, and gross sexual imposition. See Otten , 33 Ohio App.3d at 340. The trier of fact was essentially presented with conflicting versions of the events. The mother claimed that she walked in on W.S. and Mr. Peck while his penis was fully exposed and e rect and that W.S. immediately disclosed that he had sexually abused her. Meanwhile, Mr. Peck claimed that he had an erection because of an earlier tryst with the mother, that his penis was never exposed, and that he had no idea why the mother was so upset. As the trier of fact, the tr ial court was in the best position to10 judge the credibility of the witnesses and to evaluate their te stimony accordingly. See State v.
Simmons , 9th Dist. Lorain No. 18CA011262, 2020-Ohio-614, ¶ 10. This C ourt has repeatedly rejected the notion that a verdict is against the manifest weig ht of the evidence simply “because the finder of fact chose to believe the State’s witnesses rathe r than the defendant’s version of the
events.” State v. Martinez , 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. Because Mr. Peck has not shown that this is the exceptional case where the evidence weighs heavily against his conviction, we reject his argument to the contrary. See Otten at 340. Accordingly, Mr. Peck’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE CAC FORENSIC INTERVIEW OF [W.S.] WHICH VIOLATED MR. PECK’S SIXTH AMENDMENT RIGHTS TO CONFRONT HIS WITNESSES AGAINST HIM BECAUSE IT WAS “TESTIMONIAL” AND NOT “MEDICAL TAKEN FOR THE PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT” AND WAS INADMISSIBLE UNDER EVID. R. 803(4) ESPECIALLY IN THAT THE COURT FOUND W.S. TO BE INCOMPETENT AS A WITNESS[.] {¶27} In his third assignment of error, Mr. Peck argues that the tria l court abused its discretion when it admitted the statements W.S. made at the chi ld advocacy center. He argues that W.S.’s statements were testimonial in nature, as they were not made for the purpose of medical diagnosis or treatment. Because W.S. was incompetent to testif y, Mr. Peck argues, the admission of her statements violated his constitutional rights. For the following reasons, we reject his argument. {¶28} “It is well settled that, ‘[t]o demonstrate reversible error, a n aggrieved party must demonstrate both error and resulting prejudice.’” State v. Austin , 9th Dist. Summit No. 28199, 2017-Ohio-7845, ¶ 30, quoting Princess Kim, L.L.C. v. U.S. Bank, N.A. , 9th Dist. Summit No. 27401, 2015-Ohio-4472, ¶ 18. See also Crim.R. 52(A). “Challenges to evidence based upon the11 Confrontation Clause and hearsay are subject to a harmless-erro r analysis.” State v. McNair , 9th Dist. Lorain No. 13CA010485, 2015-Ohio-2980, ¶ 33. “Where cons titutional error in the admission of evidence is extant, such error is harmless beyond a reasonable doubt if the remaining evidence, standing alone, constitutes overwhelming proof of [th e] defendant’s guilt.” State v.
Williams , 6 Ohio St.3d 281 (1983), paragra ph six of the syllabus. {¶29} Mr. Peck’s third assignment of e rror concerns the admission of statements W.S. made while being interviewed at the child advocacy center. In those statements, W.S. indicated that Mr. Peck made her perform fellatio, gave her candy for doi ng so, and instructed her not to tell. Mr. Peck argues that the court ought to have excluded her state ments because the State failed to establish that they were made f or the primary purpose of medica l diagnosis and treatment. See In
re E.L. , 9th Dist. Medina No. 18CA0060-M, 2019-Ohio-1490, ¶ 8, 22. He has claimed that both the interviews conducted by the i nterviewer and the nurse exami ner at the child advocacy center were deficient in several respects. Yet, even assuming arguend o that the trial court erred by admitting W.S.’s statements, the record supports the conclusion that the error was harmless beyond a reasonable doubt. {¶30} W.S.’s mother testified that W.S. made several statements direc tly to her when she walked in on Mr. Peck and W.S. in the children’s bedroom. Thos e statements were that Mr. Peck “made [W.S.] suck his wiener,” that “his wiener [was] a sucker, ” that he would “give her a sucker for doing that to him,” and that he told her “not to tell anybo dy ever.” Though defense counsel objected to the admission of those statements, the trial court admitted them as excited utterances.
See Evid.R. 803(2). On appeal, Mr. Peck has not addressed the adm issibility of W.S.’s statements to her mother or their effect on his convictions. See App.R. 16(A)(7). This Court will not construct12 an argument on his behalf. See Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). {¶31} W.S.’s statements to her moth er, taken in conjunction with the mother’s testimony about her own observations, established beyond a reasonable dou bt that Mr. Peck was guilty of rape, sexual battery, and gro ss sexual imposition. The stateme nts W.S. made at the child advocacy center were corroborative of the s tatements she made to her mot her. As such, we must conclude that any error in the admission of her child advocacy center st atements was harmless beyond a reasonable doubt. See Williams , 6 Ohio St.3d 281 at paragraph six of the syllabus. See also State
v. Person , 9th Dist. Summit No. 27600, 2016-Ohio-681, ¶ 25. Accordingly , Mr. Peck’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV MR. PECK WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL[.] {¶32} In his fourth assignment of error, Mr. Peck argues that he rece ived ineffective assistance of counsel. We disagree. {¶33} “[I]n Ohio, a properly licensed atto rney is presumed competent. ” State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. To prove ineffective assistance of counsel, one must establish that: (1) his counsel’s performance was deficient, an d (2) the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). Counsel’s performance is deficient if it falls below an objective standar d of reasonable representation. State v. Bradley , 42 Ohio St.3d 136 (1989), paragr aph two of the syllabus. Pre judice can be shown by proving “there exists a reasonable probability that, were it no t for counsel’s errors, the result of the trial would have been different.” Id. at paragraph three of the syllabus. “[T]he Court need not13

address both Strickland prongs if an appellant fai ls to prove either one.” State v. Lortz , 9th Dist. Summit No. 23762, 2008-Ohio-3108, ¶ 34. {¶34} Mr. Peck argues that he received ineffective assistance of coun sel for four reasons. First, he argues his attorney was ineffective for advising him to choose a bench trial, as the court had already heard damaging evidenc e against him in making its a dmissibility rulings. Second, he argues his attorney was ineffective for not introducing a diagr am or measurement of the onebedroom apartment where this in cident occurred, as it would hav e proven just how unlikely it was that any abuse occurred mere steps away from W.S.’s mother. Th ird, he argues his attorney was ineffective for not presenting a defense expert to refute any s uggestion that the redness observed in W.S.’s throat was related to the alleged assault. Finally, he argues his attorney was ineffective for not moving to suppress statem ents he made at the police sta tion, as they were the result of a custodial interrogation. {¶35} This Court has routinely recognized that “debatable trial strat egies do not constitute ineffective assistance of counsel.” State v. Shirley , 9th Dist. Summit No. 20569, 2002 WL 5177, *7 (Jan. 2, 2002). The choices to waive a jury, to rely on cro ss-examination rather than call a defense expert, and to forego the filing of a motion to suppres s may be considere d matters of trial strategy. See State v. Payne , 9th Dist. Lorain No. 18CA011383, 2019-Ohio-4218, ¶ 25 (choice not to file motion to suppress constituted trial strategy); State v. Spaulding , 9th Dist. Summit No. 28526, 2018-Ohio-3663, ¶ 55 (choice to rely on cross-examinatio n in lieu of calling an expert was a valid trial strategy); State v. Woods , 9th Dist. Medina No. 2589-M, 1997 WL 104634, *4 (Mar. 5, 1997) (choice to waive jury c onstituted trial tactic). Alth ough the court heard damaging evidence against Mr. Peck in its admissibility determinations, it is presumed that a court in a bench trial “only considers matter properly before it.” State v. Pleban , 9th Dist. Lorain No. 10CA009789,14 2011-Ohio-3254, ¶ 45. Given the inflammatory nature of Mr. Pec k’s charges, defense counsel may well have determined that a jury trial was not a viable opt ion. Likewise, his counsel strategically could have chosen t o forgo the filing of a motion to suppress. Mr. P eck testified that he chose to meet with the police at the station the day after t he incident, that he understood he was not under arrest, and that he knew he was free to leave. Defen se counsel was not obligated to pursue a motion to suppress when that motion was unlikely to su cceed. Nor was defense counsel obligated to call an expert in support of Mr. Peck’s defense. On cross-examination, the nurse examiner conceded that there could have been any number of reas ons for the redness at the back of W.S.’s throat. She did not definitively attribute the redne ss to a sexual assault, and counsel may well have decided not to draw add itional attention to that issu e by calling another witness to testify about the redness. {¶36} To the extent Mr. Peck argues his counsel was ineffective for n ot introducing a diagram or measurements of the apartment he shared with W.S.’s mother, he has not shown that he sustained resulting prejudice. See Bradley , 42 Ohio St.3d 136 at paragraph three of the syllabus. More than one witness indicated that the apartment was small, a nd Mr. Peck specifically testified that the kitchen was only about five steps away from the childr en’s bedroom. Mr. Peck has not shown that, but for his counsel’s failure to introduce a diagra m or measurements, he would not have been convicted. See id. {¶37} Upon review, Mr. Peck has faile d to demonstrate that he receive d ineffective assistance of counsel. Accordingl y, Mr. Peck’s fourth assignme nt of error is overruled.
III. {¶38} Mr. Peck’s assignments of error are overruled. The judgment of the Wayne County Court of Common Pl eas is affirmed.15 Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment i nto execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

B ETTY SUTTON FOR THE COURT

HENSAL, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assi stant Prosecuting Attorney, for Appellee.