[Cite as State v. Powell, 2019-Ohio-4345.]

 COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 107276 

 v. : 

 

CARLIN POWELL, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: October 24, 2019 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-15-598275-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Mary M. Frey, Assistant Prosecuting 

Attorney, for appellee. 

Mark A. Stanton, Cuyahoga County Public Defender, and 

Erika Cunliffe, Assistant Public Defender, for appellant. 

EILEEN T. GALLAGHER, P.J.: 

Defendant-appellant, Carlin Powell, appeals from his convictions 

following a jury trial. He raises the following assignments of error for review: 
1. Tina Stewart’s testimony detailing evidence collection by a forensic 

scientist who has since been fired for misconduct violated Powell’s right 

to confrontation and the state rules of evidence which bar such hearsay. 

2. Powell’s rights to due process and a fundamentally fair trial were 

compromised by the jury’s improper exposure to evidence of a third 

victim who the state did not call as a witness. 

3. Powell was deprived of his Sixth Amendment right to the effective 

assistance of counsel. 

After careful review of the record and relevant case law, we affirm 

Powell’s convictions. 

I. Procedural and Factual History 

In August 2015, Powell was named in a seven-count indictment, 

charging him with rape in violation of R.C. 2907.02(A)(2) (Count 1); kidnapping in 

violation of R.C. 2905.01(A)(4) (Count 2); rape in violation of R.C. 2907.02(A)(2), 

with a sexually violent predator specification (Count 3); kidnapping in violation of 

R.C. 2905.01(A)(4), with sexual motivation and sexually violent predator 

specifications (Count 4); rape in violation of R.C. 2907.02(A)(2), with a sexually 

violent predator specification (Count 5); corruption of a minor in violation of R.C. 

2907.04(A) (Count 6); and kidnapping in violation of R.C. 2905.01(A)(4), with 

sexual motivation and sexually violent predator specifications (Count 7). The 

indictment stemmed from allegations that Powell sexually assaulted three victims: 

(1) M.S., with the offenses occurring on or about September 20, 1997 (Counts 1 and 

2); (2) D.E., with the offenses occurring on or about January 15, 1997 (Counts 3 and 

4); and (3) A.W., with the offenses occurring on or about November 16, 1998 (Counts 

5-7). 
In November 2016, Powell filed a motion to dismiss for preindictment 

delay, arguing that he was prejudiced by the unjustifiable delay between the alleged 

commission of the offenses and the time he was indicted. Following a hearing, the 

trial court denied Powell’s motion to dismiss. In January 2018, the matter 

proceeded to a jury trial.1

At trial, A.W. testified that when she was 15 years old, she was walking 

to school on the morning of November 16, 1998. As she was walking, a vehicle 

containing two men pulled up next to her. A.W. testified that she knew the driver of 

the vehicle from the neighborhood. A.W. described the driver as a bald man with 

brown hair and a beard. She described the passenger as being a dark-skinned man 

with dreadlocks. A.W. stated that she was speaking with the driver when she was 

suddenly pulled inside the vehicle by the man in the passenger’s seat. A.W. testified 

that she was scared and did not feel free to leave the vehicle. 

At some point, A.W. fell asleep while she was inside the vehicle. When 

she woke up, A.W. was at an unfamiliar house. A.W. testified that she could not 

remember specific details about the house, but recalled seeing people inside who 

seemed “drugged up.” A.W. believed that she may have been drugged herself, and 

that she remained in the house for “maybe three days.” While inside the home, A.W. 

alleged that she was forced to have nonconsensual vaginal sex with the bearded man, 

who she identified at trial as being Powell. When A.W. was eventually able to leave 

 1 The sexually violent predator specifications associated with Counts 3, 4, 5, and 7 

were tried to the bench. 
the house, she went to the nearest payphone and called her grandfather. She was 

subsequently taken to the hospital where a sexual assault kit was collected. A.W. 

recalled the police retrieving her clothing as potential evidence. However, A.W. 

could not remember whether she spoke to a police officer about the incident. 

In 2015, A.W. was contacted by Investigator Nicole DiSanto to discuss 

the November 1998 incident. During this meeting, A.W. was shown a photo array 

by a blind administrator. A.W. testified that she identified Powell’s photograph from 

the photo array and wrote that she was “a hundred percent sure” he was the person 

who sexually assaulted her. 

During her cross-examination, defense counsel thoroughly 

questioned A.W. about perceived inconsistencies between her trial testimony and 

the statements she initially made to law enforcement and medical personnel. A.W. 

was shown a copy of her police report, marked defendant’s Exhibit A. The relevant 

inconsistencies between A.W.’s testimony and the information contained in the 

police report included (1) A.W.’s description of the vehicle that pulled up beside her, 

(2) A.W.’s accounting of the number of individuals inside the vehicle, (3) A.W.’s 

description of the vehicle, (4) A.W.’s physical description of the perpetrators (5) the 

location of the alleged sexual assault, (6) A.W.’s description of the assault, (7) A.W.’s 

accounting of the number of individuals who perpetrated the alleged sexual assault, 

and (8) the actions A.W. took before returning home. A.W. testified that she 

disagreed with many of the statements contained in the police report, but qualified 

her testimony, stating “then again, it happened 20 years ago.” 
Captain Renee Kane of the Cleveland Police Department testified that 

at approximately 1:30 a.m. on November 17, 1998, she responded to a missing 

persons report filed by A.W.’s mother. Captain Kane stated that she generated a 

missing persons report and initiated an investigation to locate A.W., which proved 

unsuccessful. However, the Cleveland police were notified on November 19, 1998, 

that A.W. was located by her family. 

Retired Cleveland police officer, Matthew Stepic, testified that he 

responded to MetroHealth Medical Center for the reported rape of A.W. Officer 

Stepic testified that he interviewed A.W. about the incident and collected her sexual 

assault kit, which he transported to the police department’s property room. Officer 

Stepic then completed a written police report. 

D.E. testified that in January 1997, she met Powell at a convenient 

store near the apartment she shared with her sister. After having a conversation and 

smoking marijuana together, D.E. and Powell exchanged phone numbers and 

agreed to meet up again. Approximately one week later, Powell picked D.E. up in 

his vehicle. D.E. stated that Powell had a friend with him in the car. She described 

the friend as a white man with curly blonde hair. Powell then drove to a home 

located in Cleveland, Ohio. Powell and D.E. went inside the home, while Powell’s 

friend remained in the car. 

Once inside the home, D.E. and Powell began smoking marijuana. 

D.E. stated that there were two other individuals with them at the time. However, 

after a period of time, the other two individuals went upstairs, leaving D.E. and 
appellant alone. D.E. testified that Powell suddenly reached over and grabbed her 

by the neck. D.E. described the incident as follows: 

I was startled, because I really didn’t know what was going on. And I 

was trying to push him away to stop and he pushed me down. He had 

me by my neck and he had my arms. He was quite bigger than me. And 

I started to try to scream for the other people who were in the house to 

come down and help me. So I began to yell for some help, like “Please 

help me,” you know, “I need help, I need help, I need help.” Nobody 

came. I started to fight with him to try to get him off of me and he just 

kept squeezing harder, and he said that if I kept fighting that he was 

going to hurt me, he was going to beat me up, and he wasn’t going to 

stop. So I kind of relaxed and he started to undress me and also, you 

know, himself, and he began to penetrate me. 

* * * 

He had me, he was holding me tightly, and, you know, he told me, “You 

shut the fuck up. You’re not leaving here.” I did not feel that I had a 

choice. So after that had happened and I kept asking him to please stop 

and he told me to shut the fuck up, he hit me in the face and it was done. 

He just got up off of me. And I was sobbing and crying and — I don’t 

really know what I thought was going to happen next. I got up and I 

moved away from him. 

D.E. clarified that Powell held her down and penetrated her vagina 

with his penis. When she returned home, D.E. immediately told her sister that she 

had been raped and went to the hospital for medical examination, where a sexual 

assault kit was completed. 

D.E. testified that a Cleveland police detective arrived at her home the 

next day to take a statement. D.E. admitted that she initially told detectives that the 

rape occurred inside Powell’s vehicle. D.E. further conceded that she did not tell 

detectives about smoking marijuana with Powell. She explained that she did not tell 

the police the complete truth because she blamed herself for what happened, did not 
want her father to know she was smoking marijuana, and did not want to be “looked 

at differently” for going to a place she did not know with a person she had just met. 

Years later, D.E. was contacted by Investigator Nicole DiSanto to 

discuss the January 1997 incident. During this meeting, D.E. was shown a photo 

array by a blind administrator. D.E. testified that she identified Powell as the person 

who sexually assaulted her. D.E. stated that she knew it was Powell “immediately 

when [she] saw [the photo array].” 

During her cross-examination, D.E. was confronted with 

inconsistencies between her trial testimony and her initial statement to the police 

and medical personnel. In relevant part, the records indicated that (1) D.E. stated 

that she met Powell at a K-Mart, rather than a local convenience store; (2) D.E. 

described the passenger in Powell’s vehicle as a black male; (3) Powell kissed her in 

the back seat of the vehicle; and (4) that the sexual assault occurred inside the 

vehicle. Defense counsel also referenced D.E.’s criminal history and police records 

indicating that D.E. failed to appear for an appointment to further discuss the 

incident. 

Retired sex-crimes detective, Sgt. Michael Kmiecik of the Cleveland 

Police Department, testified that he conducted a field interview of D.E. in 1997. He 

testified that he had no independent recollection of the conversation. However, 

having reviewed the police report, Sgt. Kmiecik testified that when the information 

gathered from the interview with D.E. was presented to the prosecutor, it was 

determined that there was “insufficient evidence to sustain a charge or to have 
probable cause to charge anyone at that time.” Accordingly, the file pertaining to 

D.E. was marked as “no further investigation leads at this time.” During his crossexamination, Sgt. Kmiecik testified that in 2007, a follow-up detective reached out 

to D.E. “after getting a hit on DNA.” Sgt. Kmiecik stated that the follow-up detective 

made contact with D.E. and scheduled an appointment to further discuss her case. 

However, D.E. was “a no-show for the appointment” and her case was closed 

following a consultation with the prosecutor. 

Nicole DiSanto is employed as an investigator by the Cuyahoga 

County Prosecutor’s Office. DiSanto testified that she began investigating the sexual 

assault of A.W. after the prosecutor’s office received information linking Powell’s 

DNA to the DNA recovered from A.W.’s sexual assault kit. Upon receiving this 

information, DiSanto reviewed the original police report and contacted A.W. about 

the incident. DiSanto testified that, before discussing the facts and circumstances 

of the incident with A.W., a blind administrator presented A.W. with a photo array. 

DiSanto stated that A.W. identified Powell as her attacker and confirmed that the 

incident was not a consensual encounter. 

DiSanto testified that she also travelled to North Carolina to conduct 

a recorded interview with Powell regarding his recollection of A.W. According to 

DiSanto, Powell admitted that he “[knew] her from the neighborhood.” However, 

he denied having sex with A.W. and stated that he would not have been having sex 

with a 15-year old when he was 21-years old. 
DiSanto also testified at trial regarding her investigation of the sexual 

assault committed against D.E. She stated that she began investigating the case after 

the prosecutor’s office received a DNA hit linking Powell’s DNA to the DNA 

recovered from D.E.’s sexual assault kit. Upon receiving this information, DiSanto 

interviewed D.E. in April 2015. During the interview, D.E. was forthright, 

emotional, and told DiSanto right away that she had originally lied to the police 

about the circumstances of the sexual assault when she was 16-years old. DiSanto 

stated that a blind administrator presented D.E. with a photo array and that D.E. 

“was able to identify Carlin Powell as her attacker.” DiSanto testified that she also 

conducted an interview with Powell regarding his interactions with D.E. DiSanto 

testified that Powell stated that he could not remember D.E.’s face. He further 

denied having intercourse with D.E. 

When confronted with the DNA evidence obtained from A.W.’s and 

D.E.’s sexual assault kits, Powell denied ever raping anyone. However, Powell also 

testified that “he was doing drugs and everything and doesn’t remember anything” 

from the relevant time period. DiSanto further testified that “as soon as DNA was 

brought up, he said, ‘Well, it was on her panties.’” When DiSanto asked why he 

would be specific about panties, Powell stated, “Well, because that’s where it would 

leak out and that’s where someone’s semen would go if they had sex.” At the 

conclusion of the interview, Powell consented to a buccal swab, which was submitted 

to the Ohio Bureau of Criminal Investigation for comparison to the evidence 

contained in A.W.’s and D.E.’s sexual assault kits. 
Tina Stewart testified that she was formerly employed as a scientific 

examiner with the Cleveland Police forensics laboratory. Stewart worked in the 

serology section of the forensic laboratory during the time period when D.E.’s and 

A.W.’s sexual assault kits and clothing were first analyzed. Stewart provided 

extensive testimony regarding the chain of custody protocol and procedures utilized 

by the forensic laboratory. 

Stewart explained that when evidence was delivered to the laboratory 

for testing, the evidence was assigned a six-digit number that was unique to that 

piece of evidence. A forensic analyst would then generate a “matching [laboratory] 

card with the same laboratory number, and on that card would have information 

about that evidence.” Stewart testified that when the forensic analysis was 

completed, the results of the testing would be written on the front side of the 

corresponding laboratory card. If evidence submitted to the laboratory tested 

positive for blood or semen, the evidence would be placed in an individually sealed 

envelope, marked with the unique six-digit number previously assigned to that 

evidence, and stored in the laboratory in case further testing was required. The 

remaining evidence was transported to the Cleveland Police property room. 

Stewart also testified regarding the procedure that was utilized for 

testing evidence, including the steps taken to prevent the contamination of evidence. 

She explained, in relevant part: 

The analysts changed their gloves between different evidence, and then 

when the evidence was finished being analyzed it would be sealed with 

evidence tape. And also, on the back of the [laboratory] cards we have 
the chain of custody listed where the evidence has been, so we have a 

written copy of where all the evidence has gone. 

If evidence came into the laboratory unsealed or with a broken seal, that information 

would be noted by the analyst on the laboratory card. 

Regarding D.E.’s case, the state presented Stewart with D.E.’s 

forensic laboratory report, marked state’s exhibit No. 25. Stewart testified that 

D.E.’s sexual assault kit and clothing were submitted to the laboratory on 

January 17, 1998. The evidence was assigned a unique six-digit number. Stewart 

testified that state’s exhibit No. 25 is a copy of the laboratory card used by the 

analysts to record all pertinent information about the tested evidence. Stewart 

explained that the front side of the laboratory card contained the results of the 

serology testing and the initials of the analysts who performed the serology testing. 

In turn, the back of the card listed the evidence submitted to the laboratory and the 

chain of custody log. Stewart then identified each piece of evidence submitted to the 

laboratory for testing in D.E.’s case. She also discussed the custodial history of the 

relevant evidence by referencing the chain of custody information delineated on the 

back of the laboratory card. Stewart clarified that she was not the primary analyst 

assigned to conduct the forensic analysis in D.E.’s case. 

Regarding the serology testing performed on the evidence submitted 

in A.W.’s case, the state presented Stewart with A.W.’s forensic laboratory report, 

marked state’s exhibit No. 26. Stewart testified the A.W.’s rape kit and clothing were 

submitted to the laboratory on November 23, 1998. The evidence was assigned a 
unique six-digit number. Stewart testified that state’s exhibit No. 26 is a copy of the 

laboratory card, which also listed the evidence tested, the results of the serology 

testing, and the relevant chain of custody information. Stewart identified the 

evidence that was submitted to the laboratory for testing and discussed the custodial 

history of the relevant evidence by referencing the chain of custody information 

delineated on the back of the laboratory card. Stewart confirmed that she did not 

perform the serology testing in A.W.’s case. 

During her cross-examination, Stewart was questioned extensively 

about the possibility of evidence being contaminated due to the procedures used in 

1998 that are no longer standard practice. For instance, Stewart conceded that the 

laboratory received most of D.E.’s hospital clothing in a single bag. While Stewart 

indicated that D.E.’s underwear was stored separately, she agreed that placing all of 

D.E. remaining clothing in one bag would not comply with current standard 

procedures. In addition, Stewart admitted that the laboratory reports did not 

specify the tests that were performed on the evidence collected. Stewart was also 

questioned at length about the primary analyst who worked on both D.E. and A.W.’s 

cases. Stewart testified that the analyst, J.M.S., was subsequently fired, then 

reinstated, by the laboratory “because they thought he did an error with one of his 

statistics,” resulting in the reversal of a criminal conviction in an unrelated case. 

During her direct examination, Stewart did not provide any testimony 

regarding the results of the serology testing that was performed in each case. 

However, during her cross-examination, Stewart was asked for the first time to 
discuss the results of the testing in D.E.’s case. Relevant to this appeal, Stewart 

confirmed that D.E.’s vaginal swabs tested negative for semen and blood; her vaginal 

smear slides tested negative for spermatozoa; the “outside area of rear of blue and 

black panties” tested positive for seminal fluid; and the “seat area of jeans, stain on 

right front leg of jeans” tested positive for seminal fluid. On redirect examination, 

Stewart reiterated the results of D.E.’s serology tests and explained the nature of the 

forensic tests that were performed in each case. 

Heather Bizub, a DNA analyst for the Bureau of Criminal 

Identification, testified that she compared the DNA derived from Powell’s buccal 

swab to the biological evidence extracted from D.E.’s sexual assault kit and the 

clothing collected from her at the hospital. Her findings were reduced to a DNA 

report, dated September 11, 2015. Bizub testified that D.E.’s vaginal swab contained 

a mixture of DNA, with D.E. being a major contributor, as well as male DNA. 

However, Bizub explained that the data was insufficient for her to make a 

comparison or draw a conclusion regarding the male contributor. Thus, Bizub 

stated that she could not provide an opinion as to whether Powell was the minor 

contributor. Regarding bodily fluid extracted from a cutting of D.E.’s underwear, 

Bizub testified that Powell was identified as the sole contributor. She stated, to a 

reasonable degree of scientific certainty, that the frequency of a similar DNA 

appearing was one in 27 quadrillion-60 trillion unrelated individuals. 

Bizub testified that she was also involved in the DNA testing 

performed on the evidence submitted in A.W.’s case. Bizub stated that she 
compared the DNA derived from Powell’s buccal swab to the biological evidence 

extracted from A.W.’s sexual assault kit. Her findings were reduced to a DNA report, 

dated September 14, 2015. Bizub testified that an anal sample taken from A.W. 

contained a mixture of DNA, with A.W. being a major contributor. The sample 

contained male DNA, but the profile was insufficient for Bizub to render a 

conclusion about the source of the minor contributor. However, Bizub testified that 

she identified Powell as a contributor to the seminal fluid mixture extracted from 

A.W.’s pubic hair combings, a vaginal swab, and two separate skin swabs. Bizub 

stated, to a reasonable degree of scientific certainty, that for the pubic hair combings 

the frequency of a similar DNA appearing was one in 533 trillion unrelated 

individuals. For the vaginal swab, the frequency was one in 36 quintillion-310 

quadrillion unrelated individuals. For the first skin swab, the frequency was one in 

36 quintillion unrelated individuals. Finally, for the second skin swab, the frequency 

was one in 36 quintillion-310 quadrillion unrelated individuals. 

M.S. did not appear for trial. Accordingly, the trial court granted the 

state’s motion to dismiss Counts 1 and 2 of the indictment, which correlated to the 

conduct alleged to have been committed against M.S. Defense counsel rested 

without presenting any witnesses. 

At the conclusion of trial, the jury found Powell guilty of Count 3, the 

rape of D.E.; Count 4, the kidnapping of D.E., with the sexual motivation 

specification; and Count 6, corruption of a minor involving A.W. Powell was found 

not guilty of the rape and kidnapping offenses alleged to have been committed 
against A.W. The trial court further found Powell not guilty of the sexually violent 

predator specifications that were attached to Counts 3 and 4. 

At the sentencing hearing, the trial court found that the rape and 

kidnapping offenses committed against D.E. were allied offenses of similar import. 

The state elected to proceed with sentencing on the rape offense, and the trial court 

imposed a nine-year term of imprisonment. The trial court then imposed an 18-

month term of imprisonment on the corruption of a minor offense, to run 

consecutively to the rape offense, for an aggregate prison term of 10 years and six 

months. 

Powell now appeals from his convictions. 

II. Law and Analysis 

A. Hearsay and the Confrontation Clause 

In his first assignment of error, Powell argues Tina Stewart’s 

testimony relied on hearsay statements and violated his right to confrontation. He 

contends that Stewart’s testimony was not based on her own personal knowledge, 

and relied on reports that “lacked the trustworthiness required for admissibility 

under Evid.R. 803(6).” 

Powell did not object to Stewart’s testimony or the admission of the 

forensic lab records, marked state’s exhibits Nos. 25 and 26. He has therefore 

waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or defects affecting 

substantial rights may be noticed although they were not brought to the attention of 

the court.” “Plain error exists when it can be said that but for the error, the outcome 
of the trial would clearly have been otherwise.” State v. Issa, 93 Ohio St.3d 49, 56, 

752 N.E.2d 904 (2001), citing State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 

894 (1990). 

The Confrontation Clause of the Sixth Amendment to the United 

States Constitution, made applicable to the states through the Fourteenth 

Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy 

the right * * * to be confronted with the witnesses against him.” Further, Section 10, 

Article I of the Ohio Constitution provides that “[i]n any trial, in any court, the party 

accused shall be allowed * * * to meet the witnesses face to face * * *.” 

“‘Hearsay’ is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless 

it falls within one of the exceptions listed in Evid.R. 803. Whenever the state seeks 

to introduce hearsay into a criminal proceeding, the court must determine not only 

whether the evidence fits within an exception, but also whether the introduction of 

such evidence offends an accused’s right to confront witnesses against him. State v. 

Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 29. 

The Confrontation Clause prohibits the admission of an out-of-court 

statement of a witness who does not appear at trial if the statement is testimonial, 

unless the defendant has had an opportunity to cross-examine the witness. 

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

(2004). “Testimonial” statements generally include hearsay statements “‘made 
under circumstances which would lead an objective witness reasonably to believe 

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

amicus brief of the National Association of Criminal Defense Lawyers. In 

determining whether a statement is testimonial for purposes of the Confrontation 

Clause, “‘courts should focus on the expectation of the declarant at the time of 

making the statement; the intent of a questioner is relevant only if it could affect a 

reasonable declarant’s expectations.’” State v. Thomas, 8th Dist. Cuyahoga No. 

101202, 2015-Ohio-415, ¶ 21, quoting State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio5482, 855 N.E.2d 834, paragraph two of the syllabus. 

The Confrontation Clause does not bar the admission of hearsay 

statements that are not testimonial. State v. Siler, 116 Ohio St.3d 39, 2007-Ohio5637, 876 N.E.2d 534, ¶ 21. Indeed, where nontestimonial hearsay is at issue, the 

Confrontation Clause is not implicated and need not be considered. Whorton v. 

Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.E.2d 1 (2007). 

In this case, the challenged testimony concerns Stewart’s references 

to the forensic laboratory reports generated in each case. The exhibits contain a 

photocopy of the front and back of the laboratory cards described by Stewart during 

her direct examination. The front side of the card, labeled “Forensic Laboratory 

Report,” lists, in relevant part (1) the name of the victim, (2) a general description of 

the evidence submitted for testing, (3) the six-digit number assigned to the evidence, 

(4) the date the evidence was submitted to the laboratory, (5) the results of the 

forensic testing, and (6) the initials of the analyst or analysts who performed the 
forensic testing. In turn, the back side of the card provides a detailed description of 

each piece of evidence submitted for testing, and lists the chain of custody history of 

the evidence, including dates and signatures that correspond to when, where, and 

by whom the evidence was moved. Significantly, the forensic laboratory report was 

generated before Powell was identified as a suspect. Thus, the report does not 

identify Powell as the source of the seminal fluid discovered in each case. 

On appeal, Powell asserts that Stewart “did not personally examine 

any of the physical evidence, nor did she come to any independent conclusion 

therefrom.” Referencing the scientific conclusions reached in each laboratory 

report, Powell contends he was unconstitutionally prevented from cross-examining 

the lead analyst, J.M.S., about the testimonial “analyses and conclusions he 

reached” in each case. Thus, Powell argues the trial court circumvented his 

constitutional right to confrontation by permitting Stewart to authenticate the 

laboratory records. 

For the purposes of clarity, we begin our analysis by addressing the 

admissibility of the information contained on the front side of each forensic 

laboratory card, including the results of the serology tests performed in each case. 

Relevant to this issue are several decisions rendered by the United States Supreme 

Court. 

In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 

L.Ed.2d 314 (2009), the trial court admitted into evidence three “certificates of 

analysis” setting forth “the results of forensic analysis which showed that material 
seized by the police and connected to the defendant was cocaine.” Melendez-Diaz, 

557 U.S. at 307, 308. The trial court admitted the notarized certificates, without live 

testimony, “pursuant to state law as prima facie evidence of the composition, quality, 

and the net weight of the narcotic analyzed.” Id. at 309. After he was convicted, the 

defendant appealed, arguing “that admission of the certificates violated his Sixth 

Amendment right to be confronted with the witnesses against him.” Id.

In a five-to-four decision, the United States Supreme Court reversed 

the defendant’s conviction, holding that the notarized certificates fell “within the 

core class of testimonial statements” because they were “quite plainly affidavits: 

declarations of facts written down and sworn to by the declarant before an officer 

authorized to administer oaths.” Id. at 310 The court explained that the analysts’ 

affidavits were introduced into evidence for the purpose of proving the truth of what 

they asserted, specifically that the substance in question contained cocaine: 

The fact in question is that the substance found in the possession of 

Melendez-Diaz * * * was, as the prosecution claimed, cocaine — the 

precise testimony the analysts would be expected to provide if called at 

trial. The “certificates” are functionally identical to live, in-court 

testimony, doing “precisely what a witness does on direct 

examination.” 

Id. at 310-311, quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 

L.Ed.2d 224 (2006). Thus, “[a]bsent a showing that the analysts were unavailable 

to testify at trial and that [the defendant] had a prior opportunity to cross-examine 

them, [he] was entitled to ‘be confronted with’ the analysts at trial.” Id. at 311, 

quoting Crawford, 541 U.S. 36, at 54, 124 S.Ct. 1354, 158 L.Ed.2d 177. The court 
further rejected the respondent’s argument that the analysts’ affidavits are 

admissible without confrontation because they are “akin to the types of official and 

business records admissible at common law.” The court stated, in relevant part: 

Whether or not [the affidavits] qualify as business or official records, 

the analysts’ statements here — prepared specifically for use at 

petitioner’s trial — were testimony against petitioner, and the analysts 

were subject to confrontation under the Sixth Amendment. 

Id. at 324. 

In Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 

L.Ed.2d 610 (2011), the Supreme Court was confronted with a situation where one 

forensic analyst prepared and certified a report determining the defendant’s bloodalcohol concentration, but another analyst, who was not involved in the analysis of 

the defendant’s blood, introduced the report at trial. Although the witness was a 

“knowledgeable representative of the laboratory” who could “explain the lab’s 

processes and the details of the report,” id. at 2723 (Kennedy, J., dissenting), the 

majority held that the surrogate witness was not a proper substitute for the analyst 

who had conducted the test. Thus, the Supreme Court found the admission of the 

evidence to be a violation of the confrontation clause, stating: 

The question presented is whether the Confrontation Clause permits 

the prosecution to introduce a forensic laboratory report containing a 

testimonial certification — made for the purpose of proving a particular 

fact — through the in-court testimony of a scientist who did not sign 

the certification or perform or observe the test reported in the 

certification. We hold that surrogate testimony of that order does not 

meet the constitutional requirement. The accused’s right is to be 

confronted with the analyst who made the certification, unless that 

analyst is unavailable at trial, and the accused had an opportunity, 

pretrial, to cross-examine that particular scientist. 
Id. at 2710. 

Shortly after Bullcoming, the Supreme Court decided Williams v. 

Illinois, 567 US. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), a divided opinion that 

involved a rape prosecution. At trial, an expert testified she obtained a DNA profile 

report from an independent lab based on a semen specimen taken from a vaginal 

swab of the victim. The lab report was not introduced into evidence, but the expert 

testified she compared the DNA profile contained in the lab report to the defendant’s 

recorded DNA profile and concluded it was a match. The defendant challenged the 

expert’s testimony that relied upon the lab report on the basis the report’s admission 

without testimony from its author violated the Confrontation Clause. 

The plurality opinion relied in part on Federal Rule of Evidence 703 

and held, “[o]ut-of-court statements that are related by the expert solely for the 

purpose of explaining the assumptions on which that opinion rests are not offered 

for their truth and thus fall outside the scope of the Confrontation Clause.” Id. at 

58. Alternatively, the plurality applied the primary purpose test to conclude the 

underlying lab report was itself nontestimonial, and thus beyond the reach of the 

Confrontation Clause, because the report did not identify the defendant, was not 

inherently inculpatory, and was created “before any suspect was identified.” Id. The 

report “was sought not for the purpose of obtaining evidence to be used against 

petitioner, who was not even under suspicion at the time, but for the purpose of 

finding a rapist who was on the loose.” Id. The plurality thus opined the lab report 

differed from the certificates of analysis and reports disputed in Melendez-Diaz and 
Bullcoming, which were created for the sole purpose of providing evidence against 

a particular defendant and were used to establish the truth of the matter asserted. 

Id. at 2242. 

In this case, it is undisputed that Stewart was not the primary analyst 

in either case and, in fact, had no involvement in the forensic analysis performed in 

A.W.’s case. With that said, however, we find the nature and scope of Stewart’s 

testimony to be distinguishable from evidence challenged in Melendez-Diaz and

Bullcoming. As noted in Melendez-Diaz, “it is the obligation of the prosecution to 

establish the chain of custody for evidence sent to testing laboratories — that is, to 

establish ‘the identity and integrity of physical evidence by tracing its continuous 

whereabouts.’” Id., 557 U.S. 305, at 335, 129 S.Ct. 2527, 174 L.Ed.2d 314 (Kennedy, 

J., dissenting). Here, the state’s sole purpose of presenting Stewart as a prosecution 

witness was to authenticate the laboratory’s chain of custody records. Significantly, 

Stewart provided no testimony during her direct examination regarding the nature 

of the serology tests performed or the scientific conclusions reached by the lead 

forensic analyst in each case. 

Under these circumstances, we find Stewart’s testimony, and her 

reliance on the challenged forensic reports, was not offered for the truth of the 

scientific conclusions reached by other analysts in the forensic laboratory. As stated, 

Stewart provided no testimony during her direct examination regarding the results 

of the serology tests performed in each case, nor did she offer an opinion regarding 

the scientific accuracy of those results. In addition, there is no indication in this 
record to suggest the challenged forensic laboratory reports were published to the 

jury during Stewart’s testimony. Thus, information concerning the presence of 

seminal fluid on clothing submitted in D.E.’s case had not been provided to the jury 

until defense counsel questioned Stewart about the specific results of the forensic 

testing during her cross-examination. Defense counsel thus invited the testimony 

now complained of on appeal. State v. Seiber, 56 Ohio St.3d 4, 17, 564 N.E.2d 408 

(1990) (“A party cannot take advantage of an error he invited or induced.”). 

 It is evident that defense counsel questioned Stewart about the 

results of the serology testing in an effort to (1) challenge the reliability of J.M.S.’s 

laboratory work, and (2) suggest the seminal fluid discovered on D.E.’s clothing was 

caused by cross-contamination and/or inadequate testing procedures. This was a 

strategic decision by defense counsel that intended to challenge the weight of the 

subsequent DNA evidence. Nevertheless, any potential hearsay or confrontation 

arguments concerning Stewart’s testimony about the nature of the serology tests 

performed, or the scientific conclusions rendered in the forensic laboratory reports, 

was invited error. The challenged exhibits were only offered into evidence after 

defense counsel opened the door, thereby permitting the state to further develop the 

record about the results of the serology testing performed by Stewart’s colleagues. 

Moreover, even if we were to conclude that the trial court’s admission 

of the serology results violated Evid.R. 803 and/or the Confrontation Clause, Powell 

has not demonstrated plain error. The results of the serology testing were minimally 

probative when compared to the subsequent DNA testing that identified Powell as a 
contributor to the DNA profiles discovered in the victim’s biological evidence. 

Notwithstanding his references to the lead analysts’ past misconduct in an unrelated 

case, Powell has provided no basis to conclude that the laboratory’s custodial and 

testing procedures compromised the integrity or accuracy of the subsequent DNA 

analysis. 

With respect to the admission of the remaining portions of the 

forensic laboratory report, including the inventory of evidence and chain of custody 

log reflected on the back side of the laboratory card, we find no error. 

Evid.R. 803(6) creates a hearsay exception for “records of regularly 

conducted activity.” This rule excepts business records from exclusion at trial if they 

are made in the course of a regularly conducted business activity “because the courts 

presume that such records are trustworthy given the self-interest to be served by the 

accuracy of such entries.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-

Ohio-4047, ¶ 21, citing Weis v. Weis, 147 Ohio St. 416, 425-426, 72 N.E.2d 245 

(1947). 

In order to qualify for the business-records exception, a record must 

meet the following criteria (1) the record must be one recorded regularly in a 

regularly conducted activity; (2) a person with knowledge of the act, event, or 

condition recorded must have made the record; (3) it must have been recorded at or 

near the time of the act, event, or condition; and (4) the party who seeks to introduce 

the record must lay a foundation through testimony of the record custodian or some 

other qualified witness. State v. Boiani, 8th Dist. Cuyahoga No. 98314, 2013-Ohio-
1342, ¶ 29, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, 

¶ 171. 

The phrase “other qualified witness” does not necessarily mean that 

the witness must have firsthand knowledge of the transaction giving rise to the 

record. State v. Sherrills, 8th Dist. Cuyahoga No. 89844, 2008-Ohio-1950, ¶ 31; 

citing State v. Vrona, 47 Ohio App.3d 145, 547 N.E.2d 1189 (9th Dist.1988). 

Rather, it must be demonstrated that the witness is sufficiently familiar 

with the operation of the business and with the circumstances of the 

record’s preparation, maintenance, and retrieval, that he can 

reasonably testify on the basis of this knowledge that the record is what 

it purports to be, and that it was made in the ordinary course of 

business consistent with the elements of Rule 803(6). 

Sherrills at id., citing State v. Shaheen, 3d Dist. Hancock No. 5-97-03, 1997 Ohio 

App. LEXIS 3487 (July 29, 1997); State v. Patton, 3d Dist. Allen No. 1-91-12, 1992 

Ohio App. LEXIS 997 (Mar. 5, 1992). 

Based on Stewart’s experience and knowledge concerning the 

procedures and standards followed by the forensic laboratory, we find no abuse of 

discretion in allowing her, a qualified witness, to identify and authenticate the 

itemized list of submitted evidence and the chain of custody logs. Here, Stewart 

provided extensive testimony concerning her employment history in the serology 

department of the forensic laboratory. Stewart stated that she worked in the 

department at the time the evidence pertaining to the victims was submitted to the 

laboratory, and had firsthand knowledge of the laboratory’s custodial procedures 

and chain-of-custody protocol. During her direct examination, Stewart explained 
how evidence is received, maintained, and cataloged in the laboratory’s ordinary 

course of business. Stewart described the methods utilized by the forensic analysts 

to prevent evidence contamination, and generally described the type of information 

that would be chronicled by the analyst in the laboratory report. Regarding the 

reports generated in A.W.’s and D.E.’s cases, Stewart discussed the scope of the 

information set forth in each report and stated that the information was 

contemporaneously recorded in the laboratory’s regular course of business. 

In an effort to challenge the trustworthiness of the relevant records, 

Powell again relies on Stewart’s testimony that the primary analyst, J.M.S., was fired 

from the laboratory after a rape conviction was reversed due to his statistical error. 

However, Evid.R. 803(6) contemplates the trustworthiness of specific exhibits at the 

time they were made. Bank of N.Y. Mellon v. Broyles, 7th Dist. Mahoning No. 16-

MA-0093, 2018-Ohio-357, ¶ 16. Here, the circumstances relied upon by Powell 

provide no basis to suggest that the itemized list of evidence or the chain-of-custody 

logs were inaccurate or fraudulently maintained. A conclusion to the contrary would 

require this court to rely on speculative arguments concerning J.M.S.’s character 

and past actions in an unrelated case. 

Accordingly, we find no error in the acceptance of Stewart’s testimony 

or the court’s admission of the corresponding records. The chain of custody logs 

constituted reliable, nontestimonial hearsay that qualifies for the business-record 

exception under Evid.R. 803(6). In addition, we find no Confrontation Clause 

violation. We recognize that whether a business record meets a hearsay exception 
is immaterial in regard to the Confrontation Clause; it is the nontestimonial 

character of the record that removes it from the purview of the Confrontation 

Clause. As the United States Supreme Court has explained: 

Business and public records are generally admissible absent 

confrontation not because they qualify under an exception to the 

hearsay rules, but because — having been created for the 

administration of an entity’s affairs and not for the purpose of 

establishing or proving some fact at trial — they are not testimonial. 

Melendez-Diaz, 557 U.S. 305, at 324, 129 S.Ct. 2527, 174 L.Ed.2d 314 

(2009). However, in this case, the list of evidence and chain of custody 

logs were not prepared for the purpose of proving a fact at trial. Indeed, 

the evidence logs do not purport to prove any fact necessary to the 

conviction. Rather, the information was documented by the laboratory 

in an effort to catalog the evidence in a secure and reliable fashion. 

Powell’s first assignment of error is overruled. 

B. State’s References to M.S. 

In his second assignment of error, Powell argues his “rights to due 

process and a fundamentally fair trial were compromised by the jury’s improper 

exposure to evidence of a third victim who did not testify at trial.” Powell contends 

that the state’s use of evidence relating to M.S. amounted to prosecutorial 

misconduct that deprived him of his constitutional right to a fair trial. 

In this case, the record reflects that the state alluded to the allegations 

of rape and kidnapping committed against M.S. during voir dire, expressing to the 

jury that three rapes occurred in three different years. In addition, the prosecution 

described the factual circumstances supporting the charges relating to M.S. during 

its opening statements and indicated that the jury would be hearing from each of the 

three victims during the trial. Finally, the record reflects that the state elicited direct 
examination testimony from Tina Stewart regarding her involvement in M.S.’s case. 

However, before Stewart was permitted to testify about M.S.’s rape kit, which was 

submitted to the forensic laboratory on September 27, 1995, the trial court 

prevented further testimony regarding M.S. and her rape kit until “M.S. makes 

herself available.” 

On appeal, Powell argues the prosecution’s repeated references to 

M.S. amounted to prosecutorial misconduct, as the state had reason to believe that 

M.S. would not appear as a witness. According to Powell, “the information 

surrounding M.S. * * * unjustifiably bolstered the evidence supporting the other 

rape allegations,” and “allowed the state to establish a pattern where they otherwise 

could not have done so.” 

“The test for prosecutorial misconduct is whether the prosecutor’s 

remarks were improper and, if so, whether they prejudicially affected the substantial 

rights of the accused. The touchstone of analysis is the fairness of the trial, not the 

culpability of the prosecutor.” State v. Eisermann, 8th Dist. Cuyahoga No. 100967, 

2015-Ohio-591, ¶ 43. Prosecutorial misconduct constitutes reversible error only in 

rare cases. State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993). 

Under the circumstances presented in this case, we find the state’s 

references to M.S. during trial did not amount to prosecutorial misconduct that 

deprived Powell of his constitutional rights to due process and a fair trial. Following 

the state’s attempt to question Stewart about her involvement in M.S.’s case, an 

extensive conversation was held outside the presence of the jury. At that time, the 
state admitted that M.S. had missed her scheduled flight and was not in Cuyahoga 

County. However, the prosecutor indicated that the state intended to work with 

M.S. to reschedule her flight before the trial concluded. Thus, at the time the vague 

references to M.S. were made, the prosecutor had a good-faith basis to expect M.S. 

would appear and testify at trial. Once it became apparent that the victim would not 

appear for trial, the state properly dismissed the counts related to M.S. Moreover, 

the record reflects that the trial court sufficiently protected Powell’s constitutional 

rights and presumption of innocence by preventing the state from developing 

specific testimony regarding the allegations of sexual assault committed against 

M.S. until she appeared for trial. 

Powell’s second assignment of error is overruled. 

C. Ineffective Assistance of Counsel 

In his third assignment of error, Powell argues defense counsel 

rendered ineffective assistance of counsel by (1) failing to seek severance of the three 

separate sexual misconduct incidents, and (2) failing to renew or file a motion to 

dismiss this prosecution for preindictment delay that more specifically alleges the 

evidence lost as a result of the delay. 

To establish a claim for ineffective assistance of counsel, Powell must 

show that his trial counsel’s performance was deficient and that the deficient 

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 

N.E.2d 373 (1989). To establish prejudice, the defendant must demonstrate there 
is a “reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Strickland at 694. 

In evaluating a claim of ineffective assistance of counsel, a court must 

give great deference to counsel’s performance. Id. at 689. “A reviewing court will 

strongly presume that counsel rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment.” State v. 

Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69. Thus, “[t]rial strategy 

or tactical decisions cannot form the basis for a claim of ineffective counsel.” State 

v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v. 

Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980). Additionally, the failure to do 

a futile act cannot be the basis for claims of ineffective assistance of counsel, nor 

could such a failure be prejudicial. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-

Ohio-1228, at ¶ 37. We separately address each allegation of ineffective assistance 

of counsel. 

1. Severance 

Initially, Powell argues defense counsel rendered ineffective 

assistance of counsel by failing to file a motion to sever the charges involving each 

victim so that there would be separate trials. Powell contends that “if counsel had 

moved to sever the offenses, the motion would have been granted because he was 

prejudiced by the joinder.” He further asserts that “there was a reasonable 

probability that the verdict would have been different had a motion to sever been 

made.” 
To determine whether defense counsel was ineffective for failing to 

request severance, we consider whether the failure to file a motion to 

sever was deficient and, if so, whether Powell was prejudiced by this 

failure. This analysis, in turn, is based on whether joinder was 

appropriate in the first place. 

State v. Ford, 8th Dist. Cuyahoga No. 106394, 2018-Ohio-5169, ¶ 29. 

Crim.R. 8(A) governs the joinder of offenses in a single indictment. 

Under Crim.R. 8(A), two or more offenses may be charged together if the offenses 

“are of the same or similar character, or are based on the same act or transaction, or 

are based on two or more acts or transactions connected together or constituting 

parts of a common scheme or plan, or are part of a course of criminal conduct.” 

The law favors joining multiple offenses in a single trial if the 

requirements of Crim.R. 8(A) are satisfied. State v. Diar, 120 Ohio St.3d 460, 2008-

Ohio-6266, 900 N.E.2d 565. “[J]oinder and the avoidance of multiple trials [are] 

favored for many reasons, among which are conserving time and expense, 

diminishing the inconvenience to witnesses and minimizing the possibility of 

incongruous results in successive trials before different juries.” State v. Torres, 66 

Ohio St.2d 340, 421 N.E.2d 1288 (1981). See also State v. Schiebel, 55 Ohio St.3d 

71, 86-87, 564 N.E.2d 54 (1990); State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 

661 (1992). 

Under Crim.R. 14, however, the trial court may grant a severance, if it 

appears that the defendant would be prejudiced by the joinder. The defendant bears 

the burden of proving prejudice. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio1507, 824 N.E.2d 959, ¶ 29. 
The state can refute a defendant’s claim of prejudice by joinder of 

multiple offenses in two ways (1) a showing that the evidence of each crime is simple 

and direct (the “joinder test”) or (2) evidence of the other crimes would be 

admissible even if the counts were severed (the “other acts” test). State v. Lott, 51 

Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). When the evidence is “simple and 

direct,” an accused is not prejudiced by joinder regardless of the nonadmissibility of 

evidence of the crimes as other acts under Evid.R. 404(B). Id. Thus, if the state can 

meet the requirements of the “joinder test,” it need not meet the requirements of the 

stricter “other acts test.” State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 

100899, 2015-Ohio-1013, ¶ 66, citing State v. Franklin, 62 Ohio St.3d 118, 122, 580 

N.E.2d 1 (1991). 

“Simple and direct” evidence means the evidence of each crime is “so 

clearly separate and distinct as to prevent the jury from considering evidence of [one 

crime] as corroborative as the other.” State v. Belle, 8th Dist. Cuyahoga Nos. 107046 

and 107300, 2019-Ohio-787, ¶ 25, citing State v. Quinones, 11th Dist. Lake No. 

2003-L-015, 2005-Ohio-6576, ¶ 48. Evidence is “simple and direct” if the trier of 

fact is capable of segregating the proof required for each offense. Belle at id., citing 

State v. Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, 937 N.E.2d 136, ¶ 39 (10th 

Dist.). 

The object of the “simple and direct” test is to prevent the jury from 

improperly considering evidence of various crimes as corroborative of each other. 

State v. Echols, 128 Ohio App.3d 677, 694, 716 N.E.2d 728 (1st Dist.1998). However, 
“[a] trier of fact is believed capable of segregating the proof on multiple charges 

when the evidence as to each of the charges is uncomplicated.” State v. Lunder, 8th 

Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33. Thus, “Ohio appellate courts 

routinely find no prejudicial joinder where the evidence is presented in an orderly 

fashion as to the separate offenses or victims without significant overlap or 

conflation of proof.” State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio5138, ¶ 16, citing State v. Lewis, 6th Dist. Lucas Nos. L-09-1224 and L-09-1225, 

2010-Ohio-4202, ¶ 33. 

After careful consideration, we are unable to conclude that defense 

counsel rendered ineffective assistance of counsel by failing to file a motion to sever. 

Here, the allegations of sexual assault in each case relied on testimony and DNA 

evidence that was simple and direct. See Echols, 8th Dist. Cuyahoga No. 102504, 

2015-Ohio-5138, at ¶ 19 (“[DNA] evidence, although scientific in nature and 

presented through expert testimony, is simple in its application.”). While the 

prosecution introduced extensive testimony regarding the investigation and 

forensic analysis performed in each case, the record reflects that the state’s witnesses 

discussed the evidence relating to each victim separately, succinctly, and without 

significant overlap or conflation of proof. 

Viewed collectively, there was little danger that the jury would 

confuse the evidence or improperly consider the evidence of each victim’s 

accusations as corroborative of the others. Indeed, although Powell was found guilty 

for the rape and kidnapping of D.E., the jury found him not guilty of the rape and 
kidnapping charges associated with A.W. This reflects the jury’s ability to segregate 

the proof required in each case. See State v. Lee, 8th Dist. Cuyahoga No. 104682, 

2017-Ohio-1449, ¶ 19 (the evidence was “simple and direct” as reflected by the jury 

acquitting the defendant of offenses relating to one of the several shootings); State 

v. Bonneau, 8th Dist. Cuyahoga No. 97565, 2012-Ohio-3258, ¶ 22 (the jury’s not 

guilty verdict as to the counts relating to one victim and its guilty verdicts as to the 

counts relating to another demonstrated that the jury was able to separate the 

evidence and considered each victim separately); State v. Nitsche, 2016-Ohio-3170, 

66 N.E.3d 135, ¶ 95 (8th Dist.) (defendant could not show prejudice from joinder as 

he was acquitted of one charge); and State v. Shivers, 8th Dist. Cuyahoga No. 

106601, 2018-Ohio-5174. 

Because we find that joinder was appropriate in this case, we reject 

Powell’s argument that he was prejudiced by his counsel’s failure to request a 

severance. 

2. Preindictment Delay 

Powell further contends that defense counsel rendered ineffective 

assistance of counsel by failing to renew Powell’s motion to dismiss based on 

preindictment delay. 

Here, Powell must demonstrate that his trial counsel performed 

deficiently by failing to raise the issue of preindictment delay, and that there was a 

reasonable probability of success had his counsel timely presented that issue to the 
trial court. State v. Mack, 101 Ohio St.3d 397, 2004-Ohio-1526, 805 N.E.2d 1108, ¶ 

31. 

Preindictment delay violates due process only when it is unjustifiable 

and causes actual prejudice. State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 

N.E.3d 688, ¶ 12. The Ohio Supreme Court has established a burden-shifting 

framework for analyzing preindictment delay due process claims. State v. Whiting, 

84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). Under this framework, a defendant 

is first required to present evidence of actual prejudice; if actual prejudice is 

established, the burden shifts to the state to produce evidence of a justifiable reason 

for the delay. Id. 

The mere “possibility that memories will fade, witnesses will become 

inaccessible, or evidence will be lost is not sufficient to establish actual prejudice,” 

because those are manifestations of the prejudice inherent in any delay. State v. 

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 105, citing United 

States v. Marion, 404 U.S. 307, 326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, 

the Supreme Court of Ohio has rejected the argument that “any claim of actual 

prejudice based on the death of a potential witness is too speculative to succeed 

unless the defendant can establish precisely what that witness would testify to and 

that the testimony would be directly exculpatory.” State v. Jones, 148 Ohio St.3d 

167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 27. Instead, courts are to undertake a caseby-case consideration of the relevance of the lost evidence and its purported effect 
on the defense. Id., citing State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 

N.E.2d 829, ¶ 52. 

“Actual prejudice exists when missing evidence or unavailable 

testimony, identified by the defendant and relevant to the defense, would minimize 

or eliminate the impact of the state’s evidence and bolster the defense.” Jones at 

¶ 28, citing State v. Luck, 15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984). The 

Luck court found that the grounds set forth by the defense in that case — deaths of 

witnesses, the fading of memories, and the loss of evidence — “when balanced 

against the other admissible evidence” established that the defendant suffered 

actual prejudice. Luck at 157-158. 

On appeal, Powell asserts that defense counsel’s motion to dismiss for 

preindictment delay was “simply too general” and was premised on a deficient 

investigation into “who was present before, during and after the respective incidents 

and whether they would be available for trial.” Powell suggests that “had counsel 

done even a modicum of leg work in advance,” counsel would have established 

actual prejudice and had “a colorable motion to dismiss for preindictment delay.” 

After careful consideration of the record and the arguments originally 

set forth in counsel’s motion to dismiss for preindictment delay, we find nothing in 

this record to support Powell’s position that he was prejudiced by unavailable 

testimony. Without identifying specific individuals or the potential nature of their 

lost testimony, Powell broadly asks this court to “infer” that there are potentially 

exculpatory witnesses who are no longer available due to the delayed indictment. 
However, the record is silent on this issue. Thus, this court has no information to 

support Powell’s inference that potential defense witnesses have been lost. 

Moreover, Powell’s argument concerning the adequacy of counsel’s investigation is 

equally speculative. Presuming defense counsel exercised reasonable professional 

judgment, we find nothing in this record to suggest defense counsel did not 

investigate the availability of all witnesses who might have bolstered Powell’s 

defense or minimized the impact of the state’s evidence. 

Under the totality of the circumstances presented in this case, we are 

unable to conclude that counsel rendered ineffective assistance of counsel by failing 

to renew or supplement the motion to dismiss for preindictment delay. 

Powell’s third assignment of error is overruled. 

Judgment affirmed. 

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

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending is terminated. Case remanded to 

the trial court for execution of sentence. 

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

of the Rules of Appellate Procedure. 

 

EILEEN T. GALLAGHER, PRESIDING JUDGE 
MICHELLE J. SHEEHAN, J., and 

RAYMOND C. HEADEN, J., CONCUR