[Cite as State v. Stacey, 2009-Ohio-3816.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-08-44 

 v. 

PAUL N. STACEY, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 07-CR-0207 

Judgment Affirmed 

Date of Decision: August 3, 2009 

 

APPEARANCES: 

Allison M. Lawrence for Appellant 

Rhonda L. Best for Appellee 
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WILLAMOWSKI, J. 

{¶1} The defendant-appellant, Paul N. Stacey, appeals the judgment of 

the Seneca County Common Pleas Court convicting him of rape and ordering him 

to serve a mandatory life sentence. On appeal, Stacey contends that Senate Bill 10 

violates the ex post facto clause of the United States Constitution and the 

retroactivity clause of the Ohio Constitution; that the trial court erred by not 

instructing the jury on the lesser-included-offense of gross sexual imposition; that 

the trial court erred by allowing the state to amend the indictment; and that he had 

the ineffective assistance of trial counsel. For the reasons stated herein, the 

judgment of the trial court is affirmed. 

{¶2} On September 22, 2006, at approximately 5:30 or 5:45 a.m., Joleen 

L. took her five-year old daughter, T.L., to the home shared by Stacey and his 

wife, Kim, who babysat T.L. until she left for school. When T.L. arrived at 

Stacey’s home, he got out of bed to watch her so Kim could continue to sleep. On 

the couch in the living room, Stacey inserted his penis into her vagina and 

ejaculated. T.L. went to school that day, and when she came home, she disclosed 

the rape to her mother’s live-in boyfriend. Late that night, T.L. was taken to a 

hospital in Toledo, Ohio, where a sexual assault nurse examiner completed an 

examination. Forensic testing indicated the presence of Stacey’s DNA in T.L.’s 

underwear and in her vaginal opening. 
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{¶3} On July 31, 2007, a complaint was filed against Stacey alleging a 

violation of R.C. 2907.02(A)(1), (B), rape. Stacey waived a preliminary hearing, 

and on November 15, 2007, the Seneca County Grand Jury indicted him on one 

count of rape, a violation of R.C. 2907.02(A)(1)(b), (B). Also on November 15, 

2007, the court granted the state’s motion to amend the indictment to indicate that 

the offense was a first-degree felony. On November 27, 2007, Stacey entered a 

plea of not guilty at arraignment. During arraignment, the state made an oral 

motion to amend the indictment, which had formerly indicated that the victim was 

the spouse of the offender, to charge that the victim was not the spouse of the 

offender. Defense counsel did not oppose the motion, and the court allowed the 

amendment. A written motion was filed by the state on November 28, 2007, 

which the court granted on November 29, 2007. 

{¶4} The case culminated in a four-day jury trial. On November 20, 

2008, the jury found Stacey guilty and found that the victim had been under the 

age of 10 at the time of the offense. Immediately following the verdict, the court 

held a joint sexual offender classification hearing and sentencing hearing. The 

court classified Stacey as a Tier III sex offender and ordered him to serve a 

mandatory term of life imprisonment. Stacey appeals the judgment of the trial 

court, raising seven assignments of error. 
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First Assignment of Error 

The trial court’s retroactive application of Senate Bill 10 in 

classifying Appellant as a Tier III offender violates the ex post 

facto clause of the United States Constitution and the 

retroactivity clause of Section 28, Article II of the Ohio 

Constitution. 

Second Assignment of Error 

The trial court committed plain error by failing to instruct the 

jury on the lesser-included offense of gross sexual imposition. 

Third Assignment of Error 

Insofar as the second assignment of error may have been waived 

by trial counsel’s failure to request an instruction on the lesserincluded offense of gross sexual imposition, Appellant was 

denied his constitutional right to effective assistance of counsel. 

Fourth Assignment of Error 

The trial court committed plain error when it allowed 

amendment of the indictment to charge an offense. 

Fifth Assignment of Error 

Insofar as the fourth assignment of error may have been waived 

by trial counsel’s failure to object in the trial court to the fact 

that the grand jury never charged Appellant with a crime, 

Appellant was denied his constitutional right to effective 

assistance of counsel. 

Sixth Assignment of Error 

Trial counsel’s failure to object to repeated instances of 

inadmissible hearsay denied Appellant his constitutional right to 

effective assistance of counsel. 
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Seventh Assignment of Error 

Insofar as the court may deem the above errors non-prejudicial 

when taken alone, the cumulative effect of the errors at trial 

deprived Appellant of his constitutional right to a fair trial. 

{¶5} For ease of analysis, we elect to consider the assignments of error 

out of order. In the fourth assignment of error, Stacey contends he was prejudiced 

by the state’s amendment of the indictment, which effectively converted a nonoffense to the offense of rape. Stacey argues that such amendment violates R.C. 

2901.03(A), which states that conduct does not constitute a criminal offense unless 

it is defined as an offense by the General Assembly, and Crim.R. 7(D) because the 

amendment effectively changed the name or identity of the crime charged. 

Essentially, Stacey argues that the prosecutor usurped the power of the grand jury 

in amending the indictment to charge him with a criminal offense. In response, 

the state contends that the error in the original indictment was a clerical error, and 

its correction thereof did not change the name or identity of the offense charged. 

{¶6} The original indictment stated as follows: 

On or about the 22nd day of September 2006, in Seneca County, 

Ohio, PAUL N. STACEY did engage in sexual conduct with 

another, namely Jane Doe, who is his spouse, when the said Jane 

Doe was less than thirteen (13) years of age, namely five (5) years 

of age, whether or not the said Paul N. Stacey knew the age of 

the said Jane Doe. 

SPECIFICATION: The Grand Jury do further find and specify 

that the victim, Jane Doe, under division (A)(1)(b) of this section 

was less than ten (10) years of age at the time of the commission 

of the offense, namely five (5) years of age. 
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This being in violation of Section 2907.02(A)(1)(b), (B) of the 

Ohio Revised Code and against the peace and dignity of the 

State of Ohio. 

PENALTY: The penalty for this offense is a sentence of life 

imprisonment with parole eligibility as stated in R.C. Section 

2967.13(A)(5) and/or a fine of up to $20,000.00. 

(Emphasis added). Indictment, Nov. 15, 2007. The indictment was amended on 

November 15, 2007 to identify the offense as a first-degree felony. At Stacey’s 

arraignment on November 27, 2007, the court indicated that “there was an oral 

motion to amend the indictment.” Hearing Tr., Mar. 5, 2009, at 4:14-15. Defense 

counsel stated that there was no objection to the amendment, and the court granted 

the motion. Id. at 4:16-18. The state filed a written motion to amend the 

indictment on November 28, 2007, and in its journal entry of November 29, 2007, 

the court amended the language of the indictment from “who is his spouse” to “not 

his spouse.” 

{¶7} Since an objection was not raised in the trial court, and since any 

alleged error in this case did not “result in multiple errors that [were] inextricably 

linked to the flawed indictment[,]” we must use the plain-error standard. State v. 

Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, at ¶ 7, citing State 

v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, at ¶ 23. Plain 

error will be recognized “‘with the utmost caution, under exceptional 

circumstances and only to prevent a manifest miscarriage of justice.’” State v. 

Landrum (1990), 53 Ohio St.3d 107, 110, 559 N.E.2d 710, quoting State v. Long

(1978), 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus. 
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Plain error will exist if the trial court deviated from a legal rule, the error 

constituted an obvious defect in the proceedings, and the error affected a 

substantial right of the accused. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio68, 759 N.E.2d 1240 (internal citations omitted). 

{¶8} Crim.R. 7(D) allows a trial court to amend an indictment “at any 

time” so long as “no change is made in the name or identity of the crime charged.” 

See also R.C. 2941.30. “An amendment to the indictment that changes the name 

or identity of the crime is unlawful whether or not the defendant was granted a 

continuance to prepare for trial; further, a defendant need not demonstrate that he 

suffered any prejudice as a result of the forbidden amendment.” State v. 

Fairbanks, 172 Ohio App.3d 766, 2007-Ohio-4117, 876 N.E.2d 1293, at ¶ 21, 

citing Middletown v. Blevins (1987), 35 Ohio App.3d 65, 67, 519 N.E.2d 846. “A 

trial court commits reversible error when it permits an amendment that changes 

the name or identity of the crime charged.” Fairbanks, at ¶ 21, citing State v. 

Kittle, 4th Dist. No. 04CA41, 2005-Ohio-3198, at ¶ 12; State v. Headley (1983), 6 

Ohio St.3d 475, 478-479, 453 N.E.2d 716. 

{¶9} “Where the ‘name’ of the crime remains the same, even after 

amendment, there is no violation of Crim.R. 7(D) regarding that prohibition.” 

State v. Craft, 181 Ohio App.3d 150, 2009-Ohio-675, 908 N.E.2d 476, at ¶ 23, 

citing State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, at ¶ 

5; State v. Corrill (1999), 133 Ohio App.3d 550, 552, 729 N.E.2d 403; State v. 

Dukes, 3d Dist. Nos. 1-02-64, 1-02-92, and 1-02-93, 2003-Ohio-2386, at ¶ 10. To 
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determine if the “identity” of a crime has changed, the court must examine 

whether the “penalty or degree” changed. Id. at ¶ 24, citing Davis, at syllabus. 

{¶10} The language of the original and the amended indictments is set 

forth above, with the original indictment asserting that the five-year-old victim 

was Stacey’s spouse at the time of the offense. The error in the original 

indictment was clearly clerical, and the amendment did not change the name or 

identity of the crime charged for it was factually and legally impossible for T.L. to 

be Stacey’s spouse. Stacey was already married at the time of the offense, so to 

have been married to T.L. would have resulted in other criminal activity, namely 

bigamy. R.C. 2919.01(A). Furthermore, a minor must obtain consent to marry, 

and there was no evidence that such consent had been sought or obtained. R.C. 

3101.01(A). Based on the factual and legal impossibility of T.L. being Stacey’s 

spouse, we cannot find plain error because the clerical error in the original 

indictment did not change the name or identity of the offense charged. See State 

v. Sloane, 7th Dist. No. 06 MA 144, 2009-Ohio-1175, at ¶ 47-49 (trial court did not 

err by allowing the state to file a superseding indictment, which added the 

essential element that the victims were not the spouses of the defendant.). The 

fourth assignment of error is overruled. 

{¶11} In the second assignment of error, Stacey contends that the trial 

court erred by not instructing the jury on the lesser-included offense of gross 

sexual imposition. Stacey argues that the testimony of the nurse who administered 

the rape kit essentially established reasonable doubt as to the element of 
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penetration, and therefore he was entitled to the instruction on gross sexual 

imposition, which requires sexual contact rather than sexual conduct. 

{¶12} Stacey’s defense was that he had not committed any sexual act with 

T.L. Trial Tr., Mar. 5, 2009, at 951; 971; 991. Stacey testified that he had not 

raped or had sexual contact with T.L. and during closing argument, counsel’s main 

contention was that Stacey had been set up; essentially a complete defense of 

denial. Id. at 951; 971; 991; 1037. In his brief, Stacey focuses on the crossexamination of Jane Sayers, the nurse who had performed the rape kit on T.L. 

Stacey elicited testimony that T.L.’s hymen was intact, thus challenging the 

element of penetration. On cross-examination, Sayers testified as follows: 

Q: So there was [sic] no tears on the hymen? 

A: That’s correct. And as I previously said, it would be 

uncommon to find injury at that area. The hymen in – in that 

area is very elast – elasticized. It stretches a lot. 

Q: In – in regard to a five year old? 

A: Absolutely. Absolutely. It’s very – we rarely see injuries. 

Q: Okay. Well, on the reverse side, if, uhm, if no penis had 

been in there with regard to any kind of sexual assault as 

described by, uhm – as you were investigating, the hymen would 

also be intact, would it not? 

A: That’s correct. 

Q: So the fact that no tears were noted to the hymen would 

indicate that, uhm, that no penis had been in there, wouldn’t 

that also be the case? 

A: Well, I can’t say. I can only go by the history that was 

given to me and the findings that were found. And my his – the 

history that was given to me was consistent with the findings 

that were found. 

Q: Well, what would tears in the hymen – what would tears 

in the hymen indicate with you? 

* * * 
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A: I’ve seen tears in the hymen, uhm, from straddle injuries, 

uhm, any kind of injuries, the child falling off something onto it. 

I’ve seen tears from a sexual assault, uhm... 

Q: Wouldn’t tears in the hymen deduce, as you just said, a 

sexual assault with a penis? 

A: It could be. Yes, it could very well. 

Q: But also no tears in the hymen would mean that there was 

no sexual assault? 

A: I can’t say that for sure because of the history that was 

given to me. 

Q: I didn’t – I didn’t ask you for sure. I said it could mean 

there was no tears in the hymen, correct? 

* * * 

A: That’s correct. 

Q: Which could mean that there was no sexual assault, which 

could mean – 

A: Yes. Yes, it could mean. Yes. 

Trial Tr., at 384-386. Sayer’s testimony that an intact hymen could lead to the 

conclusion that no penetration had occurred is the foundation of Stacey’s 

argument that he was entitled to a jury instruction on the lesser-included offense of 

gross sexual imposition. 

{¶13} Gross sexual imposition is a lesser-included offense of rape. State v. 

Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, at ¶ 83, citing State 

v. Johnson (1988), 36 Ohio St.3d 224, 522 N.E.2d 1082, at paragraph one of the 

syllabus. However, “when a defendant presents a complete defense to the 

substantive elements of the crime, such as an alibi, an instruction on a lesser 

included offense is improper.” State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio4853, 854 N.E.2d 150, at ¶ 137, citing State v. Strodes (1976), 48 Ohio St.2d 113, 

117, 357 N.E.2d 375. 
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{¶14} However, a defendant is entitled to an instruction on the lesserincluded-offense “‘only if, based on the evidence adduced by the state, the trier of 

fact can find for the defendant * * * on some element of the greater offense which 

is not required to prove the commission of the lesser offense and for the state on 

the elements required to prove the commission of the lesser offense.’” Bethel, at ¶ 

138, quoting State v. Solomon (1981), 66 Ohio St.2d 214, 421 N.E.2d 139, at 

paragraph two of the syllabus. “‘[I]f due to some ambiguity in the state’s version 

of the events involved in a case the jury could have a reasonable doubt regarding 

the presence of an element required to prove the greater but not the lesser offense, 

an instruction on the lesser included offense is ordinarily warranted.’” Id., quoting 

Solomon, at 221. 

“‘While a trial court does have a duty to include instructions on 

lesser included offenses, a defendant still retains the right, 

through counsel, to waive such instructions. State v. Clayton

(1980), 62 Ohio St.2d 45, 47, at fn. 2, 402 N.E.2d 1189. Given 

this right to waive jury instructions on lesser-included offenses, 

plain error does not lie where trial counsel failed to request jury 

instructions on lesser included offenses as a matter of trial 

strategy. Id. at 47, 402 N.E.2d 1189.’ State v. Davis, 9th Dist. No. 

21794, 2004-Ohio-3246, at ¶ 18.” 

State v. Pigg, 9th Dist. No. 24360, 2009-Ohio-2107, at ¶ 5. In this case, defense 

counsel told the court he would not request an instruction for any lesser-included 

offense. Trial Tr., at 999. Following Clayton, we find no plain error on this 

record. 

{¶15} Even if we were to consider the testimony presented at trial to 

determine if an instruction on gross sexual imposition was warranted, there was no 
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evidence that would have permitted the jury to find Stacey not guilty of rape but 

guilty of gross sexual imposition. Sayers testified that during the examination, she 

first uses her fingers to separate the victim’s labia majora, “which [are] the folds 

that cover the opening, cover the inside of the, uhm, genitalia. And also there is 

called the labia minora, which are the inner lips there. Uhm, we separate those a 

little bit and look.” Id. at 351-352. She then “also use[s] something called labial 

traction where we actually take our fingers and we pull the inner labia, outer labia, 

away from the vaginal opening so that we’re able to see that opening and the 

hymen area.” Id. at 352. 

{¶16} Stacey’s argument is based on speculative testimony about the 

condition of T.L.’s hymen. Even if we accept Sayer’s testimony elicited on crossexamination, other than his denial of committing the offense, Stacey did not rebut 

or challenge the evidence that his penis penetrated T.L.’s labia majora. Based on 

Sayer’s testimony, it is clear that the labia majora are more external in the female 

genitalia than the hymen, thus requiring an object, such as a penis, to pass the labia 

majora before reaching the hymen. “This Court has previously held that vaginal 

penetration is proved when any object is applied with sufficient force to cause the 

labia majora to spread.” State v. Lindsey, 3d Dist. No. 8-06-24, 2007-Ohio-4490, 

citing State v. Farr, 3d Dist. No. 13-06-16, 2007-Ohio-3136, at ¶ 17, citing State v. 

Roberts, 10th Dist. No. C-040547, 2005-Ohio-6391, at ¶ 62, fn. 11; State v. 

Brewer, 2d Dist. No. 03CA0074, 2004-Ohio-3572, at ¶ 31-32; State v. 

Falkenstein, 8th Dist. No. 83316, 2004-Ohio-2561; State v. Grant, 2d Dist. No. 
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19824, 2003-Ohio-7240; State v. Blankenship (Dec. 13, 2001), 8th Dist. No. 

77900; State v. Childers (Dec. 19, 1996), 10th Dist. No. 96APA05-640-640; State 

v. Nivens (May 28, 1996), 10th Dist. No. 95 APA09-1236; State v. Ulis (July 22, 

1994), 6th Dist. No. L-93-247; State v. Carpenter (1989), 60 Ohio App.3d 104, 

573 N.E.2d 1206. As such, we cannot find plain error in the trial court’s decision 

not to instruct the jury on the lesser-included offense of gross sexual imposition. 

The second assignment of error is overruled. 

{¶17} In the third, fifth, and sixth assignments of error, Stacey contends his 

trial counsel was ineffective. In the third assignment of error, Stacey contends that 

counsel was ineffective for failing to request a jury instruction on gross sexual 

imposition, and that “any competent counsel would have sought to mitigate the 

damage by offering the jury the opportunity to find his client guilty of a lesserincluded offense.” In the fifth assignment of error, Stacey argues that trial counsel 

was ineffective for failing to object to the state’s motion to amend the indictment 

to include the words “not the spouse” of the offender. In the sixth assignment of 

error, Stacey challenges several alleged instances of inadmissible hearsay to which 

trial counsel did not object. Stacey argues that counsel’s failure to object deprived 

the trial court of the opportunity to exclude the hearsay evidence. 

{¶18} In response to the third assignment of error, the state notes Stacey’s 

refusal “to acknowledge any reason why his DNA would be on the crotch of 

[T.L.’s] underwear, so, logically, trial counsel’s strategy of obtaining an acquittal 

was in line with Appellant’s position that nothing at all of a sexual nature 
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happened between Appellant and [T.L.].” The state claimed that the jury was able 

to determine whether penetration occurred based on counsel’s attempts to disprove 

penetration, his attempts to discredit the victim, and his attempts to create 

reasonable doubt concerning medical and scientific evidence. In regard to the fifth 

assignment of error, the state claims trial counsel knew Crim.R. 7(D) permitted 

amendment of the indictment based on a clerical error. To rebut the sixth 

assignment of error, the state contends that each example of alleged hearsay 

mentioned by the defense on appeal fell within a hearsay exception. Specifically, 

the state cites Evid.R. 803(2) to explain statements T.L. made to Joleen’s 

boyfriend and statements T.L. made to Joleen. As to the statements T.L. made to 

Kristine Konley, a nurse who examined T.L. at the Fostoria hospital, and 

statements made to Sayers, the state contends that those statements were made for 

medical diagnoses and are exceptions to hearsay under Evid.R. 803(4). The state 

contends that trial counsel’s failures to object demonstrated his knowledge of the 

Rules of Evidence and were not deficiencies. 

{¶19} The Supreme Court of Ohio has established a two-part test to 

determine if trial counsel was ineffective. First, the defendant must show that 

counsel’s performance fell below objective standards of reasonable representation, 

and second, the defendant must show resulting prejudice. State v. Dickinson, 3d 

Dist. No. 11-08-08, 2009-Ohio-2099, at ¶ 20, citing State v. Bradley (1989), 42 

Ohio St.3d 136, 538 N.E.2d 373, at paragraph two of the syllabus. To show 

prejudice, the defendant “must prove that there exists a reasonable probability that, 
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but for counsel’s errors, the outcome at trial would have been different. Id., citing 

Bradley, at paragraph three of the syllabus. “‘Reasonable probability’ is a 

probability sufficient to undermine confidence in the outcome of the trial.’” Id., 

quoting State v. Waddy (1992), 63 Ohio St.3d 424, 433, 588 N.E.2d 819, 

superseded by constitutional amendment on other grounds as recognized by State 

v. Smith (1997), 80 Ohio St.3d 89, 103, 684 N.E.2d 668. 

{¶20} A defendant must also overcome the presumption that counsel is 

competent and must show that counsel’s decisions were “not trial strategies 

prompted by reasonable professional judgment.” Id. at ¶ 21, citing Strickland v. 

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. 

Richardson, 3d Dist. No. 13-06-21, 2007-Ohio-115, citing State v. Hoffman

(1998), 129 Ohio App.3d 403, 407, 717 N.E.2d 1149. Even unsuccessful tactical 

or strategic decisions will not constitute ineffective assistance of counsel. Id., 

citing State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965. An 

appellate court must review the totality of the circumstances and not isolated 

instances of an allegedly deficient performance. Id., citing State v. Fritz, 3d Dist. 

No. 13-06-39, 2007-Ohio-3138, at ¶ 35, citing State v. Malone (Dec. 13, 1989), 2d 

Dist. No. 10564. 

{¶21} This court has previously held that trial counsel’s failure to object 

does not establish ineffective assistance of counsel. State v. Turks, 3d Dist. No. 1-

08-44, 2009-Ohio-1837, at ¶ 43, citing State v. Conway (2006), 109 Ohio St.3d 

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103. “Furthermore, trial counsel’s 
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failure to object is generally viewed as trial strategy and does not establish 

ineffective assistance.” Id., citing State v. McKinney, 11th Dist. No.2007-T-0004, 

2008-Ohio-3256, at ¶ 191, citing State v. Hunt (1984), 20 Ohio App.3d 310, 311, 

486 N.E.2d 108; State v. Gumm (1995), 73 Ohio St.3d 413, 428, 653 N.E.2d 253. 

Based on this record, it appears that trial counsel’s strategy was to attain an 

acquittal for his client, without giving the jury the opportunity to consider a lesserincluded offense for a serious charge concerning a five-year old victim. Counsel 

attempted to discredit the victim, Joleen, Willie Jordan, and each nurse apparently 

in an attempt to raise reasonable doubt and obtain an acquittal for his client. The 

alleged hearsay statements were supported when the victim, T.L., testified and was 

subject to cross-examination. On this record, we cannot find that Stacey was 

prejudiced by the lack of objections to certain instances of alleged hearsay or by 

counsel’s professional decision to seek an acquittal on his client’s behalf. 

{¶22} As to the issue concerning the indictment, we presume that trial 

counsel was aware of the law, including Crim.R. 7(D), the age of the victim, 

which was established in the indictment, and the legal impossibility of the wording 

of the original indictment. Counsel apparently opted not to object to the 

amendment of the indictment and to otherwise fight the charge against his client. 

We have previously held that “‘[i]neffective assistance does not exist merely 

because counsel failed “to recognize the factual or legal basis for a claim, or failed 

to raise the claim despite recognizing it.”’” State v. Tosco, 3d Dist. No. 9-08-21, 

2009-Ohio-408, at ¶ 35, quoting State v. Malone (Dec. 13, 1989), 2d Dist. No. 
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10564, quoting Smith v. Murray (1986), 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 

434. Even if counsel had objected, the outcome of the case would not have been 

different considering the overwhelming evidence against Stacey. 

{¶23} In the first assignment of error, Stacey contends that his 

classification as a Tier III sex offender violates the ex post facto clause of the 

United States Constitution and the retroactivity clause of the Ohio Constitution 

because his offense was committed prior to the effective date of Senate Bill 10, 

also known as the Adam Walsh Act. This court has previously found both 

contentions to be misplaced based on State v. Cook (1998), 83 Ohio St.3d 404, 700 

N.E.2d 570, and State v. Williams (2000), 88 Ohio St.3d 513, 728 N.E.2d 342, and 

we are bound by the principle of stare decisis to our prior decisions. Holcomb v. 

State, 3d Dist. Nos. 8-08-23, 8-08-24, 8-08-25, 8-08-26, 2009-Ohio-782, at ¶ 9, 

citing In re Smith, 3d Dist. No. 1-07-58, 2008-Ohio-3234, at ¶ 26-35; 38; Downing 

v. State, 3d Dist. No. 8-08-29, 2009-Ohio-1834, at ¶ 15, citing In re Copeland, 3d 

Dist. No. 1-08-40, 2009-Ohio-190, at ¶ 11. The first assignment of error is 

overruled. 

{¶24} In the seventh assignment of error, Stacey argues that cumulative 

errors deprived him of a fair trial. Having reviewed the record, we conclude 

Stacey received a fair trial. See State v. Jones (2000), 90 Ohio St.3d 403, 422, 739 

N.E.2d 300, citing State v. Lott (1990), 51 Ohio St.3d 160, 166, 555 N.E.2d 293, 

quoting United States v. Hastings (1983), 461 U.S. 499, 508-509, 103 S.Ct. 1974, 

76 L.Ed.2d 96 (litigants are entitled to a fair trial, not a perfect trial.). We are also 
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mindful of the Supreme Court of Ohio’s holding that errors do not “‘become 

prejudicial by sheer weight of numbers.’” State v. Were, 118 Ohio St.3d 448, 

2008-Ohio-2762, 890 N.E.2d 263, at ¶ 261, quoting State v. Hill (1996), 75 Ohio 

St.3d 195, 212, 661 N.E.2d 1068. The seventh assignment of error is overruled. 

{¶25} The judgment of the Seneca County Common Pleas Court is 

affirmed. 

Judgment Affirmed

PRESTON, P.J., concurs. 

ROGERS, J., concurs in Judgment, 

concurs in Judgment Only on Assignment of Error No. 1. 

/jnc