State v. Bruce
| Docket Number | 14-22-11 |
| Decision Date | 18 September 2023 |
| Citation | 2023 Ohio 3298 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. TIMOTHY ALLEN BRUCE, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
Dennis W. McNamara for Appellant
Raymond Kelly Hamilton for Appellee
{¶1} Defendant-appellant Timothy A. Bruce ("Timothy") appeals the judgment of the Union County Court of Common Pleas, arguing that he was denied his right to the effective assistance of counsel. This appeal is not primarily about whether Timothy is guilty of the charges against him but is ultimately about whether Timothy received a fair trial on the charges against him. For the reasons set forth below, the judgment of the trial court is reversed.
{¶2} R. is the daughter of Randy. In 2016, Randy moved to Florida to seek treatment for his substance abuse issues. At that time, Randy's mother, Kimberly, received custody of R and became her primary caregiver. Kimberly has also functioned as the primary caregiver of her ex-husband, Timothy, since the time he had suffered a traumatic brain injury in a motor vehicle accident in 1999. This injury has affected Timothy's cognitive and physical abilities through the present day.
{¶3} While she had custody of R., Kimberly worked as a registered nurse. When Kimberly was at work, she would have Timothy supervise R. several days a week after school at his apartment. During this time, Kimberly's mother, Nancy, frequently visited with R. A family friend, Brandee, also lived with Kimberly and R. for roughly nine months in this general timeframe.
{¶4} In August of 2018, R. traveled to Florida to stay with Randy for roughly ten days. On August 7, 2018, R. had a conversation with her father in which she disclosed allegations of sexual misconduct that involved Timothy. At this time, R. was eight years old. Randy then proceeded to file a police report in Florida. As the misconduct was alleged to have occurred in Ohio, the police in Florida forwarded this report to the City of Marysville Division of Police in Ohio where Detective Dennis Flanagan ("Detective Flanagan") began an investigation into the allegations. A copy of this report was also forwarded to Molly Vance at Children's Services in Union County.
{¶5} After R. returned to Ohio, she was interviewed at the Center for Family Safety and Healing at Nationwide Children's Hospital ("Nationwide Hospital") on August 15, 2018. Nancy and Kimberly were present with R. during this process and discussed the allegations with the staff at Nationwide Hospital. After this interview, Detective Flanagan met with Kimberly, Nancy, and R. at Kimberly's house.
{¶6} On August 29, 2018, R.'s school received a report from a parent of a student that R. was watching pornography on her phone on the school bus. The school conducted an investigation into this matter but found no evidence on her phone that would corroborate the parent's report. On August 31, 2018, R. went to the office of the school nurse, Courtney Thompson, and then wrote down her allegations in a letter addressed to her teacher. This precipitated a conversation between R. and the school principal, Thomas Holdren.
{¶7} As part of his investigation, Detective Flanagan conducted interviews with Kimberly, Brandee, and Nancy. He also conducted a search of Timothy's apartment where he discovered pornographic DVDs and a laptop containing a number of pornographic materials. The police took these items into evidence as R. had alleged that Timothy had shown her pornographic videos on his television.
{¶8} On October 10, 2019, Timothy was indicted on one count of voyeurism in violation of R.C. 2907.08(C), a felony of the fifth degree; one count of disseminating matter harmful to juveniles in violation of R.C. 2907.31(A)(1), a felony of the fourth degree; one count of importuning in violation of R.C. 2907.07(A), a felony of the third degree; three counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree; and four counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree.
{¶9} A jury trial on these charges occurred between February 28, 2022 and March 2, 2022. By this time, R. was eleven years old. On the first day of trial, the State called Randy and two employees of the Center for Family Safety and Healing at Nationwide Children's Hospital. On the second day of trial, the State began by calling the forensic nurse, Gail Hornor ("Hornor"), who had conducted a physical examination of R., to testify. At trial, Hornor affirmed that the medical examination did not produce any physical evidence to corroborate her allegations. Hornor testified that R.'s "exam was normal" but that these results did not foreclose the possibility of the conduct alleged by R. (Mar. 1 Tr. 22-23). The State then had Thomas Holdren and Courtney Thompson testify before calling R. as a witness.
{¶10} On taking the stand, R. testified that, at various times beginning just after her seventh birthday, Timothy had shown her pornographic videos; watched her while she was showering; touched the insides of her privates with his fingers; put his tongue on her chest and genitals; and contacted parts of her body with his genitals, including her mouth. After this testimony, the State called Molly Vance and Detective Flanagan to testify.
{¶11} On the third day of trial, the Defense called Kimberly, Nancy, and Brandee to testify as witnesses. On March 3, 2022, the jury returned verdicts of guilty on all of the charges against Timothy. On March 24, 2022, the trial court sentenced Timothy and issued its judgment entry of sentencing. The trial court imposed multiple life sentences on Timothy without the possibility of parole.
{¶12} Timothy filed his notice of appeal on April 22, 2022. On appeal, he raises the following assignment of error:
Mr. Bruce was denied the effective assistance of counsel during his trial; Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution.
Timothy argues that his counsel was deficient for his failure to object to the introduction of inadmissible exhibits or testimony on roughly thirty occasions that are identified in his brief.
{¶13} "Under Ohio law, 'a properly licensed attorney is presumed to carry out his duties in a competent manner.'" State v. Harvey, 3d Dist. Marion No. 9-19-34, 2020-Ohio-329, ¶ 57, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993 WL 270995 (July 22, 1993). "For this reason, the appellant has the burden of proving that he or she was denied the right to the effective assistance of counsel." State v. Cartlidge, 3d Dist. Seneca No. 13-19-44, 2020-Ohio-3615 ¶ 39. "In order to prove an ineffective assistance of counsel claim, the appellant must carry the burden of establishing (1) that his or her counsel's performance was deficient and (2) that this deficient performance prejudiced the defendant." State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24, quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶14} In order to establish deficient performance, the appellant must demonstrate that trial "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." State v. Morrissey, 2022-Ohio-3519, 198 N.E.3d 554, ¶ 26 (3d Dist.), quoting Strickland at 687. "Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance." McWay at ¶ 24, quoting State v. Pellegrini, 3d Dist. Allen No. 1-12-30, 2013-Ohio-141, ¶ 40.
{¶15} "In order to establish prejudice, 'the defendant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.'" State v. Berry, 3d Dist. Union No. 14-20-05, 2021-Ohio-1132, ¶ 122, quoting State v. Bibbs, 2016-Ohio-8396, 78 N.E.3d 343, ¶ 13 (3d Dist.). If the appellant does not establish one of these two prongs, the appellate court does not need to consider the facts of the case under the other prong of the test. State v. Baker, 3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 19, citing State v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist).
{¶16} On appeal, Timothy argues that his defense counsel was deficient for failing to object on roughly thirty different occasions that he identifies in his brief. Timothy divides these instances of alleged deficient performance into four categories: impermissible other acts evidence, improper opinion testimony, inadmissible hearsay statements, and improper prosecutorial comments during closing arguments. In our analysis, we will divide these thirty alleged instances into the four categories used by Timothy and will then analyze whether each of these instances represents an error. After examining whether these identified instances constituted errors, we will turn to examining whether Timothy carried the burden of demonstrating prejudice.
To continue reading
Request your trial