CRIMINAL APPEAL FROM CLERMONT COUNT COURT OF COMMON PLEAS Case No. 2011CR00761
D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, for plaintiff-appellee
Paul Croushore, for defendant-appellant
(¶ 1} Defendant-appellant, James David Mathes, appeals a decision of the Clermont County Court of Common Pleas denying his petition for postconviction relief. For the reasons discussed below, we affirm the judgment of the trial court.
(¶ 2} In August 2011, appellant was indicted on charges of rape, unlawful restraint, kidnapping, and tampering with evidence. The charges arose out of allegations that on June 4, 2010, appellant pinned A.C., a 14-year-old neighbor girl, down on a couch in his home for three to five minutes, reached up her shorts, and digitally penetrated her vagina.
(¶ 3} A jury trial was held in February 2012. At trial, A.C. testified that on June 4, 2010, appellant grabbed her while she was in his home, pinned her down on the couch, reached up her shorts, and digitally penetrated her vagina. Emily Draper, a chemist with the Ohio Bureau of Criminal Investigation, testified she tested DNA samples taken from underneath appellant's fingernails and from his fingernail clippings. Draper explained that she found A.C.'s DNA on the samples, that the samples taken from appellant's fingernails produced more of A.C.'s DNA than appellant's own DNA, and that the amount of A.C.'s DNA found on the nail scrapings was consistent with digital penetration of the mouth, vagina, or anus.
(¶ 4} Appellant testified at trial on his own behalf, maintaining that he had no contact with A.C. Appellant suggested that A.C.'s DNA may have gotten on his fingernails when he handled some of the clothing A.C. had left at his house for his niece to borrow. The jury rejected appellant's version of events and found him guilty of rape, kidnapping, and unlawful restraint. Appellant filed a motion for new trial, which was denied by the trial court on March 2, 2012. After finding that rape, kidnapping, and unlawful restraint were allied offenses of similar import, the trial court sentenced appellant to five years in prison on the rape conviction. Appellant directly appealed his conviction in March 2012, and this court affirmed his conviction on April 29, 2013. State v. Mathes, 12th Dist. Clermont No. CA2012-03-028, 2013-Ohio-1732.
(¶ 5} On December 6, 2012, after the filing of his direct appeal, appellant filed a postconviction relief petition to vacate and set aside the judgment of conviction. Appellant simultaneously requested a hearing on his petition and the appointment of an expert to conduct DNA testing in accordance with R.C. 2953.71. Appellant's request for an expert and his petition for postconviction relief were denied by the trial court without a hearing on January 16, 2013. Appellant now appeals the denial of his postconviction relief petition, raising two assignments of error.
(¶ 6} Assignment of Error No. 1:
(¶ 7} THE TRIAL COURT ERRED IN DENYING THE [APPELLANT'S] POSTCONVICTION PETITION WITHOUT A HEARING WHERE HE PROVIDED EVIDENCE OF WHICH DEFENSE COUNSEL HAD NOT BEEN AWARE SHOWING THAT THE PURPORTED VICTIM HAD APPROACHED THE [APPELLANT] A WEEK AFTER THE SUPPOSED RAPE AND THAT AC. AND HER FATHER LIED ABOUT THE INCIDENT.
(¶ 8} In his first assignment of error, appellant argues the trial court erred in denying his petition for postconviction relief without holding a hearing as the evidence he submitted in support of his petition demonstrated that his trial counsel was unprepared to effectively cross-examine A.C. at trial. Specifically, appellant contends his trial counsel failed to adequately question and impeach A.C. on the issue of whether she voluntarily went to appellant's house on June 14, 2010, ten days after the incident allegedly occurred. Appellant contends that had his trial counsel been prepared to impeach and call into ...