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State v. Jordan

Court of Appeals of Ohio, Second District, Montgomery

August 25, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MCKENNA JORDAN Defendant-Appellant

         Trial Court Case No. 2012-CR-2285

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH Attorney for Plaintiff-Appellee

          LORIN J. ZANER, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} McKenna Jordan appeals from the trial court's denial, without a hearing, of his petition for post-conviction relief. For the reasons set forth below, we affirm.

         I. Facts and Procedural History

         {¶ 2} This case arises from the rape and sexual battery of a minor by Jordan. Jordan was was indicted on five counts of sexual battery and one count of rape. He was subsequently convicted of rape and three of the five counts of sexual battery.

         {¶ 3} The following facts are gleaned from our opinion in State v. Jordan, 2d Dist. Montgomery No. 26163, 2016-Ohio-603, wherein we denied Jordan's direct appeal:[1]

Alice grew up believing that Jordan was her father. She was only three years old when Jordan began dating her mother, and she could not remember a time when he was not a part of her life. Alice testified that in December 2011, shortly after she turned 13 years old, Jordan began sexually abusing her on a regular basis. Usually, Alice would be in her bed at night and Jordan would come into her room, lay down next to her, and begin kissing her neck. He would kiss down her body, from her neck, to her chest, and then to her vagina. Jordan would remove his own clothes and insert his penis into her vagina. When he was done, Jordan would leave without saying anything.
Alice testified that one day she was in her mother's bedroom sitting on the bed watching television when Jordan came into the room and sat beside her. Jordan soon began fondling her. He then tied Alice's hands to the bed using some straps. He pulled down his and Alice's pants and put his penis into her vagina. At some point, Ian, her younger brother, walked into the room. He testified that he saw that Jordan had "his private parts out" and that Alice was laying down with her hands tied to the bed. (Trial Tr. 895). Ian said that Jordan "told him to get out because he didn't want to go to jail." (Id. at 897). Ian said that he left because he "was afraid he [Jordan] was going to hurt me." (Id.). After Ian left, Jordan shut and locked the door. He then unstrapped Alice's arms, took her legs, and swung them over the side of the bed. Jordan then got behind Alice and engaged in anal sex.
The last time that Jordan abused Alice was in July 2012. While watching a movie with Jordan and Ian, Alice became tired and went to bed. Shortly after, Jordan came into her room and began kissing her neck, then kissing and licking her breasts on top of and underneath her bra, then kissing and licking her vagina on top of and underneath her underwear, before inserting his penis into her vagina. After Jordan had finished, and she had cleaned herself off in the bathroom, Alice took the phone to her bedroom and called her grandmother for help. Alice snuck out of the house and into her grandmother's waiting car. They went back to the grandmother's house and called the police. The police told Alice to go to Dayton Children's Hospital, which she did, where a standard rape-kit examination was performed and the clothing that she was wearing-shorts, underwear, and bra-was collected.

Id., ¶ 3-5.

         {¶ 4} On January 8, 2016, while his direct appeal was pending, Jordan filed a petition for post-conviction relief pursuant to R.C. 2953.21. Therein, he sought to vacate his conviction and sentence on the basis that he was denied the effective assistance of counsel at trial. Specifically, Jordan argued that counsel was ineffective because he failed to use a retained expert medical witness to challenge the State's witness who examined the victim and found no visible injuries. Jordan also claimed that counsel was ineffective because he failed to utilize medical research articles provided by the retained expert to impeach the State's medical expert. Jordan also argued that counsel was ineffective because he exposed Jordan's DNA to the clothing evidence thereby contaminating the evidence. Finally, Jordan's petition raised an argument of cumulative error based upon these claimed instances of ineffective assistance of counsel.

         {¶ 5} With regard to his first two claims, Jordan argued that the victim, despite her allegation that she had been assaulted at least 50 times, had a normal physical examination. He argues that this belies her claims of sexual assault. Jordan notes that trial counsel retained Dr. Stephen Guertin to review the victim's medical records, and that Guertin thereafter submitted a report to trial counsel in which he opined that the "alleged victim most likely would have had physical evidence/abnormalities/physical findings specific to sexual abuse/activity. In fact, based upon the medical research, there should have been not only an abnormal exam but 2 or more injuires/findings regarding the alleged victim. In regards to the most recent allegation and the fact that the hospital exam was conducted within several hours of the alleged assault, even the most superficial forms of injury would have persisted beyond the first 24 hours." Dkt. No. 22, p. 5.

         {¶ 6} Jordan next argued that trial counsel was ineffective because he permitted the victim's clothing to be exposed to Jordan's DNA after the clothing had already been analyzed and found to have no foreign DNA. Of relevance hereto, a rape evidence kit was collected at the hospital at the time of the July 29, 2012 examination of the victim. The kit, which included the victim's bra, panties and shorts, was submitted to the Miami Valley Regional Crime Laboratory for DNA testing. A DNA forensic scientist examined the underwear only for the presence of semen. When no semen was detected, the underwear was swabbed in the front interior. The forensic scientist did not swab all areas of the panties, but instead swabbed where she believed it most likely to find semen. The swabs were then sent for DNA testing by another forensic scientist. The samples were insufficient and provided no evidence of foreign DNA.

         {¶ 7} Thereafter, on July 16, 2013, trial counsel took Jordan to look at the collected evidence. According to Jordan, the clothing was removed from sealed bags by a detective. On October 29, 2014, the rape kit evidence was submitted to the Ohio Bureau of Criminal Investigation (BCI) for re-testing. This testing found the presence of amylase, a protein, on the items of clothing. Samples were taken from these areas and tested for DNA. During the testing a partial DNA profile, from which Jordan could not be excluded, was found on the shorts and panties. DNA consistent with Jordan was found on the bra. Jordan argued that by exposing the clothing to him, trial counsel permitted the clothing evidence to be tainted with his DNA.

         {¶ 8} Finally, Jordan raised the doctrine of cumulative error as his final argument in his petition.

         {¶ 9} The trial court set February 23, 2016 as the deadline for filing a response to the petition. On March 1, 2016, Jordan filed a motion for summary judgment. Less than an hour later the State filed a motion to dismiss the petition. Upon motion by Jordan, the trial court entered an order striking the State's motion to dismiss as untimely. The trial court also overruled the petition for post-conviction relief without conducting a hearing thereon. Jordan appeals.

         II. Standard of Review

         {¶ 10} A post-conviction proceeding is not an appeal from a criminal conviction, Instead, it is a "civil collateral attack on a criminal judgment." State v. Wells, 2d Dist. Montgomery No. 22389, 2008-Ohio-4932, at ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). We review a denial of a petition for post-conviction relief for which no hearing was held under an abuse of discretion standard. State v. Harden, 2d Dist. Montgomery 23617, 2010-Ohio-3343, ¶ 10, citing State v. Hicks, 4th Dist. Highland No. 09CA15, 2010-Ohio-89, ¶ 10 (surveying other Ohio courts). The term "abuse of discretion" has been defined as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).

         {¶ 11} R.C. 2953.21(D), provides, in pertinent part, as follows:

Before granting a hearing on a petition filed upon division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of court, and the court reporter's transcript.

         {¶ 12} A petitioner in a post-conviction relief proceeding bears the initial burden of submitting evidentiary documents with sufficient facts to demonstrate a constitutional deprivation, such as ineffective assistance of counsel, that would merit a hearing. State v. Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980), syllabus. Broad conclusory allegations are insufficient, as a matter of law, to require a hearing. Id.

         {¶ 13} In assessing affidavits that have been submitted with a post-conviction relief petition, the court should give them due deference but may use its discretion to weigh the credibility of the affidavits in deciding whether to accept the statements as true. State v. Calhoun, 86 Ohio St.3d 279, 284, 714 N.E.2d 905 (1999). A petition for post-conviction relief may be properly denied without a hearing where the petition, its supporting evidence, and the record "do not demonstrate that the petitioner set forth sufficient operative facts to establish substantive grounds for relief." Id. at 289.

         III. Failure to Conduct Evidentiary Hearing

         {¶ 14} Jordan's first ...


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