A trial court judge has made a decision on Kevin Gaffin’s Petition for Postconviction Relief. A Petition for Postconviction Relief is a procedure that allows the defendant in a criminal case to bring more evidence or raise additional issues in a case after a judgment has been made (post-trial). In 2016, Gaffin was found guilty of three counts of child rape and felonious assault.
Last year, the Fourth District Court of Appeals found errors in the conviction of Gaffin. Adams County Common Pleas Judge Brett Spencer recused himself and Judge Rocky Coss, a visiting judge at the Adams County Common Pleas Court, sentenced Gaffin to life without parole for each count of rape. In addition, Gaffin received eight years for the felonious assault.
In his appeal, Gaffin argued that the Adams County Common Pleas Court violated his right to due process under the Ohio and United States’ Constitution when it dismissed his post-conviction petition without conducting an evidentiary hearing. Gaffin argues that he produced sufficient credible evidence to demonstrate that he was denied his constitutional right to effective assistance of counsel. According to Gaffin, the information contained in affidavits, when considered with the full record, establish a deficiency in his trial counsel’s performance that led to an unjust result at trial. Gaffin argues his legal representation did not call upon or interview witnesses that with their testimony could have led to a different outcome. Gaffin’s attorney during his 2016 trial was Aaron Haslam. Haslam is now in private practice but previously served as Adams County Prosecuting Attorney.
The State alleged that trial counsel’s performance did not fall below an objective standard of reasonableness. The state also argued that Gaffin was not entitled to an evidentiary hearing because he failed to demonstrate prejudice as a result of his trial counsel’s alleged deficiencies.
In her opinion, the Fourth District Court of Appeals Judge Marie Hoover wrote, “After reviewing the evidence, we find that Gaffin established that he received constitutionally ineffective assistance of counsel. First, Gaffin showed that his trial counsel’s performance fell below an objective level of reasonable representation. Although trial counsel’s decision not to call a witness may be considered a trial strategy. Gaffin’s trial counsel not only failed to call a majority of the witnesses he subpoenaed, the affidavits show that he failed to interview nearly ten of those individuals.”
Hoover goes on to say, “Second, in light of the admissible evidence Gaffin provided, we find that there is a reasonable probability that the jury would have returned a different verdict. Had the jury heard the witnesses’ testimony, especially that of the two officers from the Manchester Police Department, it is reasonably likely that the outcome of the trial would have been different. Because Gaffin provided sufficient evidence in his petition for post-conviction relief to satisfy both prongs of an ineffective assistance of counsel claim, we find that any rational trial court would have found substantive grounds for relief existed and granted an evidentiary hearing. Therefore, we find that the trial court abused its discretion in denying Gaffin’s post-conviction relief petition without a hearing.”
The Appeals Court did not find error in the argument that the Adams County Pleas Court violated Gaffin’s right to due process under the Ohio and United States’ Constitutions when it, without any contradictory evidence from the State dismissed Mr. Gaffin’s affidavit as self-serving and not credible.
In April, visiting Jude Rocky A. Coss, made his judgment writing, “For the foregoing reasons, it is the judgment and order of the Court that the Defendant’s petition for postconviction relief be and is hereby denied. The Court finds that there is no just cause for delay and that is a final appealable order.”
In the decision, Judge Coss writes,
“The Defendant argues that his trial attorney’s failure to investigate resulting in his trial performance was deficient at trial. It is clear that prior to and during the trial, Defendant’s trial counsel did not interview or even contact all of the witnesses whose names were given to him by the Defendant that he subpoenaed for the trial. Trial counsel did not talk with the witnesses who were not called while they were at the courthouse. Obviously, this suggests that the trial counsel failed to adequately investigate prior to trial.
However, two witnesses were called the Defendant at trial and he testified. There was going to be a third witness who trial counsel indicate was ill and vomiting. After the break, that witness was not called to testify. The Defendant did not call the trial counsel as a witness or present his testimony through deposition or affidavit. The Defendant did not testify at the evidentiary hearing on the petition so there is no evidence as to what discussions took place between the Defendant and his trial counsel as to which witnesses should testify and what their testimony would have been. There is no evidence that suggests that the Defendant demanded that the witnesses who testified at the evidentiary hearing be called at the trial of this case.
In the decision that remanded this case back for an evidentiary hearing, the Fourth District Court of Appeals stated at ¶30, “When considering whether trial counsel’s representation amounts to deficient performance, a “court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance [.]” Strickland at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”
The Defendant argues that the failure to call the witnesses who testified at the evidentiary hearing constituted deficient performance as required by Strickland. However, the testimony that was offered in the evidentiary hearing was the impeachment testimony of Briana Wisecup and (the victim). It is necessary to evaluate that the testimony together with all of the evidence offered at trial to determine if this was deficient performance by trial counsel or sound trial strategy.
The testimony that the Defendant argues would have likely changed the result of the trial concern the events of Thanksgiving Day of 2012 and the conduct of (the victim) during the period of 2012 to 2015. Jimmy Vaughn’s testimony is that he did not see any violence in the home on Thanksgiving Day of 2012 and observed Briana Wisecup was intoxicated later that afternoon after he arrived at the house. Does this actually impeach the testimony of Briana Wisecup?
Briana Wisecup and (the victim) both testified that the incident in which the Defendant grabbed him by the throat happened after… (the victim) was awakened that morning and told to go get items from a vehicle. Mr. Vaughn was not present until later that afternoon so it does not actually impeach the testimony of either Briana or (the victim). His observation that (the victim) did not appear afraid of Defendant would have been merely cumulative to the trial testimony since there was testimony at trial that (the victim spent time with the Defendant after 2008 and did not appear to be afraid of him.
As for the intoxication of Briana, the Court does not find that it has any impeachment value because Mr. Vaughn saw her intoxicated and passed out later that afternoon after the incident had occurred. There was no evidence that she had been drinking or was intoxicated at the time of the incident.
Also, it is significant in the opinion of the Court that at the trial, the Defendant testified that he left the marital home which belonged to Briana the day after Thanksgiving 2012, the day that Mr. Vaughn and Defendant went hunting. Obviously, there must have been something to cause that to occur.
Michael Decker, Jason Mallott and Jeff Bowling’s testimony would have been that (the victim) did not act afraid of the Defendant when they observed him. It is important to remember that the sexual assaults occurred in May and December of 2008 when (the victim) was six years of age. The evidence at trial did not indicate any further sexual assaults after that. Vaughn and Decker’s testimony both were about their observations in 2012, four years later. Officer Bowling observed (the victim) at the Defendant’s house in 2014 which was nearly six years later.
As previously noted, the testimony of Tyler Cantrell as offered at the evidentiary hearing was totally inadmissible as it was based solely upon hearsay statements that he obtained while he was acting as Defendant’s trial counsel. His opinion as to what the video of the hunting trip showed was also not admissible as opinion evidence.
The Defendant argues that this testimony shows that (the victim) by his conduct was no afraid of the Defendant and therefore would have impeached his trial testimony. The trial testimony clearly showed that (the victim) continued to do things with the Defendant after the assaults in 2008 and did not disclose them for nearly seven years. He denied any sexual assault in May of 2008 when interviewed by Bruce England. The testimony of Dr. Conner was that this was not at all unusual and in fact common because there was still a connection between victims and their abusers, particularly when it was a family matter.
Therefore, this testimony would not contradict that expert scientific testimony, but rather it would corroborate Dr. Connor’s opinion. Had the testimony of Decker, Vaughn, Malott, and Bowling been presented by trial counsel, it actually could have strength the state’s case because of the testimony of Dr. Connor regarding child accommodation syndrome and the behavior of child victims towards their abuser showing connection or affection for their them despite being victimized. As noted, there is no evidence before the Court that the Defendant trial counsel’s decision not to call these witnesses was not a sound trial strategy as trial council was not called as a witness at the evidentiary hearing.
With regard to the testimony of Bruce England, his testimony at the evidentiary hearing was the he was no asked questions that he thought might be asked on cross-examination. However, Mr. England’s direct testimony at trial covered the first investigation in 2008 in which (the victim) denied any sexual abuse. He testified that (the victim) showed no fear of the Defendant and that they appeared to have a good relationship. His testimony regarding the 2015 investigation was that he met with (the victim) and Briana Wisecup, referred them to Travco Behavioral Health for counseling and set up the interview at the Mayerson Center at Children’s Hospital. After that, he called the Adams County Prosecuting Attorney’s Office and that office took over the investigation. His surprise at not being asked certain questions on cross examination is not evidence that trial counsel’s performance was deficient.
The testimony of Mr. England at the evidentiary hearing did not demonstrate that his testimony at trial was incomplete or that he could have testified to anything other that what he did at trial. While his cross examination at trial was very brief, the record does not demonstrate what questions he should have been asked or what the effect of his answers to those questions would have been. Overall, his testimony at trial clearly established that (the victim) denied any abuse in 2008 and appeared to have a good relationship with the Defendant at the time all of which could be considered as impeachment testimony, and the jury was well aware of that when it rendered its verdict.
Since the record before this Court including the trial testimony and exhibits do not show the decision not to call other witnesses or to cross examine Bruce England longer was not sound trial strategy, the Court finds that the Defendant has not met his burden to show that his trial counsel made errors so serious that he failed to function as counsel guaranteed by the Sixth Amendment, State v Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77 ¶61.
The Court further finds for the reasons set forth in this decision that the Defendant has also not met his burden to prove that he was prejudiced by the failure to present the testimony of witnesses who testified at the evidentiary hearing. AS this Court has noted, in reality, the testimony of Jimmy Vaughn regarding Thanksgiving Day of 2012 is really not impeachment testimony. He was no present when the Defendant grabbed (the victim) by the throat after he was awakened to get items from the car for the Defendant. His testimony that Briana was intoxicated on the late afternoon of Thanksgiving of 2012 simply had no relevance to what happened in the morning. Neither prove that the assault did not occur testified at trial.
The testimony of Jimmy Vaughn, Michael Decker, Jason Malott and Jeff Bowling about the behavior of (the victim) could actually have strengthened the state’s case because it was exactly what Dr. Conner described in his testimony. Further, there was already evidence in the trial record from Bruce England that (the victim) denied being abused in 2008, that Briana did not believe the Defendant would do such a thing, and that (the victim) continued to do things with the Defendant after the assaults. Their testimony on this issue would have been cumulative.
Further, the Defendant was able to show that (the victim) was incorrect in at least two respects regarding his testimony about the assaults. He told Cecilia Freihofer during her interview of him that at the time of the attacks in 2008 his mother was working at the Brown County Hospital and driving a white Chevy Impala. Defendant’s trial council introduced copies of Briana’s W-2’s in 2011 and of the car’s title to show that is was in 2011 and not 2008 when she worked there and obtained the car. He also questioned her about this during cross-examination which demonstrated inconsistency between (the victim)’s testimony and hers as well as the exhibits.
This evidence, coupled with his denial that Defendant had abused him when he was interviewed by Bruce England in May of 2008 and that (the victim) continued to do things with the Defendant such as hunt and go to demolition derbies was evidence that the hurry could have used to find (the victim)’s testimony not credible.
Finally, the testimony of Jason Malott that in August 2012, Briana told him that she would do anything to get the Defendant arrested because of a dispute over property is of little import. This incident occurred prior to the Defendant’s assault of (the victim) on Thanksgiving Day of 2012. Based upon the testimony of both Briana and Defendant, they were still living together at that time. Both testified he did not leave until Friday after that Thanksgiving. This was over two years prior to the disclosure of the sexual abuse by (the victim) and there is no testimony that this disclosure was tied in any way to the earlier statement about having the Defendant arrested.
If Briana was determined to have the Defendant arrested in August 2012, she has ample opportunity to do so on Thanksgiving Day or on the Friday after he left. (The victim)’s disclosure of sexual assault occurred in February of 2015. There is no evidence from Bruce England or the school employees that Briana made any statement about the Defendant arrested. The Defendant provided no evidence in the evidentiary hearing that Briana had been continuously making this threat. Further, both she and Defendant testified that there were ongoing disputes between them even at the time of the trial in this case over his non-payment of money owed her under the divorce decree. The jury could have used this to discredit Briana’s testimony. The testimony of such a remote comment would have not changed the outcome of this case.”
Kevin Gaffin is being housed at the Ohio Correctional Reception Center of the Ohio Department of Rehabilitation and Correction. Copies of the court record for Case No. 20150116 can be viewed online by clicking the link below.