Thoma v. Warden Pickaway Correctional Institution

Filing 20

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of ap pealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 11/12/2020. Signed by Magistrate Judge Michael R. Merz on 10/28/2020. (kpf)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BRIAN THOMA,
Petitioner,

:

- vs -

Case No. 1:20-cv-282
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN,
Pickaway Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought by Petitioner Thoma with the assistance of counsel, is
before the Court for decision on the merits. Relevant filings are the Petition (ECF No. 1), the State
Court Record (ECF No. 9), the Return of Writ (ECF No. 10), and Petitioner’s Reply (ECF No. 15).
The Magistrate Judge reference in the case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District. Final decision of the case remains
with District Judge Black.

Litigation History

The March 2016 term of the Warren County Grand Jury indicted Thoma on eight counts
of sexual battery in violation of Ohio Revised Code § 2907.03(A)(5) (Counts 1, 2, 4, 6, 8, 10, 12,
& 14) and seven counts of gross sexual imposition in violation of Ohio Revised Code §
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2907.05(A)(5) (Counts 3, 5, 7, 9, 11, 13, & 15). (Indictment, State Court Record, ECF No. 9,
PageID 51-57.) The alleged victim on each count was his fifteen-year-old adopted daughter, H.T.
Thoma waived his right to jury trial and the case was tried to the bench. After he was convicted
on all counts, the trial court merged the sexual battery and gross sexual imposition charges and
sentenced Thoma to forty-two months on each count, to be served consecutively for a total of 336
months.
Thoma appealed to the Ohio Twelfth District Court of Appeals which affirmed the
conviction, but remanded for resentencing. State v. B.J.T., 2017-Ohio-8797 (Ohio App. 12th Dist.
Dec. 4, 2017), appellate jurisdiction declined, 152 Ohio St. 3d 1464 (2018). On remand he
received the same sentence which was then affirmed on appeal, State v. B.J.T., 2018-Ohio-4720
(Ohio App. 12the Dist. Nov. 26, 2018), appellate jurisdiction declined, 2019-Ohio-944 (2019).
On February 15, 2018, Thoma filed through counsel a petition for post-conviction relief
under Ohio Revised Code § 2953.21. The trial court denied relief (Order, State Court Record,
ECF No. 9, Ex. 30). The court of appeals again affirmed. State v. B.J.T., 2019-Ohio-1049 (12th
Dist. Mar. 25, 2019), appellate jurisdiction declined, 2019-Ohio-2982 (2019).
Thoma then filed the instant Petition, pleading the following grounds for relief:
Ground One: Trial counsel committed ineffective assistance of
counsel at trial in violation of the Sixth Amendment right to counsel.
Supporting Facts: Trial counsel failed to present exculpatory
witnesses and evidence in support of the defense.
Ground Two: Trial counsel committed ineffective assistance of
counsel in plea bargaining in violation of the Sixth Amendment right
to counsel.
Supporting Facts: Trial counsel failed to effectively negotiate in
plea bargaining and to communicate with Thoma about his plea
options.

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Ground Three: Thoma’s sentence was disproportionate in
violation of the Eighth Amendment.
Supporting Facts: Thoma was sentenced disproportionately to
similarly situated offenders convicted of similar crimes.
Ground Four: Thoma’s convictions were against the manifest
weight of evidence and supported by insufficient evidence in
violation of the Fourteenth Amendment.
Supporting Facts: Weighing evidence as a whole, there was
insufficient evidence to support the required elements of
penetration, sexual conduct, and sexual gratification.
(Petition, ECF No. 1.)

Analysis

Ground One: Ineffective Assistance of Counsel

In his First Ground for Relief, Thoma claims he received ineffective assistance of trial
counsel when his attorney did not present exculpatory witnesses. Respondent defends this Ground
for Relief on the merits, asserting that the Twelfth District’s rejection of the claim is entitled to
deference (Return, ECF No. 10, PageID 867-71).
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
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defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."

466 U.S. at 689.
As to the second prong, the Supreme Court held: “The defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to overcome
confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184
(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing
Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,
466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”
Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.
86, 111-12 (2011).
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In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

Uncalled Lay Witnesses

In his Reply, in support of his First Ground for Relief, Thoma summarizes the evidence he
believes should have been presented from a number of uncalled lay witnesses as follows:
Numerous witnesses were available to testify on Thoma’s behalf at
trial to dispute the characterization of him as a violent person. See
D. Thoma Aff. ¶ 8; Sue Thoma Aff. ¶ 13; J. Logan Aff. ¶ 8; M.
Carrancejie Aff. ¶¶ 14-15 PAGEID 323-35. These witnesses
frequently observed Thoma’s interactions with H.T. and H.T.’s
behavior around her father during the time he was supposedly
digitally penetrating her on a weekly basis. According to the
witnesses, Thoma was not violent, to the point of not fighting back
when Wendy was physically aggressive towards him. See M.
Carrancejie Aff. ¶ 10 PAGEID 332. In addition, H.T. had a close,
warm, and loving relationship with her father and did not seem
afraid of him in any way. See id. at ¶¶ 4, 5, 11; D. Thoma Aff. ¶¶ 5,
7; J. Logan Aff. ¶ 6 PAGEID 329-30, 331-2, 335.
For example, shortly before Thoma was arrested, Thoma’s sister
Michelle Carrancejie and her family visited the Thoma[‘]s. See M.
Carrancejie Aff. ¶ 3 PAGEID 331. During the trip, H.T. was
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laughing and cutting up with her dad, was sitting close by him, and
asked for his help in learning to drive. Id. at ¶ 3 PAGEID 331. H.T.
voluntarily went alone with Thoma in his vehicle to practice driving.
Id. at ¶¶ 4-5 PAGEID 331.
In addition, either one or two nights before Thoma was arrested, he
and H.T. visited his Uncle Doug, who lived about 10 minutes away.
See D. Thoma Aff. ¶¶ 4, 7 PAGEID 329-30. There were a lot of
people in the living room, and Thoma was sitting on the couch with
his legs slightly spread. Id. at ¶ 7 PAGEID 330. H.T. voluntarily sat
on her dad’s knee and put her arm around him. Id. The night before
Thoma was arrested, H.T. told Thoma’s friend what a great dad he
is and how appreciative she was of him teaching her how to drive.
See J. Logan Aff. ¶¶ 3-4 PAGEID 334. And. H.T. reported that she
was much more afraid of her mother than her father, and that no one
was afraid of her father. See Sue Thoma Aff. ¶ 8 PAGEID 326.
These are hardly the words and actions of a child who was afraid of
her father or feared for her life.
In addition, numerous family members were present in H.T.’s life
from whom she could have asked for help. H.T. went driving alone
with her grandmother, had an uncle who lived only 10 minutes
away, and an aunt who visited while H.T. was allegedly being
sexually abused. See id. at ¶¶ 3, 6; Sue Thoma Aff. ¶ 9; D. Thoma
Aff. ¶ 4. PAGEID 323-35. Any of these adults would have helped
her, but she said nothing and did not seek help.
In addition, numerous witnesses were available to testify that
Wendy has a severe alcohol problem and frequently becomes
intoxicated and angry. See Sue Thoma Aff. ¶ 5 PAGEID 326
(describing incident in which Wendy drank so much that she
couldn’t get up off the floor); J. Logan Aff. ¶ 7 PAGEID 335
(describing incident in which Wendy became drunk and verbally
abusive); M. Cararncejie Aff. ¶¶ 7-9 PAGEID 332 (describing
incident shortly before Thoma’s arrest where Wendy was
consuming heavy alcoholic drinks). Wendy also told Thoma’s
mother the day after he was arrested that she was going to “make
this so much worse than it was” for Brian. Id. at ¶ 10 PAGEID 332.
Had this testimony been presented at trial, it would have undercut
Wendy’s credibility and ability to report reliable observations and
would also have demonstrated that she had a reason to encourage
her daughter to exaggerate the allegations against Thoma. This
testimony would have been particularly important, given that H.T.
did not report allegations regarding a knife during her first extensive
interview with police, but only later added a knife to her statement

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after her mother, who she was afraid of, took her on an expensive
shopping trip.
(ECF No. 15, PageID 902-04).
The incidents in suit occurred from September 2015 to April of 2016; the trial occurred in
October 2016. The testimony these witnesses were assertedly prepared to give at trial was offered
to by way of affidavits attached to the post-conviction petition filed January 18, 2018, almost two
years after the crimes. They are summarized as follows:
Affidavit of Petitioner: I asked my attorney through my mother to
get me a polygraph examination. The attorney advised against it
because the results would be inadmissible.
Affidavit of Deborah “Sue” Thoma, Petitioner’s mother:
Although H.T. is adopted, we always treated her as family. Wendy,
Brian’s spouse, has a serious alcohol problem. Sue lives in Florida
but visits regularly. The last time she did so was on Easter before
Brian was arrested. 1 During the trip she found H.T.’s relationship
with Brian to be positive. When she returned to Ohio after Brian’s
arrest, Wendy did not want to see her.
Affidavit of Doug Thoma, Brian’s uncle: He lived nearby and saw
Brian and his family about twice a month. H.T.’s relationship with
Brian was “very good, warm, and loving.” Within forty-eight hours
before Brian’s arrest, he and his family were at Doug’s home.
During the visit, H.T. went and sat on her father’s lap.
Affidavit of Michelle Carrancejie, Brian’s sister: About a month
before Brian’s arrest, she, her family, and her mom came to Ohio to
visit for nine days. 2 During the trip, H.T. seemed to be “a complete
happy and normal teenage girl” who would sit with her dad and go
places with him alone. H.T. could have approached her or Doug or
“Sue” for help, but did not. Wendy had a great deal of alcohol in
the house. Brian is not a violent person. His relationship with H.T.
“always seemed close and loving.” The same day that H.T. reported
the crimes to the police, “Wendy went immediately to the bank and
withdrew a lot of money from hers and Brian’s account. She and
[H.T.] went shopping at the outlet mall.” She said this could be
1

No date is given, but the Court takes judicial notice that Easter in 2016 was March 27 in the Roman calendar which
is typically followed in the United States. That would put the visit in the midst of the period of abuse.
2
She describes the trip as coinciding with her daughter’s spring break. This is consistent with her mother’s placing
the trip at Easter.

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confirmed by bank statements and she would never go shopping
with her daughter if her daughter revealed abuse like this. She talked
with trial counsel and would have testified to these facts if called.
Affidavit of James H. Logan II. He is a lifelong friend of Brian,
whose mother was friends with Brian’s mother before they were
born. Shortly before Brian’s arrest, H.T. told him how much she
appreciated her dad’s teaching her to drive. When Brian and his
family visited the Logans in Florida several months before Brian’s
arrest, H.T. “acted like a completely normal teenager” who had a
“normal, loving, father-daughter relationship.” Wendy tended to
drink too much.
(Attachments to Post-Conviction Petition, ECF No. 9, PageID 323-35).
The Twelfth District Court of Appeals considered the proffered affidavits on appeal 3 from
the trial court’s denial of post-conviction relief and concluded:
[*P13] Appellant argues that his attorney failed to present the
testimony of several witnesses who he believes would have helped
to "undercut the narrative" told by the victim and her mother during
trial. In attempting to substantiate his claim, appellant submitted
affidavits from witnesses who averred that appellant had a positive
relationship with the victim. Appellant also seeks to diminish the
credibility of the victim's mother by claiming that she is an erratic
alcoholic. Furthermore, appellant submitted bank statements, which
appellant argues, shows that the victim's mother took the victim on
"an expensive shopping spree" after she reported the sexual
encounters.
[*P16] Following review, we find the trial court did not err by
denying appellant's petition for postconviction relief. Appellant's
arguments are entirely speculative and amount to nothing more than
an attempt to relitigate this matter utilizing a different trial strategy.
[*P17] As to the failure to call certain witnesses regarding
appellant's relationship with the victim and the victim's mother, we
note that a decision regarding whether or not to call witnesses falls
within the ambit of trial strategy. State v. Robinson, 12th Dist. Butler
No. CA2014-12-256, 2015-Ohio-4649, ¶ 51. In this case, appellant
fails to establish either prong of his ineffective assistance claim.
There is little probative value to any evidence that appellant once
shared a strong relationship with the victim, as the issue at trial was
3

The trial court had rejected the post-conviction claims on the basis of Ohio criminal res judicata doctrine, but the
Twelfth District considered the proffered evidence on the merits. State v. B.J.T., 2019-Ohio-1049, ¶ 12.

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whether appellant had sexually abused her, a fact that appellant did
not dispute during interviews with law enforcement. Furthermore,
we decline to find ineffective assistance of counsel for appellant's
attempt in this appeal to diminish the credibility of the victim's
mother.
State v. B.J.T., 2019-Ohio-1049.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court such as the ineffective assistance of trial counsel claim presented in the First
Ground for Relief, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.
Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 69394 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
In deciding Thoma’s ineffective assistance of trial counsel claim, the Twelfth District held
that “[i]n a postconviction petition asserting ineffective assistance of counsel, the petitioner must
first show that "his trial counsel's performance was deficient; and second, that the deficient
performance prejudiced the defense to the point of depriving the appellant of a fair trial.” State v.
B.J.T., 2019-Ohio-1049, ¶ 15, citing its own precedent State v. Widmer, 12th Dist. Warren
CA2012-02-008, 2013-Ohio-62, ¶ 132, which in turn relies on the controlling Supreme Court
precedent, Strickland v. Washington, 466 U.S. 668 (1984). Thus Thoma’s burden in habeas is to
show that the Twelfth District’s decision is an unreasonable application of Strickland or an
unreasonable determination of the facts on the basis of the evidence presented.
As to the uncalled lay witnesses, the Magistrate Judge agrees with the Twelfth District’s

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assessment of the probative value of their proffered testimony. The issue at trial was whether
Thoma digitally penetrated his daughter. Whether they had had in the past, even the relatively
recent past, an apparently warm relationship does not speak to that critical issue. None of the
proffered witnesses suggested any motive for H.T. to lie about her father’s conduct. Nor do they
offer, for example, alibi-type testimony that Thoma was not in the house with H.T. when she
testified the abuse happened. None of them contradicted H.T.’s trial testimony with any proof she
had made a prior inconsistent statement. And except for life-long friend Logan, they are all
relatives of Petitioner.
Wendy Thoma testified she first learned of H.T.’s allegations from a police officer on April
21, 2016; H.T. herself did not tell her mother about the abuse that day (Trial Transcript, State Court
Record, ECF No. 9-1, PageID 553). Wendy testified that when she next talked to Thoma, he asked
for her to put money in an account so that he could bail himself out. She refused and said she
would not do anything to help him. Id. at PageID 555-56. She testified that she had possession of
Thoma’s cellphone, read text messages recorded on it between H.T. and Thoma, and then turned
it over to the police. Id. at 556-57.
Wendy Thoma’s actual testimony would hardly have been undermined by proof that she
had a drinking problem. Presumably if she had been drunk on the witness stand, the trial judge
would have dealt with it summarily. None of the witness affidavits suggest any motive she might
have had to encourage H.T. to fabricate the incidents or any observed occasion when her drinking
impaired her memory. Nor do they suggest any animosity between Wendy and Brian, who had
been married for ten years at the time of the incidents 4, before she learned of the abuse. If
Petitioner is suggesting that Wendy encouraged H.T. to fabricate the abuse and then lie about it,

4

The Reply refers to Wendy as Brian’s “ex-wife,” (ECF No. 15, PageID 900), but they were still married on April 21,
2016, and none of the trial testimony or tendered post-trial affidavits speak of any marital discord prior to that date.

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the Magistrate Judge believes it is significant that H.T. testified she told other people at school
first instead of her mother, at least as to any claim that H.T. fabricated the abuse at Wendy’s
instance.
Thoma makes much of his sister’s statement in her affidavit that Wendy withdrew a large
amount of money from a joint account she had with Brian on April 21, 2016. Michelle Carrancejie
offers no evidentiary foundation for this testimony. Indeed, Thoma’s counsel exaggerates even
what Carrancejie swore to. Thousands of dollars withdrawn from an account does not equate to
thousands of dollars spent on clothes for H.T. The withdrawal is perfectly consistent with Wendy’s
testimony she would do nothing to help Thoma bail out. And the Reply suggests the inference that
Wendy took H.T. shopping to reward her for lying to the police. However, the conduct is
completely consistent with a mother’s effort to comfort a daughter whom she has just learned was
sexually abused by her father repeatedly over a six-month period.
On balance, the Twelfth District’s characterization of the conclusions Thoma argued from
the affidavits as “speculative” seems accurate or, at the very least, within the range of appropriate
judicial evaluation of evidence.

Failure to Elicit Medical Testimony

On the same day she told police about the abuse, H.T. had a sexual assault examination at
Dayton Children’s Hospital which the Court understands to be common police practice when a
person alleges she has been the victim of sexual misconduct. The examination allegedly “revealed
no evidence of scraping, bleeding, scarring, or other vaginal damage.” (Reply, ECF No. 15, PageID
901, citing State Court Record, Trial Tr., ECF No. 9-1, PageID 567 where State’s Exhibit 1 was

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identified.) The purportedly quoted language does not appear in the record at the cited location.
In any event, the Twelfth District found that the examination revealed no abnormalities or injuries.
The report was admitted in evidence, but Thoma faults his attorney for failure to subpoena the
medical examiner or to “otherwise offer expert testimony to explain these findings.” Id. at PageID
901.
The Twelfth District on direct appeal found that the medical report was not inconsistent
with H.T.’s testimony:
The fact that there were no injuries or abnormalities found during
H.T.'s examination on April 21, 2016, does not mean that appellant
did not penetrate H.T.'s vagina when he sexually assaulted her. It
merely indicates that appellant's assault of the victim in the early
morning hours of April 21, 2016, did not cause any lacerations or
observable physical harm to H.T.'s vaginal area.

State v. B.J.T., 2017-Ohio-897, ¶ 28. On appeal from denial of the post-conviction petition, the
court of appeals held again:
[*P18] We similarly find that appellant's trial counsel was not
ineffective for failing to obtain a medical expert. It is wellestablished that medical testimony is not necessary to prove a sexual
assault and, oftentimes, victims will have no symptoms of physical
injury. See, e.g., State v. Hall, 12th Dist. Butler No. CA2012-01014, 2013-Ohio-4427, ¶ 33 (the fact that a victim's medical exam
was "normal" is not determinative of whether she was sexually
abused). Here, the allegation is that appellant digitally penetrated the
victim over a period of time. Physical injury was not required, nor
would the lack of physical injury be necessarily probative in light of
the allegations. As a result, appellant's counsel was not ineffective
for failing to obtain a medical expert or go into further detail
regarding the medical report.
State v. B.J.T., 2019-Ohio-1049, ¶ 18.
Thoma’s claim with respect to any uncalled medical expert is even less persuasive than his
claim about the uncalled lay witnesses. What would such an expert have testified to? No proposed

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medical testimony was presented with the post-conviction petition. H.T. did not claim her father
scratched her or caused her to bleed, so the absence of such evidence in the medical report would
not have contradicted her testimony. Thoma’s hypothesis appears to be that a medical expert
would have testified that the absence of scarring or bleeding would prove there had been no digital
penetration, but the hypothesis is purely speculative – it is not backed up by any expert willing to
testify to that effect.

Failure to Have a Polygraph Examination Conducted

Both Brian and Sue Thoma aver that trial counsel was asked to have a polygraph
examination conducted; Brian avers that Mr. Ruppert said the results would be inadmissible.
Regarding the failure to have a polygraph examination conducted, the Twelfth District wrote on
post-conviction appeal:
[*P19] Finally, appellant's counsel was not ineffective for failing
to request a polygraph examination, as such a decision was a matter
of reasonable trial strategy. Concerns regarding a polygraph
examination may very well have been more pronounced in this case,
as appellant had already made several incriminating admissions. As
we addressed in appellant's direct appeal, the evidence to support
appellant's convictions was overwhelming. In text messages
exchanged with the victim, appellant begged the victim not to tell
anyone. Appellant promised "[a]bsolutely never will I be so f******
stupid again" and pleaded with the victim to "trust me when I tell
you that this will never happen again." Appellant also admitted he
made a "mistake" and touched the victim "in places she shouldn't be
touched." Appellant admitted that he touched the victim's breasts
and her vaginal area "skin to skin" with his hands. He stated he had
touched the victim "maybe once a week for the last couple months,"
with the last time being "last night." He told detectives that the
incidents occurred in the victim's bedroom in the middle of the night
and that he used the light on his cellphone to see. Appellant made
additional admissions in jailhouse phone calls where he admitted to

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family members that he "touched [the victim] inappropriately" and
that "she's not making anything up. It's not her fault."
State v. B.J.T., 2019-Ohio-1049.
Thoma has made no showing that this conclusion is inconsistent with sound professional
judgment in a case with recorded admissions as extensive as those here. He has also not shown
generally that it was deficient performance for a defense attorney to fail to have a polygraph
examination conducted in a case such as this. Finally, he has not shown what the results of a
polygraph examination would have been. Thus the uncalled medical witness claim fails both the
deficient performance and prejudice prongs of Strickland.
Thoma has not shown that the Twelfth District’s decision on his claim of ineffective
assistance of trial counsel is an unreasonable application of Strickland. It should therefore be
denied on the merits.

Ground Two: Ineffective Assistance of Trial Counsel in Plea Negotiations

In his Second Ground for Relief, Thoma claims he received ineffective assistance of trial
counsel in plea negotiations, particularly because Mr. Ruppert did not have the hypothetically
favorable results of a polygraph examination to bargain with.
Because plea negotiation is functionally such an important part of the criminal process
today, the Supreme Court has explicitly held that the right to effective counsel includes the right
to effective assistance of counsel in plea negotiations. Missouri v. Frye, 566 U.S. 133 (2012);
Lafler v. Cooper, 566 U.S. 156 (2012). What must an attorney do to meet that obligation? The
Court has held that at a minimum, counsel must convey a plea offer to his or her client. Frye,
supra.. However, there is no evidence here that the State made an offer which Mr. Ruppert failed
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to convey to Thoma.
This Report quotes above the Twelfth District’s reasoning about why it was not ineffective
assistance to fail to have a polygraph examination conducted. In addition, the appellate court
questioned the utility of such an examination in plea negotiations: “Moreover, appellant can
present no evidence that the state would have agreed to reduced charges had he taken a polygraph
examination.” State v. B.J.T., 2019-Ohio-1049, ¶ 20.
As noted above under the First Ground for Relief, the only evidence about the polygraph
in the case is Brian and Sue Thoma’s averments that he asked for one and Mr. Ruppert advised
against it. The Magistrate Judge accepts those averments as true. There is no evidence that Warren
County prosecutors regularly consider favorable polygraph results in plea negotiations or that a
minimum component of professional practice in criminal defense in sexual abuse cases in Ohio is
to obtain such an examination.
There is also a dearth of evidence about plea negotiations at all. Petitioner does not claim
he told Mr. Ruppert he was willing to bargain or what sentence he would have accepted. Indeed,
present counsel points to nothing in the record to prove Mr. Ruppert did not attempt to negotiate.
The burden of proving ineffective assistance of trial counsel for failure to plea bargain is on the
Petitioner and Brian Thoma’s Affidavit says nothing on the subject.
The Twelfth District’s decision on ineffective assistance of trial counsel in plea negotiation
is not an unreasonable application of Strickland and should therefore be denied.

Ground Three: Eighth Amendment Violation by Imposing Disproportionate Sentence

In his Third Ground for Relief, Thoma asserts his sentence violates the Eighth Amendment

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because it is disproportionate to the sentences imposed on other persons for similar offenses.

Procedural Default

Respondent asserts this claim is procedurally defaulted because it was never fairly
presented to the Ohio courts as a federal constitutional claim (Return, ECF No. 10, PageID 85661). Thoma responds that he “exhausted this claim in state court by presenting both the operative
facts and utilizing the terminology of Eighth Amendment case law in state court.” (Reply, ECF No.
14, PageID 914).

To preserve a federal constitutional claim for presentation in habeas corpus, the claim must
be "fairly presented" to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by
Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v.
Smith, 581 F.3d 410, 418 (6th Cir. 2009).
There are occasions when a state court defendant will have made claims in the state courts
which, while not explicitly invoking the United States Constitution, in fact fairly place before the
state courts the substance, both facts and legal theory, of a claim or claims later made in habeas
corpus.
[T]he ways in which a state defendant may fairly present to the state
courts the constitutional nature of his claim, even without citing
chapter and verse of the Constitution, include (a) reliance on
pertinent federal cases employing constitutional analysis, (b)
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reliance on state cases employing constitutional analysis in like
factual situations, (c) assertion of the claim in terms so particular as
to call to mind a specific right protected by the Constitution, and (d)
allegation of a pattern of facts well within the mainstream of
constitutional litigation.

Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987); accord, Whiting v. Birt, 395 F.3d 602 (6th Cir.
2005); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
Thoma asserts that he “argued to each and every state court below that a 28-year
consecutive sentence was disproportionate to the sentences handed down in similar cases and
against similar alleged offenders.” (Reply, ECF No. 15, PageID 914). While that statement is true
on its face, it fails to grapple with the substance of the fair presentation requirement. Rather, we
must inspect the presentation in detail.
On his initial direct appeal, Thoma argued in his Third Assignment of Error that imposing
consecutive rather than concurrent sentences was contrary to Ohio law and that his sentence was
“disproportionate to the crime committed.” (Appellant’s Brief, State Court Record, ECF No. 9,
PageID 70). In the argument on this assignment of error, Thoma cited numerous Ohio cases but
no federal cases; the Eighth Amendment is not mentioned.
On his direct appeal after resentencing, Thoma again asserted his sentence of twenty-eight
years was disproportionate to other sentences for those crimes [sexual battery and gross sexual
imposition].” (Appellant’s Brief, State Court Record, ECF No. 9, PageID 207). In support, he
cited twenty-five Ohio cases and no federal cases. Id. at PageID 208-09. The Eighth Amendment
is again not mentioned.
In his Reply, Thoma offers no analysis to show that he relied in state court on state cases
employing Eighth Amendment analysis; as noted, he cited no federal cases at all. Nor has he
shown that the pattern of facts in this case is “well within the mainstream of constitutional
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litigation.” Instead, he appears to rely on the use of words like “disproportionate” in both Ohio
sentencing case and federal Eighth Amendment cases and claim that they mean the same thing.
The Magistrate Judge disagrees. Ohio statutory law requires sentencing judges to consider
certain factors in determining the length of a sentence and whether sentences for multiple crimes
should be concurrent or consecutive. Thoma argued these statutes had not been complied with,
not that his sentence violated the Eighth Amendment.
Of course, Ohio law exhibits an interest in making punishments proportionate to the crime
committed. For that very reason the 1974 recodification of Ohio law classified felonies and
misdemeanors into various degrees commensurate with the General Assembly’s sense of a rough
equivalence in seriousness. It is a model of reason in its pattern compared with federal criminal
law which has never been codified on the same basis. 5 Moreover, a sentence can be reversed if
the sentencing court does not consider the purposes and principles of felony sentencing (Ohio
Revised Code § 2929.11) or the appropriate sentencing factors (Ohio Revised Code § 2929.12),
giving a statutory basis for sentence review without any reference to the Eighth Amendment.
Petitioner relies on Clinkscale v. Carter, 375 F.3d 430 (6th Cir. 2004), but it is clearly
distinguishable. Petitioner there had explicitly raised an ineffective assistance of trial counsel
claim in the state courts and had cited Strickland as the standard. Id. at 438.
Petitioner also relies on McMeans v. Brigano, 228 F.3d 674 (6th Cir. 2000), but that case
supports Respondent’s position. Considering whether petitioner had fairly presented a Confrontation
Clause argument to the state courts, the Sixth Circuit held:

We are of the opinion that the petitioner did not "fairly present" his
claim. In his direct appeal, the petitioner focused entirely on the
applicability of Ohio's rape shield law. Ohio Rev. Code Ann. §
2907.02. He did not cite any federal precedent and his appellate brief
only alleges that the trial judge's limitation on cross-examination
5

As unlikely bedfellows as Ted Kennedy and Strom Thurmond once collaborated on such a project, unsuccessfully.

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denied him a "fair trial" and "due process." As this court recognized
in Franklin, this is not sufficient to alert a state court that an
appellant is asserting the violation of a specific constitutional right.
While it is true that a few of the state cases cited by the petitioner on
direct appeal contain references to the Confrontation Clause, the
majority of those cases were concerned with Ohio evidence law. We
do not think that a few brief references to the Confrontation Clause
in isolated cases is enough to put state courts on notice that such a
claim had been asserted. Thus, we hold that the petitioner failed to
"fairly present" his Confrontation Clause claim to the Ohio courts.
228 F.3d at 682.
The Sixth Circuit has held that merely using talismanic constitutional phrases like “fair
trial” or “due process of law” does not constitute raising a federal constitutional issue. Slaughter
v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987);
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe, 735 F.2d
684, 688-89 (2nd Cir. 1984). Merely using the word “disproportionate” fares no better. The
Magistrate Judge concludes Thoma did not fairly present an Eighth Amendment claim to the Ohio
courts. His Third Ground for Relief is therefore procedurally defaulted.

Merits Analysis

In the alternative, Thoma’s Eighth Amendment claim fails on the merits. It is true that the
Supreme Court has said “The concept of proportionality is central to the Eighth Amendment.” (Reply,
ECF No. 15, PageID 914, quoting Graham v. Florida, 560 U.S. 48, 59 (2010)). But the quotation
bespeaks more Justice Kennedy’s penchant for grandiloquence than any holding of the case. 6 In

6

Compare Lawrence v. Texas, 539 U.S. 558 (2003), where Justice Kennedy purported to recognize a substantive due
process right to engage in any private sexual conduct by consenting adults with Lowe v. Stark County Sheriff, 663
F.3d 258 (6th Cir. 2011), where the court upheld a conviction for incest with a consenting adult stepdaughter, saying
it was unclear that Lawrence announced a new fundamental right or the proper standard of review to apply. Justice
Kennedy’s tendency to write broad generalities was the frequent subject of criticism by Justice Scalia. Lower court

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determining what constitutes clearly established federal law, “we must consult ‘the holdings, as
opposed to the dicta, of [the Supreme] Courts’ decisions as of the time of the relevant state-court
decision.’” Id., quoting Carey v. Musladin, 549 U.S. 70, 74 (2006); Ruimveld v. Birkett, 404 F.3d
1006, 1010 (6th Cir.2005).
Proportionality as a principle which has any bite in Eighth Amendment jurisprudence is found
only in capital cases. For example, in Graham, supra, the Supreme Court held life without parole was
always a disproportionate sentence for a juvenile offender. Justice Kennedy provided other examples
in Graham:

With respect to the nature of the offense, the Court has concluded
that capital punishment is impermissible for nonhomicide crimes
against individuals. Kennedy, 554 U.S., at 438, 128 S. Ct. 2641, 171
L. Ed. 2d 525; see also Enmund v. Florida, 458 U.S. 782, 102 S. Ct.
3368, 73 L. Ed. 2d 1140 (1982); Coker v. Georgia, 433 U.S. 584,
97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). In cases turning on the
characteristics of the offender, the Court has adopted categorical
rules prohibiting the death penalty for defendants who committed
their crimes before the age of 18, Roper v. Simmons, 543 U.S. 551,
125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), or whose intellectual
functioning is in a low range, Atkins v. Virginia, 536 U.S. 304, 122
S. Ct. 2242, 153 L. Ed. 2d 335 (2002).
560 U.S. at 60-61.
In contrast, discussing application of the Eighth Amendment to non-capital cases, Justice
Kennedy wrote:
The Court's cases addressing the proportionality of sentences fall
within two general classifications. The first involves challenges to
the length of term-of-years sentences given all the circumstances in
a particular case. The second comprises cases in which the Court
implements the proportionality standard by certain categorical
restrictions on the death penalty.
In the first classification the Court considers all of the circumstances
of the case to determine whether the sentence is unconstitutionally
judges can only hope that Justice Barrett will follow Justice Scalia, for whom she clerked, in this attention to detail.

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excessive. Under this approach, the Court has held unconstitutional
a life without parole sentence for the defendant's seventh nonviolent
felony, the crime of passing a worthless check. Solem v. Helm, 463
U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). In other cases,
however, it has been difficult for the challenger to establish a lack
of proportionality. A leading case is Harmelin v. Michigan, 501 U.S.
957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), in which the
offender was sentenced under state law to life without parole for
possessing a large quantity of cocaine. A closely divided Court
upheld the sentence. The controlling opinion concluded that the
Eighth Amendment contains a “narrow proportionality principle,”
that “does not require strict proportionality between crime and
sentence” but rather “forbids only extreme sentences that are
'grossly disproportionate' to the crime.” Id., at 997, 1000-1001, 111
S. Ct. 2680, 115 L. Ed. 2d 836 (Kennedy, J., concurring in part and
concurring in judgment). Again closely divided, the Court rejected
a challenge to a sentence of 25 years to life for the theft of a few golf
clubs under California's so-called three-strikes recidivist sentencing
scheme. Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L.
Ed. 2d 108 (2003); see also Lockyer v. Andrade, 538 U.S. 63, 123
S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The Court has also upheld a
sentence of life with the possibility of parole for a defendant's third
nonviolent felony, the crime of obtaining money by false pretenses,
Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382
(1980), and a sentence of 40 years for possession of marijuana with
intent to distribute and distribution of marijuana, Hutto v. Davis, 454
U.S. 370, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982) (per curiam).
The controlling opinion in Harmelin explained its approach for
determining whether a sentence for a term of years is grossly
disproportionate for a particular defendant's crime. A court must
begin by comparing the gravity of the offense and the severity of the
sentence. 501 U.S., at 1005, 111 S. Ct. 2680, 115 L. Ed. 2d 836
(opinion of Kennedy, J.). “[I]n the rare case in which [this] threshold
comparison . . . leads to an inference of gross disproportionality” the
court should then compare the defendant's sentence with the
sentences received by other offenders in the same jurisdiction and
with the sentences imposed for the same crime in other jurisdictions.
Ibid. If this comparative analysis “validate[s] an initial judgment
that [the] sentence is grossly disproportionate,” the sentence is cruel
and unusual. Ibid.
560 U.S. at 59-60.
Distilled for purposes of this case, the Supreme Court has not struck down a non-capital

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sentence as disproportionate since Solem in 1983. It is also impossible to distill a “holding” which
can be stated as a rule from the subsequent cases. Is the rule that forty-one years for distribution
of marijuana would be disproportionate? Moreover in a habeas case a District Judge cannot make
his or her own de novo determination of how much is too much, but rather must determine whether
the state courts’ determination that this much is not too much is an objectively reasonable
application of Supreme Court holdings.
Of course here we do not have an explicit ruling by the Twelfth District on any Eighth
Amendment claim, but because Petitioner insists he fairly presented the claim, we must treat it as
decided. And the Magistrate Judge does not believe the decision is unreasonable. If forty years
for distribution of a relatively harmless substance like marijuana is not too much, surely twentyeight years for incestuous child abuse cannot be too much. Thoma’s Third Ground for Relief is
without merit.

Ground Four: Convictions Supported by Insufficient Evidence and Against the Manifest
Weight of the Evidence

In his Fourth Ground for Relief, Thomas asserts his convictions are against the manifest
weight of the evidence and supported by insufficient evidence. Respondent’s defends this claim
on the merits (Return, ECF No. 10, PageID 878).
Petitioner phrases this claim in terms of both insufficient evidence and manifest weight of
the evidence. However, the manifest weight argument does not state a claim under the United
States Constitution and therefore cannot form a basis for habeas relief. Johnson v. Havener, 534
F.2d 1232 (6th Cir. 1986).
In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Supreme Court of Ohio reaffirmed

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the important distinction between appellate review for insufficiency of the evidence and review on
the claim that the conviction is against the manifest weight of the evidence.

It held:

In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law. State v.
Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148.
In addition, a conviction based on legally insufficient evidence
constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31,
45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, (1982), citing
Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560. Although a court of appeals may determine that a judgment of
a trial court is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the weight of the
evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388389, 124 N.E.2d at 149. Weight of the evidence concerns "the
inclination of the greater amount of credible evidence, offered in a
trial, to support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is
not a question of mathematics, but depends on its effect in inducing
belief." (Emphasis added.)
When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the
appellate court sits as a " 'thirteenth juror' " and disagrees with the
factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S.
at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin
(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d
717, 720-721 ("The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new
trial ordered. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.").
78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (Hamilton Cty. 1983)(cited
approvingly by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest
weight of the evidence claim:

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In considering the claim that the conviction was against the manifest
weight of the evidence, the test is much broader. The court,
reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of the witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost
its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. …
Martin, 20 Ohio App. 3d 172, ¶3 of the syllabus.
Insufficiency of the evidence is a valid Fourteenth Amendment due process claim. An
allegation that a verdict was entered upon insufficient evidence states a claim under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

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Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
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And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
Although the two standards are distinct, a state court finding that the verdict is not against
the manifest weight of the evidence implicitly also holds that there is sufficient evidence. Nash v.
Eberlin, 258 Fed. Appx. 761, 2007 U.S. App. LEXIS 29645 (6th Cir. Dec. 14, 2007); Ross v. Miller,
No. 1:10-cv-1185, 2011 U.S. Dist. LEXIS 65082 (N.D. Ohio May 10, 2011)(White, M.J.); Hughes
v. Warden, No. 1:10-cv-091, 2011 U.S. Dist. LEXIS 54131 (S.D. Ohio Apr. 27, 2011)(Merz, M.J.).
While Nash [v. Eberlin, 258 Fed. Appx. 761, 2007 U.S. App. LEXIS
29645 (6th Cir. Dec. 14, 2007)] is not a published opinion of the
Sixth Circuit and therefore not binding precedent, the Magistrate
Judge will follow it and (1) not find any procedural default from
Hughes' limitation of his state court argument to manifest weight,
(2) liberally construe the Petition as making a claim of insufficiency
of the evidence and (3) read the state court of appeals' decision that
the conviction was not against the manifest weight of the evidence
as "necessarily impl[ying] a finding that [Hughes'] conviction was
also supported by sufficient evidence." Id. at 762. See also State
v. Lee, 158 Ohio App. 3d 129, 2004 Ohio 3946, 814 N.E.2d 112,
115 (Ohio App. 9th Dist. 2004), cited in Nash at 765.
Hughes v. Warden, 2011 U.S. Dist. LEXIS 54131(S.D. Ohio Apr. 27, 2011), adopted, 2011 U.S.
Dist. LEXIS 54132 (S.D. Ohio May 20, 2011).
The question in habeas, then, is whether the Twelfth District’s decision on Thoma’s
insufficiency and manifest weight claims is an objectively unreasonable application of Jackson,
supra. Thoma combined those claims in his First Assignment of Error on direct appeal which the

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Twelfth District decided as follows:

Sexual Battery
[*P25] Appellant was convicted of sexual battery in violation of
R.C. 2907.03(A)(5), which provides that "[n]o person shall engage
in sexual conduct with another, not the spouse of the offender, when
* * * [t]he offender is the other person's natural or adoptive parent,
or a stepparent, or guardian, custodian, or person in loco parentis of
the other person." Sexual conduct includes "without privilege to do
so, the insertion, however slight, of any part of the body or any
instrument, apparatus, or other object into the vaginal or anal
opening of another." R.C. 2907.01(A).
[*P26] Appellant argues the state failed to present evidence of
penetration "beyond H.T.'s subjective testimony, and all other
objective evidence points to the opposite conclusion." He contends
that because the medical records from H.T.'s sexual assault
examination did not show abnormalities or injuries, "the medical
report lends credibility to [his] statements that no penetration
occurred."
[*P27] However, after reviewing the record, weighing inferences
and examining the credibility of the witnesses, we find that
appellant's convictions for sexual battery are supported by sufficient
evidence and are not against the manifest weight of the evidence.
The state presented testimony and evidence proving all the essential
elements of the offenses beyond a reasonable doubt. The state
introduced testimony from H.T. that appellant engaged in sexual
conduct by digitally penetrating her vagina in September, October,
November, and December 2015, and in January, February, March,
and April 2016. For all but the September 2015 offense, H.T.
testified appellant entered her bedroom while she was sleeping and
put his fingers into her vagina or touched her "inside her vagina."
As for the September 2015 offense, H.T. explained appellant put his
hands between her legs, inside her shorts and underwear, and put his
fingers into her vagina while she was lying on the floor in the living
room.
[*P28] Contrary to appellant's arguments, H.T.'s testimony is
sufficient, on its own, to establish the element of penetration. "'There
is nothing in the law that requires that a sexual assault victim's
testimony be corroborated as a condition precedent to conviction.'"
State v. Robinson, 2015-Ohio-4533, ¶ 41, 48 N.E.3d 109, quoting
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State v. West, 10th Dist. Franklin No. 06AP-111, 2006-Ohio-6259,
¶ 16. See also State v. Nivens, 10th Dist. Franklin No. 95APA091236, 1996 Ohio App. LEXIS 2245, *6 (May 28, 1996) (holding
that "[e]ven without corroborating medical evidence, a victim's
testimony that the perpetrator placed his penis in her vagina
constitutes penetration"). Further, the medical report was not
inconsistent with H.T.'s testimony. The fact that there were no
injuries or abnormalities found during H.T.'s examination on April
21, 2016, does not mean that appellant did not penetrate H.T.'s
vagina when he sexually assaulted her. It merely indicates that
appellant's assault of the victim in the early morning hours of April
21, 2016, did not cause any lacerations or observable physical harm
to H.T.'s vaginal area.
[*P29] Here, the trial court, as the trier of fact, "was in the best
position to judge the credibility of witnesses and the weight to be
given the evidence." State v. Patterson, 12th Dist. Butler No.
CA2001-09-222, 2002-Ohio-5996, ¶ 12. The court was entitled to
weigh H.T.'s testimony that appellant digitally penetrated her vagina
against the version of events appellant testified to at trial. Though
appellant denied ever penetrating H.T.'s vagina and testified that
there were only three instances in which he inappropriately touched
H.T., with two of those instances being accidental, appellant's April
21, 2016 statement to law enforcement indicated he had been
intentionally touching H.T. inappropriately for "maybe once a week
for the last couple months." Appellant's convictions are not against
the manifest weight of the evidence simply because the trier of fact
believed the testimony and evidence offered by the prosecution. See
State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011Ohio-6529, ¶ 17; State v. Erickson, 12th Dist. Warren No. CA201410-131, 2015-Ohio-2086, ¶ 42.
[*P30] Accordingly, given the evidence presented at trial, we find
that appellant's convictions for sexual battery are supported by
sufficient evidence and are not against the weight of the evidence.
State v. B.J.T., 2017-Ohio-8797 (12th Dist. Dec. 4, 2017).

Sexual Battery

To prevail on his claim as to the sexual battery convictions, Thoma must show that this is
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an objectively unreasonable application of Jackson, supra. To attempt to do so, Thoma asserts:
The State presented no evidence of penetration beyond H.T.’s
subjective testimony, and all the objective evidence points to the
opposite conclusion: that Thoma did not penetrate H.T. as required
to convict him of sexual battery. . . . The only objective evidence of
penetration, or any physical harm, is the medical report conducted a
few hours after the April 21 incident. That report showed no signs
of penetration or other injury. Id. at ¶ 28 (noting that there were “no
injuries or abnormalities found during H.T.’s examination on April
21, 2016”).
(Reply, ECF No. 15, PageID 916-17).
This argument is unpersuasive. First of all, all testimony is, of necessity, subjective. Second
there is no objective evidence at all. The medical report gives the observations of the examiner which
themselves are subjective, i.e., dependent on the observations of the reporting person. Third, the claim
that the “report showed no signs of penetration” is facially true, but it only supports Thoma’s testimony
that there was no penetration if we also know the likelihood that penetration would leave some
observable sign. There is no evidence in the record to that effect, either the trial record or the postconviction record.
The substance of Thoma’s argument is that a victim’s testimony of penetration is insufficient
for conviction. That is not the law in Ohio, as the Twelfth District pointed out, and the federal
Constitution does not require that it be the law.
Thomas argues that no reasonable person could find him guilty on the word of his daughter
alone (Reply, ECF No. 15, PageID 917). This argument fails to account for H.T.’s other testimony of
surrounding facts: the abuse virtually always happened in her bedroom and the early hours of the
morning. Thomas himself, while he doe not admit penetration, admits placing his hand in a location
from which penetration would be a very simple act. And at one point he said H.T. was not making
anything up and apologizing profusely about what happened. Why was it unreasonable for the finder
of fact to credit H.T.’s testimony?

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On the gross sexual imposition counts, the Twelfth District wrote:

Gross Sexual Imposition

[*P31] Appellant was convicted of seven counts of GSI in violation
of R.C. 2907.05(A)(5), which provides that
[n]o person shall have sexual contact with another, not the
spouse of the offender * * * when * * * [t]he ability of the
other person to resist or consent * * * is substantially
impaired because of a mental or physical condition or
because of advanced age, and the offender knows or has
reasonable cause to believe that the ability to resist or
consent of the other person * * * is substantially impaired
because of a mental or physical condition or because of
advanced age.
Sexual contact "means any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock,
public region, or, if the person is a female, a breast, for the purpose
of sexually arousing or gratifying either person." R.C. 2907.01(B).
"[S]leep is a 'mental or physical condition' sufficient to substantially
impair a victim's ability to resist [or consent to] * * * sexual contact
within the meaning of R.C. 2907.05(A)(5)." State v. Porter, 9th Dist.
Medina No. 12CA0061-M, 2013-Ohio-3969, ¶ 19. See also State v.
Coran, 2d Dist. Clark No. 2014-CA-17, 2014-Ohio-4406, ¶ 6, fn. 3.
[*P32] Appellant argues the state failed to prove the sexual arousal
or gratification element of GSI, as the only evidence of sexual
gratification offered by the state was H.T.'s mother's testimony that
on one occasion, she woke up one night to find appellant
masturbating beside her in bed. Appellant argues this testimony is
"irrelevant and unrelated to [his] alleged conduct." Appellant argues
that because H.T.'s mother's testimony is not linked to any specific
date, "there is no evidence that this happened because of [his]
actions concerning H.T."
[*P33] "While an essential element of the offense of gross sexual
imposition is that the act is for the 'purpose of sexual arousal or
gratification,' there is no requirement that there be direct testimony
regarding sexual arousal or gratification." State v. English, 12th
Dist. Butler No. CA2013-03-048, 2014-Ohio-441, ¶ 69. "Whether
the touching was performed for the purpose of sexual arousal or
gratification is a question of fact to be inferred from the type, nature,
and circumstances of the contact." State v. Williams, 12th Dist.
Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 33. In making this
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determination, the trier of fact is "permitted to infer what the
defendant's motivation was in making the physical contact with the
victim." Robinson, 2015-Ohio-4533, ¶ 43, 48 N.E.3d 109. "If the
trier of fact determines that the defendant was motivated by desires
of sexual arousal or gratification, and that the contact occurred, then
the trier of fact may conclude that the object of the defendant's
motivation was achieved." State v. Pence, 12th Dist. Warren No.
CA2012-05-045, 2013-Ohio-1388, ¶ 78.
[*P34] Contrary to appellant's arguments, we find that his
convictions for GSI are supported by sufficient evidence and are not
against the manifest weight of the evidence as the state presented
testimony and evidence proving beyond a reasonable doubt all the
essential elements of GSI, including the sexual arousal or
gratification element. In addition to H.T.'s mother's testimony that
she once woke up in the middle of the night to appellant
masturbating, the state introduced evidence that appellant repeatedly
entered H.T.'s bedroom in the middle of the night while H.T. was
alone and sleeping. Dressed only in his underwear, appellant would
touch H.T.'s buttocks, chest, and vagina while using a cellphone to
see what he was doing. After the first time appellant assaulted H.T.,
he told her she "better not tell anyone that it happened," and months
later, after H.T. informed appellant that she was going disclose the
abuse, he begged her to remain silent. Looking at appellant's
behavior and the type, nature, and circumstances surrounding the
sexual contact, we find that the finder of fact could properly infer
that appellant's motivation in making physical contact with H.T.'s
erogenous zones was sexual arousal or gratification. The finder of
fact was entitled to conclude that there was no innocent or nonsexual
explanation for appellant's conduct. See State v. Goldblum, 2d Dist.
Montgomery No. 25851, 2014-Ohio-5068, ¶ 17; State v. Wilson,
192 Ohio App.3d 189, 2011-Ohio-155, ¶ 47, 948 N.E.2d 515 (11th
Dist.).

State v. B.J.T., 2017-Ohio-8797.
To prevail on his claim as to the gross sexual imposition counts, Thoma must again show
this decision is an objectively unreasonable application of Jackson. In his attempt to do so, Thoma
argues the State had to show the purpose of his touchings of H.T.’s erogenous zones was sexual

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gratification. He claims he “consistently denied any sexual motive 7, and the State had no actual
evidence of sexual motive during the alleged acts.”
The trial judge found Thoma’s denial of sexual intent unpersuasive and the Magistrate Judge
agrees that finding was reasonable. It is completely reasonable to infer from common knowledge of
human behavior that a grown man who repeatedly puts his hand on the pubic region of a teenage girl
and, when confronted, apologizes profusely, had a sexual intent in what he did.
In sum, the Twelfth District’s conclusion that there was sufficient evidence of sexual battery
and gross sexual imposition is a reasonable application of Jackson v. Virginia. Thoma’s Fourth Ground
for Relief should be dismissed on the merits.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is

also recommended that Petitioner be denied a certificate of appealability and that the Court certify
to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to
proceed in forma pauperis.

October 28, 2020.
s/ Michael R. Merz
United States Magistrate Judge

7

Thoma offers no record references for these “consistent denials.” S. D. Ohio Civ. R. 7.2(b)(5) provides: “Pinpoint
Citations. Except for Social Security cases, which must comply with S.D. Ohio Civ. R. 8.1(d), all filings in this
Court that reference a prior filing must provide pinpoint citations to the PageID number in the prior filing being
referenced, along with a brief title and the docket number (ECF No. ___ or Doc. No. ___) of the document referenced.”
If those denials are in the record, they should have been cited. If they are not in the record, the Court cannot consider
them.

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal.

33