NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0314n.06
                                                                                         FILED
                                           No. 10-3182
                                                                                     Mar 21, 2012
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

ERIC COOK,                                       )
                                                 )       ON APPEAL FROM THE
       Petitioner - Appellant,                   )       UNITED STATES DISTRICT
                                                 )       COURT FOR THE NORTHERN
v.                                               )       DISTRICT OF OHIO
                                                 )
KEITH SMITH, Warden                              )       OPINION
                                                 )
      Respondent - Appellee.                     )
______________________________                   )

Before: SILER, ROGERS, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Petitioner-Appellant Eric Cook appeals the judgment

of the district court denying his petition for a writ of habeas corpus. We AFFIRM.

                                                I.

       On November 23, 2003, Petitioner Cook was working as a nursing assistant at Parma

Community General Hospital (“PCGH”). Around four a.m., Marlene Taylor, a patient in the skilled-

nursing unit at PCGH, soiled herself and required assistance. Cook, the primary care nurse’s

assistant (“PCNA”) assigned to Taylor, responded and cleaned Taylor. About twenty minutes later,

Taylor again soiled herself; this time, nursing assistant Pamela Peoples responded because Cook was

busy with another patient. Peoples testified that as she was cleaning Taylor, Cook walked in, and

Taylor became “hysterical,” screaming for Cook to get out. According to Peoples, Cook then

stepped closer to Taylor’s bed and appeared aggressive, at which point Taylor stopped talking.
Peoples informed her supervisor.       Don Dietzeel, the R.N. assigned to Taylor, overheard a

conversation about the incident and confirmed with Taylor that she did not want Cook in her room.

       Around noon, Taylor’s daughter, Georgia Gassi, visited and noticed that her mother had not

eaten her lunch and appeared “real edgy” and “nervous.” Gassi asked her mother what was wrong,

and Taylor responded that a male nurse had inserted a finger into her vagina as he cleaned her. Gassi

informed the attending nurse, Diane Placko, who in turn contacted the supervising nurse that day,

Doris Schoenbeck. Schoenbeck testified that Taylor told her that Cook had been “rough when

cleaning her during the night” and that Cook “had put his finger in her vagina while cleaning her up.”

Schoenbeck documented the incident; informed Cook that he could not return to work; and, since

PCGH is a mandatory reporter, reported Taylor’s allegations to the police.1

       Officer Tom Desmarteau responded to the complaint. He testified that Taylor repeated her

allegations against Cook to him and that Taylor seemed upset, embarrassed, angry, and “very

concerned as to what took place.” Detective Daniel Ciryak took over the investigation and

interviewed Cook on November 28, 2003. In a signed statement, Cook stated that he did not know

why Taylor yelled at him, but that he heard that Taylor had complained that he had cleaned her

between her private area and her buttocks too hard. Cook confirmed that he had cleaned Taylor on

the night in question. He asserted that although there was fecal matter in her vaginal area, he did not

open her vagina – or insert a finger into her vagina – because the fecal matter was only on top of her

vagina. Cook’s story changed, however. Captain Robert DeSimone interviewed Cook a second


       1
         The prosecution also called Carolyn Homola, an eighty-two-year-old woman who testified
that Cook, while working at a different nursing facility in 1997, penetrated her vagina with his finger
as he bathed her. Defense counsel objected to this testimony as impermissible “other acts” evidence,
Fed. R. Evid. 404(b), but the trial court allowed the evidence. Cook does not contest this ruling in
this appeal.

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time, and took a statement, signed by Cook, in which Cook explicitly recanted his previous statement

that he had not inserted a finger into Taylor’s vagina. Cook disclosed that he had inserted three to

four fingers wrapped in pericare cloth about a quarter of an inch into Taylor’s vaginal canal area

while he was cleaning her. Cook stated that this method of cleaning was approved by PCGH.

       On July 7, 2004, the Cuyahoga County Grand Jury returned an indictment charging Cook

with one count of rape and one count of patient abuse. Ohio Rev. Code Ann. §§2907.02, 2903.34.

Cook pleaded not guilty and elected to be tried by a jury. Taylor died prior to the trial, and Cook

filed a motion asserting that the admission of Taylor’s hearsay statements would violate his

constitutional right to confront witnesses against him. The trial court denied Cook’s motion. At

trial, Cook’s counsel continued to object, but the court allowed Gassi, Schoenbeck, and Desmarteau

to testify about Taylor’s statements.

       The jury convicted Cook on both counts. The trial court found Cook to be a sexual predator

and sentenced him to eight years’ incarceration for the rape conviction and six months’ incarceration

for the patient-abuse conviction, to be served concurrently. Cook timely appealed to the Ohio Court

of Appeals, raising several issues, including the two he presses here. The Ohio Court of Appeals

affirmed, and Cook sought review by the Ohio Supreme Court, which summarily dismissed his case

as raising no substantial constitutional question.

       Cook then filed a petition for habeas corpus in the Northern District of Ohio, asserting two

grounds for relief: (1) Cook’s Sixth and Fourteenth Amendment rights to confront the witnesses

against him were violated when hearsay testimonial statements of a deceased witness were used

against him; and (2) the state failed to present sufficient evidence to prove all elements of rape

beyond a reasonable doubt, in violation of Cook’s Fifth and Fourteenth Amendment due process


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rights. The parties consented to having the matter decided by a magistrate judge, who denied Cook’s

petition and also denied a certificate of appealability. Cook sought to appeal, and we granted a

certificate of appealability.

                                                 II.

        In a federal habeas appeal, this court reviews legal conclusions and mixed questions of fact

and law de novo and factual findings for clear error. Ruelas v. Wolfenbarger, 

, 408 (6th

Cir. 2009) (citation omitted). Under AEDPA, a federal court may grant habeas relief only if the state

court’s judgment:

        (1) resulted in a decision that was contrary to, or involved an unreasonable
        application of, clearly established Federal law, as determined by the Supreme Court
        of the United States; or

        (2) resulted in a decision that was based upon an unreasonable determination of the
        facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Harrington v. Richter, 

, 783-84 (2011). A decision is

“contrary to” federal law if the state court reaches an opposite conclusion than the Supreme Court

on a question of law or decides a case differently on a set of materially indistinguishable facts.

Stallings v. Bobby, 

, 580-81 (6th Cir. 2006) (citation omitted). A state court

unreasonably applies federal law if the court identifies the governing legal principle, but

unreasonably applies that principle to the facts. 

contends that Officer Desmarteau’s testimony about statements Taylor made during

the investigation violated his Sixth Amendment right to confront witnesses against him. Crawford

v. Washington, 

, 69 (2004).         Since the Warden does not dispute that Officer



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Desmarteau’s testimony violated the Confrontation Clause, the only issue is whether the violation

was harmless. See Vasquez v. Jones, 

, 574 (6th Cir. 2007) (“Confrontation Clause

errors are subject to harmless-error analysis.”) (internal citation omitted). Harmless-error review

inquires whether the constitutional violation “had a substantial and injurious effect or influence in

determining the jury’s verdict.” 

(quoting Brecht v. Abrahamson, 

, 623 (1993)). Our review is guided by the Van Arsdall factors. Delaware v. Van Arsdall, 

(1986). Courts consider “the importance of the witness’[s] testimony in the prosecution’s

case, whether the testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, . . . and, of course, the overall strength

of the prosecution’s case.” 

Neither side has the burden of proving the error is harmless,

and when the matter is so evenly balanced that we have “grave doubt” about whether the error had

an effect on the jury’s verdict, the error is not harmless. Fulcher v. Motley, 

, 809 (6th

Cir. 2006) (citation and quotation marks omitted). The Ohio Court of Appeals and the magistrate

judge both concluded that the Confrontation Clause violation was harmless. We agree.2

        Taylor’s hearsay statements admitted through the testimony of Officer Desmarteau were

cumulative and added nothing to the statements introduced through other witnesses, the admission

of which are not challenged here.3 Schoenbeck and Gassi both testified that Taylor told them Cook

penetrated her vagina while he was cleaning her, and Schoenbeck read the medical records

documenting Taylor’s allegation. The truth of the hearsay statement to which Officer Desmarteau


        2
     The Ohio Court of Appeals’ harmless error decision is itself entitled to deference under
AEDPA.
        3
       Although he did so in the state appeals court, in this appeal Cook does not challenge the
admission of Gassi’s and Schoenbeck’s testimony regarding Taylor’s statements.

                                                   5
testified is not seriously in dispute: Captain DeSimone read Cook’s statement that he did penetrate

Taylor’s vaginal canal.

       Cook contends that in Fulcher the evidence was even stronger than the evidence here, and

yet this court granted habeas 

. In Fulcher, the court evaluated the evidence

against the defendant without the testimonial statements and found the remaining evidence was very

suspect, noting that, apart from the statements that violated the Confrontation Clause, “all of the

remaining witnesses had a motive to lie.” 

Here, the remaining witnesses against Cook

had no motive to lie, and Cook’s reliance on Fulcher is misplaced. We are satisfied that

Desmarteau’s hearsay testimony had little, if any, effect on the verdict.           Accordingly, the

Confrontation Clause violation was harmless.

                                                 IV.

       Cook next contends that the prosecution did not present sufficient evidence of the elements

of rape under Ohio law, and therefore the conviction violates due process. U.S. Const. amend. V,

XIV. A federal court reviewing a habeas petition based on insufficiency of the evidence proceeds

in two steps. First, without reweighing the evidence or substituting its judgment for that of the jury,

the court must determine whether, “viewing the 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.” Brown v. Konteh, 

, 205 (6th Cir. 2009) (quoting Jackson

v. Virginia, 

, 319 (1979)) (emphasis in original). Second, even if the court finds that

no rational jury could have convicted the defendant, the habeas court must “still defer to the state

appellate court’s sufficiency determination as long as it is not unreasonable.” 

and emphasis in original); see also Pordash v. Hudson, 388 F. App’x 466, 467 (6th Cir. 2010).


                                                  6
        Cook contends that the prosecution did not prove the element of force or threat of force.

O.R.C. § 2907.02(A)(2) makes it illegal for a person to “engage in sexual conduct with another when

the offender purposely compels the other person to submit by force or threat of force.” Force need

not be “overt or physically brutal” and can be established by showing that “the rape victim’s will was

overcome by fear or duress.” State v. Eskridge, 

, 306 (Ohio 1988) (citation omitted);

State v. Arias, No. 04CA008428, 

, at *31-32 (Ohio Ct. App. Aug. 25, 2004). In the

absence of physical force, force is established if the defendant “creates the belief that physical force

will be used if the victim does not submit.” State v. Schaim, 

, 665 (Ohio 1992); see

also State v. Rupp, No. 05MA166, 

, at *30 (Ohio Ct. App. Mar. 27, 2007); Pordash,

388 F. App’x at 468. A “threat of force can be inferred from the circumstances surrounding the

sexual conduct.” 

.

        The Ohio Court of Appeals found that Taylor’s age and infirmity, and Cook’s status as

caregiver, supported an inference of a threat of force and, therefore, the prosecution had submitted

sufficient evidence of force; the magistrate judge agreed. Cook complains that this holding is based

almost exclusively on statements made in 

, a case in which a father raped his four-

year-old daughter. Eskridge creates an “almost automatic finding of force or threat of force” in the

context of child-rape cases, based on a child’s age and strength, as well as an adult’s authority. See,

e.g., Rupp, 

at *31. The Ohio Supreme Court limited the rationale of Eskridge in

Schaim: “State v. Eskridge is based solely on the recognition of the amount of control that parents

have over their children, particularly young children.” 

; cf. State v. Dye,

, 766 (Ohio 1998) (“[W]e recognized Eskridge’s continuing application in cases

involving young children.”).


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        The Warden concedes that the prosecution was required to make some showing that during

the incident, Cook overcame Taylor’s will by fear or duress: “In order for a defendant to overcome

his victim’s will by fear or duress, the defendant would have had to engage in sufficient behavior

toward the victim.” Rupp, 

, at *41; Pordash, 388 F. App’x at 468. Cook argues that

there was no evidence that he used physical force or engaged in conduct while he was cleaning

Taylor that would have overcome her will by fear or duress. Ohio courts look at the “totality of facts

and circumstances existing at the time of the alleged rape.” Rupp, 

, at *41. Here,

there was very little testimony regarding the facts and circumstances surrounding Cook’s conduct

during the cleaning incident. There was testimony, however, that Taylor reported to Schoenbeck that

Cook had been rough with her when he was cleaning her and that he had put his fingers in her vagina

while cleaning her. This testimony, taken together with Cook’s aggressive manner with Taylor,

which led to her silence after being hysterical, could reasonably be seen as sufficient to establish that

Cook achieved penetration of Taylor by being rough with her and overcoming her will by fear.

        In order for a habeas petitioner to be entitled to relief, a state-court decision must not only

be erroneous, but also objectively unreasonable. In Davis v. Lafler, the en banc Sixth Circuit

explained that a state court’s decision in a federal habeas sufficiency-of-the-evidence challenge

receives “double deference” – first, deference to the jury’s verdict, and second, deference to the state

court’s consideration of the verdict. 

, 531-35 (6th Cir. 2011). Thus, in a sufficiency

challenge, this court must stay its hand unless the state-court decision is “far out of line with the very

general standard set forth in Jackson v. Virginia.” 

        There are no Ohio cases addressing the proofs required to establish the element of “force or

threat of force” or the inferences permitted in judging whether a victim’s will was overcome by fear


                                                    8
or duress in the context of a caretaker’s sexual assault of an elderly and infirm victim. Considering

the uncertainty in Ohio law regarding the permissible inferences in such cases, the presence of some

testimony at trial that could support the required finding, and our limited review under AEDPA, we

cannot say that the Ohio Court of Appeals’ sufficiency determination is so far out of line that it is

objectively unreasonable. Accordingly, although we are troubled by the dearth of evidence

presented, we must reject Cook’s due-process claim and AFFIRM the denial of the writ.

                                                 V.

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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