COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59191 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ISMAIL B. MUSTAFA : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court CR-245254 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender DAVID W. HILDEBRANDT, ESQ. BY: TIMOTHY P. HAFFEY, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center The Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 1 - HARPER, J.: Defendant-appellant, Ismail Mustafa, was indicted by the Cuyahoga County Grand Jury on November 15, 1989, in a two-count indictment, to wit: Aggravated Burglary (R.C. 2911.11) and Gross Sexual Imposition (R.C. 2907.05). The appellant pled not guilty to both counts at his arraignment on November 11, 1989. Trial by jury commenced on December 19, 1989. On December 21st, the jury returned a verdict of not guilty on the count of Aggravated Burglary and of guilty on the count of Gross Sexual Imposition. The trial court thereafter sentenced the appellant to a term of two (2) years. This appeal followed and for the reasons set forth below, we reverse. I. On October 10, 1989, Y. Ali Faquih ("the victim", d.o.b. 2/1/1977), was asleep in her bedroom at her home which was located at 4356 Danberry Drive, North Olmsted, Ohio. The victim testified that she was sleeping in her bed when the appellant began "touching me and stuff." The appellant said a few words and ran out of the room when the victim woke up and looked at him. The victim was familiar with the appellant whom she referred to as "Pedro." Her familiarity with him stemmed from the fact that he was married to her aunt and he lived about two (2) blocks from the Danberry Drive address. - 2 - She identified the appellant as the man in her bedroom on October 10th. She testified that she was able to identify him because she always kept her bedroom door open, allowing the illumination from the hallway to enter into her room. Ali Faquih is the victim's father. He was in San Francisco on October 10th for a family wedding. The victim's mother was vacationing in Israel at the time. Mr. Faquih testified that the appellant was always at his home, to either eat or drink. However, he testified that the appellant was never given permission to enter the home freely. Amal Ali Faquih is the sister of the victim. She was in charge of the household while her parents were away from home. On October 10, 1989, she was asleep on the couch in the family room of their home when the victim arrived and related the incident in the bedroom to her at approximately 4:45 a.m. The receipt of this information prompted Miss Faquih to telephone the police. Olufat Mustafa is the nephew of the appellant. The appellant resided at his nephew's home located at 4380 Brendan Lane, North Olmsted, Ohio, on October 10, 1989. In the early morning of October 10th, Olufat fell asleep on a couch while he was doing laundry. He was awakened by the noise of appellant opening a door. The appellant complained about his stomach and then went for a walk. Olufat once again fell asleep and was reawakened by another uncle coming into the home. Olufat estimated that all of this occurred between the hours of 4:00 and - 3 - 5:00 a.m. Approximately six (6) to seven (7) minutes after the second uncle's arrival, the police appeared at the house, looking for the appellant. The appellant was asleep in the basement. Detective Wayne Wozniak of the North Olmsted Police Department conducted the interviews of the appellant and other witnesses. According to the detective, the appellant stated that he was with his brother on October 9, 1989. The two of them visited friends and then returned to the Brendan Lane address at about 2:00 a.m. After watching movies until 5:00 a.m., the appellant fell asleep. He remained at the Brendan Lane address until the arrival of the police. II. Appellant, in his first assignment of error, asserts that: "THE TRIAL COURT ERRED WHEN IT IMPROPERLY PERMITTED THE ALLEGED VICTIM TO TESTIFY CONCERNING A PRIOR SEXUAL ADVANCE BY THE APPELLANT WITHOUT FIRST DETERMINING WHETHER THE EVIDENCE WAS MATERIAL TO A FACT AT ISSUE AND WHETHER IT'S [sic] INFLAMMATORY OR PREJUDICIAL NATURE OUT WEIGHED [sic] ITS PROBATIVE VALUE." The victim herein was permitted to testify about a prior meeting with the appellant. Appellant contends that this "other acts" evidence is impermissible pursuant to R.C. 2907.02(D) and (E), State v. Acre (1983), 6 Ohio St. 3d 140 and Evid. R. 403. He thus argues that the introduction of the testimony prejudiced his defense and requires a remand of the case for a new trial. The portion of the victim's testimony to which the appellant refers is as follows: - 4 - "Q. Now, did Pedro ever try to touch you before? "MR. WOCHNA: Objection. "A. Yes. "THE COURT: She can answer that, go ahead. "A. Yes. "Q. Please tell the ladies and gentlemen what happened then? "A. In his old house before we came -- "MR. WOCHNA: Objection. "THE COURT: Overruled, go ahead. "A. I was at his house, he was next door, and I was at his house by his wife and sister. And everybody left, and he was sleeping, he was laying down, and he goes, 'Come here.' And I go, 'No; why?' [sic] And he goes, 'Just come here.' And then I go, 'No.' "And so, I run from the front door to my house." The trial court addressed the jury as follows concerning the testimony: "THE COURT: Okay. Ladies and gentlemen, the Court has permitted you to hear testimony here as to a prior incident between this girl and the defendant. That is not evidence. You may not use that as evidence that he did anything on this particular night. "However, you may consider it, if you do find that he did something. You may consider it as it may shed some evidence in his state of mind and his motive or the reason he may have had for doing whatever he did." Evid. R. 404(B) limits the use of "other acts" evidence and states: "(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, - 5 - opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In a prosecution for Gross Sexual Imposition, R.C. 2907.05(D) further provides in part: "Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim *** and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value." Appellee argues in response to appellant's assignment of error that the victim's testimony was not barred by R.C. 2907.05(D) because she did not relate any prior "sexual activity" as defined in R.C. 2907.01(C). Appellee's argument has merit. R.C. 2907.05(D) allows evidence of a defendant's past sexual activity with the victim and only to the extent that the evidence is material to a fact at issue and its inflammatory and prejudicial nature does not outweigh its probative value. A court must therefore determine 1) if the evidence concerns the defendant and the victim, 2) if it concerns prior sexual activity, 3) if it is material to a fact at issue, and 4) if its inflammatory or prejudicial nature outweighs its probative value. Once the court determines that the evidence does not involve sexual activity, there is no need to address the remaining issues. The court can, however, proceed to analyze the evidence under Evid. R. 404 to determine whether it amounts to "other crimes, wrongs, or acts". Inherent in Evid. R. 404 is the - 6 - premise that this "other" evidence must impermissibly convey the character of the defendant to show that he acted in conformity therewith. In the case sub judice, as stated supra, we must first determine whether the victim's testimony in question constituted "sexual activity". "Sexual activity" means "sexual conduct" or "sexual contact", or both. R.C. 2907.01(C). "Sexual conduct" is defined in R.C. 2907.01 (A) as: "*** vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. " The definition of "sexual contact" is set forth in R.C. 2907.01(B): "(B) 'Sexual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." Contrary to appellant's assertion, the victim did not testify about any prior sexual activity between herself and the appellant. The victim merely testified that the appellant called her to him. She, however, ran out of the house. There was no evidence in the testimony that the appellant ever touched the victim. The jury, therefore, was never presented evidence of appellant's prior sexual activity. The issue now becomes whether the victim's testimony related "other crimes, wrongs or acts". A review of the record reveals - 7 - that the allowance of the victim's testimony prejudiced the appellant although we find that the testimony did not relate "other" evidence. The prejudice commenced when the parties and the trial court treated the victim's testimony as if it related a "prior act". The trial court's raising the testimony to "prior act" testimony is disclosed by reading its instruction on this issue and Evid. R. 404 as set forth previously (see pp. 4-5 of this opinion). It is apparent that it was not necessary to so instruct the jury unless the parties and the court viewed the testimony as requiring the limiting instruction. The court's reference to this meeting as an "incident" ballooned in the minds of the jurors the idea that "something" happened between the appellant and the victim. There is nothing in the victim's testimony to indicate why the appellant was calling her to him. She did not know why the appellant was calling her to him because she left the room. The victim's testimony did not concern a "prior act" but a mere meeting between the victim and the appellant. However, since everyone acted as if it was a "prior act", we find that the prolonged and totally unnecessary emphasis on the testimony influenced the jury to the point that they, too, assumed that the appellant committed a "prior act" on the victim and that he most likely did "something" again. This conclusion is based on the weak testimony presented at trial concerning the appellant's violation of R.C. 2907.05. We are not convinced that the jury would have returned a guilty - 8 - verdict based on the victim's statement, "touching me and stuff" without any elaboration thereon. "Touching me and stuff" does not, in and of itself, amount to a violation of R.C. 2907.05. The only plausible explanation for the jury's verdict, therefore, is the application of significance to and the unwarranted emphasis on the prior meeting between the victim and appellant, and reference to it as an "incident". Appellant proceeds to argue that the trial court improperly admitted the testimony without first holding an in camera hearing as required by R.C. 2907.05(E). The subsection provides: "(E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial." Appellee correctly cites Acre, supra, for the proposition that the requirements of an in camera hearing may be waived if not asserted to the trial court prior to trial, or during trial. Acre, supra, paragraph four of the syllabus./1/\ However, appellee's argument that appellant waived the right to an in camera hearing has no merit. The record fails to disclose that the appellant was aware of this alleged "other acts" evidence prior to the victim's testimony. He was, therefore, incapable of /1/\ State v. Acre (1983), 6 Ohio St. 3d 140, is applicable to the within action for the reason that Acre involved R.C. 2907.02(D), which mirrors R.C. 2907.05(D). - 9 - requesting an in camera hearing until the point where such a request would be meaningless. We find that the trial court erred when it allowed, without hesitation, the prosecutor to question the victim on appellant's previous behavior towards her. R.C. 2905.05(E) mandates that "[p]rior to taking testimony *** of any sexual activity ***, the court shall resolve the admissibility" of the evidence. (Emphasis added.) Appellant's failure to request the hearing prior to trial does not bar his right to one. The statute provides that a hearing is permitted during trial for good cause shown. The trial court's overruling appellant's counsel's objections and its coaching the witness to go ahead with her testimony foreclosed any attempt by appellant to argue good cause for an in camera hearing. Once the prosecutor asked the question and defense counsel objected, the trial court should have resolved the admissibility of the evidence prior to letting the jury hear the victim's testimony. In conclusion, the trial court erred when it permitted the victim to testify about a prior meeting with the appellant without first resolving the admissibility of the evidence. Furthermore, the appellant was prejudiced by the treatment of the victim's testimony as relating a "prior act". Accordingly, appellant's first assignment of error is sustained. III. In his second assignment of error, appellant asserts that: - 10 - "APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE CUMULATIVE EFFECT OF THE TRIAL JUDGE'S INAPPROPRIATE JURY VOIR DIRE AND THE STATE'S VIOLATION OF CRIM. R. 16." Appellant requests that this court examine two errors in the proceedings which, when combined, deprived him of his constitutional right to a fair trial. The first "error" occurred during voir dire. The second "error" resulted from the appellee's alleged violation of Crim. R. 16. The following colloquy took place between the trial court and a prospective juror, a Westlake police officer, during voir dire: "THE COURT: Do you feel that you could be a fair juror in this kind of a case? "MR. CLANCY: While you were talking, I think I may have a problem with the gross sexual imposition. The aggravated burglary, I don't think I would have a problem with. But I'm not so sure on the other case. I am trying to remember if we do have something going on in our Department, either the same name or a familiar name has been coming across my mind. "THE COURT: You think you know something about "MR. CLANCY: There might be. The name just keeps coming up, it just clicked. So, there maybe a problem there, and I would rather not serve. "THE COURT: You would rather not serve on this "MR. CLANCY: I would want him to get a fair trial." Appellant proffers that Mr. Clancy left the jury with the impression that the appellant "has either committed or been convicted of other sex crimes or is under investigation." The - 11 - trial court gave the following curative instruction in response to appellant's motion for mistrial. "THE COURT: Ladies and gentlemen, we had talked a few minutes ago with Mr. Clancy, who was asked to be excused. I think he indicated, that the name of Mustafa was the last name of the defendant in this case, and it sounded familiar to him. I have been asked to inform you, that Mr. Mustafa is not under investigation, and has not been under investigation or is being charged with anything else, except for what he is in trial for in this case. "I think these names, people get arrested, and I think the names go over some type of teletype, and they go out widely in the community. So certain facts about this, might come out, I guess, information that is on file, might go out to other people. The names will go out. But this should have no affect [sic] on you. "Is there anybody here who has affected [sic] in any way Mr. Clancy had to say? "THE JURORS: No. " Appellant then submits that the appellee "intentionally withheld evidence" of similar acts of the appellant. He argues that the evidence was properly discoverable and if it had been provided to appellant, it would have "materially effected [sic] the defense strategy." Appellant focuses on the following request in its motion for discovery as covering other acts evidence: "All evidence known or which may become known to the prosecuting attorney favorable to the defendant and material either to guilt or punishment." The cumulative effect of evidentiary errors may deprive a defendant of the constitutional right to a fair trial even though the errors, singularly, do not amount to prejudicial error. State v. DeMarco (1987), 31 Ohio St. 3d 191, paragraph two of the - 12 - syllabus; State v. Hill (June 1, 1989), Cuyahoga App. No. 55364, unreported. See, also, State v. Hicks (Aug. 18, 1988), Cuyahoga App. No. 54219, unreported. Appellant's assertion that he was entitled to other acts evidence pursuant to Crim. R. 16 is not supported by that rule. Crim. R. 16(B)(1)(f) provides that evidence favorable to a defendant is subject to disclosure. As this evidence was neither of "other acts" nor favorable to appellant, it does not fall within the rule. However, the trial court's curative instruction to the jury in response to the prospective juror's statements does not remedy the clearly prejudicial statements. Mr. Clancy could not explain the source of his suspicions about knowing of or about the appellant. The trial court's attempt to explain through its instruction which contained "I think", and "I guess" was just as lacking in satisfactory explanation. The jury was, therefore, permitted to freely imagine the source and the contents of the information known by Mr. Clancy. Whether or not the cumulative effect of evidentiary errors, the allowance of the prospective jurors' statements and the alleged violation of Crim. R. 16, is not relevant in this case. The prospective juror's statements and the trial court's instruction alone denied the appellant his constitutional right to a fair trial. Appellant's second assignment of error is sustained. Judgment reversed. - 13 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, P.J., CONCURS; J.F. CORRIGAN, J., CONCURS IN JUDGMENT ONLY. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .