COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59365 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JAMES E. CORNELL : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-243565 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 2000 Standard Building A. STEVEN DEVER, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: I. Appellant, James Edward Cornell, was indicted by the Cuyahoga County Grand Jury on September 14, 1989, on a thirteen count indictment, to wit: three counts of rape, in violation of R.C. 2907.02, and ten counts of gross sexual imposition, in violation of R.C. 2907.05. One count of rape was amended to a lesser included offense of gross sexual imposition. The trial was by a jury. Appellant was convicted on January 19, 1990, on two counts of rape and eleven counts of gross sexual imposition. On January 19, 1990, appellant was sentenced to life imprisonment on the rape charges. Appellant was sentenced to a minimum term of four years and a maximum term of ten years in jail on the gross sexual imposition charges. Appellant's rape and gross sexual imposition sentences were to be served consecutively. Appellant appeals as of right. For the reasons that follow, we affirm. II. Glen Bragg testified that he was born July 27, 1976. He testified that he often spent the night at the home of James Cornell. He would sleep in the same bed as Mr. Cornell. When he would get into bed, Mr. Cornell would ask him to take off his pajamas. Mr. Cornell would rub on Glen's penis and would demand that Glen do the same to him. Glen was seven years old at the - 2 - time. Glen testified that when the penis rubbing started, all they did was "nothing more than touching". At the time, Mr. Cornell was the manager of the apartment building where Glen and his mother were tenants. Glen and his mother lived in the basement. Mr. Cornell lived on the first floor. Glen testified that he continued this type of activity with Mr. Cornell until 1988. Glen denied that he ever engaged in oral sex with Mr. Cornell. He stated that he never told anyone about what went on between him and Mr. Cornell because he was afraid. He testified that Mr. Cornell often rewarded him with money, candy and toys. Glen admitted that he had an argument with his mother in 1989. He ran away after the argument, and lived with Mr. Cornell. He went to Mr. Cornell because he had no better place to go. Glen testified that Mr. Cornell has a brother by the name of Charles. Charles Cornell was Glen's mother's boyfriend. Charles Cornell lived with Glen, his mother Lucy, and two other brothers. Glen testified that Mr. Cornell had been having problems with his brother Charles. Charles liked to drink and had been having problems with Lucy Bragg as well. Glen testified that he went to see Mr. Cornell at his home. He admitted to Mr. Cornell that he told lies about their alleged sexual activities. His confessions were taped. He knew when he was confessing to Mr. Cornell that he was being tape recorded. He stated that Mr. Cornell told him what to say while he was being recorded. According to Glen, Mr. Cornell would push the - 3 - pause button, and instruct him on what to say, and then push the record button. The process was continued until the recording was finished. Glen testified that Joyce Pragger, Mr. Cornell's sister, was present when the tape recording was made. He stated that Joyce also told him to make those statements. When asked by the court why he would make a statement admitting his prior accusations were false, Glen replied, "I don't know. He just told me to say it, so I said it." Kenneth Bragg testified that he was seventeen years old. He met Mr. Cornell when he was nine years old. He often spent time in Mr. Cornell's apartment. He testified that every time he visited Mr. Cornell, they both played with each other's penis. He refused to tell anyone for fear that no one would believe him. Kenneth testified that he did not know that what he was doing with Mr. Cornell was wrong until his brothers revealed their relationship with Mr. Cornell to their mother. Kenneth, when confronted by his mother, denied the allegations, but later admitted that he had been playing with his brother Michael in the same manner that he played with Mr. Cornell. He denied being forced by Mr. Cornell to engage in any of the activities. The activities started when Kenneth was nine years old. He testified that Mr. Cornell rewarded him with gifts and toys. He testified that he "caught" Mr. Cornell and his brother, Michael, in Mr. Cornell's bedroom. He described Mr. Cornell as "breathing hard - 4 - and sweaty". Kenneth testified that his last encounter with Mr. Cornell occurred when he was sixteen years old. Michael Bragg testified that he was eleven years old. He remembered asking his mother if he could spend a night at Mr. Cornell's apartment. Michael usually slept on the couch or in the room with one of his brothers. Mr. Cornell would ask him to come into his room during the night. The two then began to play with each other's genitalia. The two often engaged in oral sex as well. Michael testified that Mr. Cornell would masturbate until ejaculation after they had engaged in the "act" for a while. Michael stated that he did not like Mr. Cornell. Mr. Cornell always got mad at him so he did not consider him to be a friend. He resented what Mr. Cornell had done to him. Michael testified that Mr. Cornell gave him an allowance of two dollars every two weeks. Mr. Cornell would pick him up and lay him on the bed. Mr. Cornell never told Michael to keep what went on between them secret. He did not know that what he was doing was wrong until he talked to his mother. Michael testified that he was angry during these incidents and was afraid of Mr. Cornell. Lucy Bragg testified that she is the mother of Michael, Kenneth and Glen Bragg. She testified that she had lived with Mr. Cornell's brother, Charles, for four or five years prior to the year of trial. She had known Mr. Cornell since 1983. Mrs. Bragg stated that Mr. Cornell has a daughter, Jennifer, who was - 5 - the same age as her boys. The boys spent time with Mr. Cornell and his daughter. Mrs. Bragg was made aware of the allegations by her son, Michael. Mrs. Bragg testified that Michael told her that Mr. Cornell had been engaging in sexual activities with him and his brothers. She confronted her two sons with Michael's allegation. They denied it. Mrs. Bragg testified that she was afraid to do anything when Michael broke the story. Charles, who learned about the incident, confronted Mr. Cornell with it when the two were arguing over a check. Mr. Cornell denied the accusation. At that point, Glen came forward and admitted that Mr. Cornell did engage in a sexual relationship with him. Mrs. Bragg called the authorities to investigate the matter after Glen admitted to the allegations. Meghan Hickey testified that she worked with the sexual abuse unit of the Department of Human Services. She received a hot line referral on the case on January 4, 1989. She began to investigate the case thereafter. She interviewed the boys. She testified that the boys admitted to her that they had engaged in sexual activities with Mr. Cornell. She stated that Michael admitted having oral sex with Mr. Cornell. "Glen admitted to mutual masturbation, while Kenneth denied that any sexual abuse occurred." James Hamm testified that he was twenty-five years old. He stated that he had engaged in sexual activities with Mr. Cornell from the age of thirteen until he was fifteen years old. He - 6 - testified that Mr. Cornell stopped the relationship when he became sixteen years of age. James stated that he had not told of their affair to anybody because he was too embarrassed to talk about it. Mr. Cornell gave him five to twenty-five dollars each time they engaged in a sexual activity. James testified that Mr. Cornell told him not to tell anyone. James testified that he had served four months in jail for going on AWOL while in the Navy. He admitted to using marijuana and LSD and almost overdosed at the age of thirteen. He did not tell anybody in the Navy about his past relationship with Mr. Cornell. Charles Cornell testified that he came to Cleveland in 1979. He lived with his brother, Mr. Cornell, when he came to Cleveland. He learned about his brother's activities with the Bragg boys in February of 1989. He moved out of his brother's residence after he learned of the incidents. He testified that he believed that Mr. Cornell and their sister, Joyce, opened his mail. He fought with his brother, Mr. Cornell, over the mail incident in January, 1989. Charles testified that someone confronted Mr. Cornell with the allegation of sexual activities with the Braggs. Glen confirmed that the allegations against Mr. Cornell were true. Charles acknowledged that he had always had problems with his brother. He testified that Michael first told him about the incident with his brother in December, 1988. He then related the story to Lucy Bragg a few weeks later. - 7 - Joann Jackson testified that she is a doctor with Metro Health Center. Dr. Jackson testified that she examined Michael on January 30, 1989, and Kenneth on April 1st or 2nd, 1989. The examinations did not reveal any physical evidence of sexual abuse. Dr. Jackson explained that physical abuse is not normally found when the abuse consists only of fondling. Dr. Jackson testified that Kenneth told her that he had engaged in sexual contact with Mr. Cornell for more than four years, on a weekly basis. Glen denied engaging in any oral contact, but admitted occasional penile contact. James Cornell testified on his own behalf. He denied having any sexual relations with the Bragg boys. He got along well with Lucy Bragg. Mr. Cornell's relationship with Mrs. Bragg changed when his brother, Charles, started dating Mrs. Bragg. Mr. Cornell testified that he considered Mrs. Bragg's children nephews and gave them free access to his home. He testified that he never got along with his brother and that his brother was an alcoholic. He stated that the Bragg boys and James stayed in a spare bed in his room when they slept over. He denied giving anybody an allowance, but admitted buying them tickets to attend a drive-in or to take a bus home. It was his belief that the children were manipulated by Charles. III. Appellant's assignments of error are as follows: "I. THE EVIDENCE IS CONSTITUTIONALLY INSUFFICIENT TO PROVE THE ELEMENT OF FORCE PURSUANT TO R.C. 2907.02(B). - 8 - "II. THE TRIAL COURT ERRED BY ALLOWING A SOCIAL WORKER TO GIVE HER OPINION OF THE VERACITY OF THE STATEMENTS OF A CHILD DECLARANT THROUGH INNUENDO. "III. THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL OTHER ACTS EVIDENCE AND OPINION TESTIMONY TO BE HEARD BY THE JURY. "IV. THE TRIAL COURT ERRED BY ALLOWING EVIDENCE OF AN ALLEGED VICTIM'S CURRENT BI-SEXUALITY FOR JURY CONSIDERATION." Appellant, in his first assignment of error, argues that the evidence was insufficient to convict him of rape pursuant to R.C. 2907.02(B). Specifically, appellant argues that the state did not prove the element of force beyond a reasonable doubt, therefore, his sentence for life was based on insufficient evidence. Appellant argues that without a showing of force, or coercion in the case of a child, a life term imprisonment pursuant to R.C. 2907.02(B) cannot lie. R.C. 2907.02(A)(1)(b) reads in pertinent part: "(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when either of the following apply: "*** "(b) The other person is less than thirteen years of age, whether or not the offender knows the age of such person. "(2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. "(B) Whoever violates this section is guilty of rape, an aggravated felony of the first degree. If the offender under division (A)(1)(b) of this section purposely compels the victim to submit by force or - 9 - threat of force, whoever violates division (A)(1)(b) of this section shall be imprisoned for life." In order for a criminal conviction to lie in any juris- diction of this nation, the prosecution must comply with the mandates of due process. The State of Ohio's due process mandate is codified in R.C. 2901.05, which reads in pertinent part: "(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution." The language of R.C. 2901.05 is plain on its face and courts have interpreted it so. An accused in a state criminal prosecution has a constitutional right to expect that all facts necessary for his conviction will be established by proof beyond a reasonable doubt. State v. Brown (1982), 7 Ohio App. 3d 113; State v. Martin (1986), 21 Ohio St. 3d 91; State v. Robinson (1976), 47 Ohio St. 2d 108; In re Winship (1970), 397 U.S. 358. This court, in a review of a criminal conviction, is required to view the record in a light most favorable to the prosecution and determine whether reasonable minds could have found each material element of an offense was proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307; State v. Stone (Mar. 21, 1991), Cuyahoga App. No. 58112, unreported. Appellant argues that the element of force necessary to sentence him to life imprisonment was not established. The state sought a life sentence because of the encounters between appellant and Michael Bragg, whom at the time of the incident was nine years old. It necessarily follows that the state must - 10 - sustain the charge for a life sentence by proving that appellant used "force or threat of force" in his sexual encounter with Michael. R.C. 2901.01 defines "force" as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." "The key in determining a forcible element is whether the victim's will was overcome by fear or duress." State v. Mitchell (June 12, 1991), Cuyahoga App. No. 58447, unreported; State v. Martin (1946), 77 Ohio App. 553. See also State v. Davis (1983), 6 Ohio St. 3d 91. It has been recognized in Ohio that facts necessary to prove force is liberalized in an adult to child encounter because of the inherent coercion that can be found in an adult's relationship with a child. State v. Lee (Aug. 11, 1983), Cuyahoga App. No. 45803, unreported; State v. Mitchell, supra; State v. Eskridge (1988), 38 Ohio St. 3d 56. However, as this court stated in Mitchell, supra, "the state must prove beyond a reasonable doubt that force, threat of force or some form of coercion was used, even if it is by the circumstances of the case." In the within case, Michael Bragg testified that appellant would pick him up and lay him on the bed. Appellant would ask him to take his clothes off and suck on his penis. Michael Bragg testified that appellant never asked him not to tell anyone. When asked why he never told anyone, he said, "I don't know, I was just scared of him." When Michael was asked why he did not tell his brothers, he indicated that he did not want his brothers to laugh at him, or think that he was making up - 11 - the story. The Eskridge court held that: "As long as it can be shown that the rape victim's will was overcome by fear and duress, the forcible element of rape can be established." The Eskridge court continued, "In the within case, we are confronted with a child being told to do something by an important figure of authority, and commanded not to tell anyone about it. In such a case, we find nothing unreasonable about a finding that the child's will was overcome." The record in the within case is devoid of any one single act standing by itself which constituted force. However, fear and duress can be affirmatively shown by the totality of the circumstances to demonstrate that the victim's will was overcome in a child rape conviction. In Eskridge, a father's penetration of his four-year-old daughter and his warning to her not to tell anyone was more than sufficient to overcome her will. In the within case, Michael Bragg did not have the father/son relationship with appellant. However, there was a landlord/tenant relationship which carries with it some authority that can easily be misconstrued by a child of Michael's age. Michael, who was nine years old, knew Mr. Cornell as his apartment manager and an authority figure. Mr. Cornell also had a physical advantage over Michael, and the act of picking him up and laying him on the bed was an act of compulsion and restraint. Michael had witnessed several violent confrontations between Mr. Cornell and Mr. Cornell's brother, Charles, and testified that he was afraid of Mr. Cornell. Michael's - 12 - indulgence in sexual activities with appellant was a result of an inducement made by a thoughtless evil man to a helpless child. Therefore, from the totality of the circumstances in the case sub judice, we find nothing unreasonable about a finding that Michael's will was overcome, thereby making the force element present. Force can be physical and brutal, but it can also be subtle and psychological. The court focused on the offender's behavior, and not the victim's. This court is not holding that all confrontations between a child and an adult automatically constitute force, just that the circumstances in the within case compels us to so hold. Appellant's sentence of life imprisonment must stand and his first assignment of error is overruled. IV. Appellant, in his second assignment of error, argues that the trial court erred in permitting a social worker to give her opinion of the veracity of the child declarant through innuendo. Appellant's contention is based on the testimony by Morgan Hickey of the Cuyahoga County Department of Social Services. The following colloquy occurred during the questioning of Ms. Hickey: "Q. For what purpose did you interview Michael? "A. To determine if he was sexually abused if there was any validity to the allegation. "MR. WEBSTER: Objection. "THE COURT: Overruled." Appellant argues that Ms. Hickey's testimony is tantamount to vouching for the "victim's credibility". Appellant cites State - 13 - v. Boston (1989), 46 Ohio St. 3d 108, as controlling. In Boston, supra, the trial court admitted the testimony of an expert who testified of the veracity of the child declarant. The Boston court continued: "Thus, it follows that an expert's opinion testimony on whether there was sexual abuse would aid jurors in making their decision and is, therefore, admissible pursuant to Evid. R. 702 and 704. Dr. Asch's opinion testimony that Cynthia was sexually abused was properly admitted." Id., at 128. Thus, the problem that the Boston court had with the expert testimony was, therefore, not whether the expert can testify as to her purpose of interviewing a child victim, but whether the expert can express her opinion that the child was telling the truth. "Dr. Asch was also allowed to express her opinion that Cynthia had not fantasized her abuse and that Cynthia had not been programmed to make accusations against her father. With this testimony, Dr. Asch, in effect, declared that Cynthia was truthful in her statements. "We have little difficulty in finding that the admission of this testimony was not only improper--it was egregious, prejudicial and constitutes reversible error." Boston, at 128. In the within case, Ms. Hickey's testimony was not to show that Michael told the truth but was an expression of what her job assignment was in the Department of Human Services. It was proper. In light of the overwhelming evidence on the record, Ms. Hickey's testimony could not have played any significant part in appellant's conviction. See Chapman v. California (1967), 386 - 14 - U.S. 18; Harrington v. California (1969), 395 U.S. 250. We hold that the state produced sufficient evidence which would enable a rational trier of fact to find appellant guilty without the testimony of Ms. Hickey. Appellant's second assignment of error is overruled. V. Appellant, in his third assignment of error, argues that the trial court erred by admitting evidence of other acts. Appellant specifically challenges the testimony of Mr. Hamm, who testified that appellant had engaged in sexual activities with him while he was under sixteen years of age. Evid. R. 404(B) 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, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evid. R. 404(B) does not prohibit introduction of other acts testimony provided it is not introduced to show that a defendant has a propensity for crime or that his character is in conformity with other acts. State v. Williams (1988), 38 Ohio St. 3d 346; State v. Adams (1978), 53 Ohio St. 2d 223. The state argues that the testimony of other acts was material in establishing appellant's pattern of conduct, to wit: his attraction to boys under the age of sixteen. R.C. 2945.59 reads: "Proof of defendant's motive. - 15 - "In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant." R.C. 2945.59 must be strictly construed against the state. State v. Strong (1963), 119 Ohio App. 31. Other acts evidence is admissible, not because it shows that the defendant is crime prone, or that he has committed an offense similar to the one in question, but in spite of such facts. State v. Burson (1974), 38 Ohio St. 2d 157. In the within case, the testimony of Mr. Hamm was introduced to show that appellant had a scheme of luring boys under the age of sixteen, with promises of gifts and allowances, with the intent of engaging in sexual activities with them. The trial court in the within case acted properly by holding an "in camera" hearing on the admissibility of Mr. Hamm's "other acts" testimony, State v. Gardner (1979), 59 Ohio St. 2d 14, and the jury was properly instructed on its use of the evidence. We hold that other acts evidence was properly admitted and that its probative value was not substantially outweighed by the danger of unfair prejudice to appellant. See Evid. R. 403(A). Appellant's third assignment of error is overruled. - 16 - VI. Appellant, in his fourth assignment of error, agues that the trial court erred by allowing Mr. Hamm's testimony of his bisexuality to be considered by the jury. The state argues that appellant's attorney opened the door to this line of questioning by examining Mr. Hamm of his drug use and psychiatric history. We disagree. Mr. Hamm's sexual preference was irrelevant to the trial of appellant, and appellant's counsel's inquiry to Mr. Hamm's drug use did not and should not open the door to admitting Mr. Hamm's subjective and unfounded testimony that he is a bisexual because of his past encounter with appellant. However, in light of the overwhelming evidence of appellant's guilt as we stated in appellant's second assignment of error, we hold that the trial court's error in admitting this testimony was harmless. See Chapman v. California, supra. Appellant's fourth assignment of error is overruled. The judgment of the trial court is affirmed. - 17 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., CONCURS IN MAJORITY AND CONCURRING OPINION; LEO SPELLACY, J., CONCURS (See attached Concurring Opinion, Spellacy, J.). 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59365 STATE OF OHIO : : PLAINTIFF-APPELLEE : : v. : CONCURRING : JAMES CORNELL : OPINION : DEFENDANT-APPELLANT : DATED: NOVEMBER 27, 1991 SPELLACY, J., CONCURRING: I concur in the majority opinion that this case be affirmed. However, I write further on appellant's fourth assignment. I disagree with the majority's position that the prosecution conducted an improper redirect examination of James Hamm with regard to his relationship with appellant. It is clear from the record that appellant's counsel, during cross-examination, questioned James Hamm about his drug problems and psychological condition. I find that the prosecution's questions, directed to James Hamm, were in direct response to appellant's counsel's line of questioning. Thus, I find no error in the prosecution's redirect examination of James Hamm. Accordingly, I concur with the majority opinion that appellant's conviction be affirmed. .