COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59467 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM MATTHEWS, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : DECEMBER 12, 1991 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 241874 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES THOMAS E. MALLOY, ESQ. Cuyahoga County Prosecutor 75 Public Square, #1320 The Justice Center, 8th Floor Cleveland, OH 44113 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant William Matthews, Jr. ("appellant") appeals his conviction of one count of murder (R.C. 2903.02). Appellant was convicted of purposely causing the death of his five month old son, Karif Matthews (the "victim"). For the reasons that follow, we affirm his conviction. Dr. Sreenivasa Murthy ("Dr. Murthy"), Deputy Coroner for Cuyahoga County, testified on behalf of the state. Dr. Murthy performed the autopsy on the victim and, after conferring with Dr. Elizabeth Balraj, the Chief Coroner, ruled the victim's death a homicide. Dr. Murthy testified the victim had two skull fractures which were caused by multiple blunt impacts with a blunt object which occurred within twenty-four hours of the victim's death. The victim also had contusions to the brain. He also reported two healing fractures of the tenth and eleventh ribs and "tremendous injury" to the soft tissue of the victim's brain. (T. 82). Dr. Murthy further testified the victim's injuries were not consistent with a fall from a couch but would be consistent with a fall from a "great height." (T. 58). Dr. Murthy ruled out natural causes, including Sudden Infant Death Syndrome ("SIDS") and stated that the kind of multiple impacts the victim received to his head caused the brain to swell which produced death. (T. 82). Appellant's wife, Judy Matthews ("Judy") then testified on behalf of the state. She stated she worked as a private duty - 3 - nurse and appellant was unemployed. Hence, appellant was responsible for watching the victim while Judy worked. On the day in question, Judy proceeded to work at 6:15 a.m. Prior to leaving for work, she noticed the victim was not feeling well. She left instructions for appellant to feed the victim his medicine, as the victim had a cold and was congested. Judy returned home at approximately 9:00 p.m. She stated the victim was asleep upstairs in his room. Because it was appellant's birthday, she had stopped and picked up some videos and appellant and Judy began a birthday celebration. Judy testified appellant asked her three times to check on the victim but Judy first wanted to finish watching the videos. Judy checked on the victim at approximately 10:45 p.m. and discovered that his lips were blue and he was not breathing. She began screaming. Appellant administered CPR and EMS arrived shortly thereafter. The victim died at 11:22 p.m. that same night. On cross-examination, Judy stated the victim fell from the couch twice before his death. She also stated their other son, William Matthews, III, died of SIDS two years prior to the victim's death. When questioned about the victim's healing fractures on two of his ribs, she stated the fractures were the result of the Heimlich Maneuver being performed on him. Judy was also questioned about her two daughters who were removed from their home and placed into foster care because of - 4 - suspected abuse. Judy testified the children were removed due to her own neglect and both daughters had, at different times, either fallen off her dresser or down the stairs, and received fractures. Judy also testified that appellant was a loving father and a tender person. Patricia Aufdenberg ("Aufdenberg"), a social worker at the Department of Health and Human Services, testified on behalf of the state. She testified that Judy's two daughters were removed from the home for suspected abuse. Both girls were observed with bruises. Aufdenberg testified the victim and appellant were instructed to go to parenting classes but only attended a few classes. Three of the appellant's sisters testified on behalf of the state. Caroline Matthews ("Caroline") testified that while appellant lived with them in the early 1980's, he was abusing her children. Caroline also recounted that appellant was involved in Satanism and Islam and that he used marijuana. Appellant told Caroline, after the victim died, that the victim choked on formula. However, Sharon Hudson ("Hudson"), appellant's other sister, was told by her brother that the victim fell off the couch. Marilyn Hampton ("Hampton"), another of appellant's sisters, testified appellant attempted to have anal intercourse with one - 5 - of her sons while appellant was living with them. Hampton testified appellant was not a loving and caring father. Valerie Grant ("Grant"), a case manager at the Department of Health and Human Services, testified she was assigned to monitor the Matthews and get them involved in a parenting program because appellant and Judy did not have adequate parenting skills. Grant also visited the Matthews' residence shortly after the victim died. She stated she had not received any explanations as to how the victim died and learned that some of the baby items had already been sold. The defense presented the testimony of Mary Rose Dorsey ("Dorsey"), as a character witness. Dorsey had hired Judy as a private duty nurse to care for an elderly woman. Dorsey stated she knew appellant well and that he was trustworthy and non- violent. Dorsey also stated she recalled Judy telling her that the victim had fallen off the couch and hit the cocktail table just two or three weeks before his death. Appellant testified in his own behalf. He admitted to a prior conviction of breaking and entering. He denied he ever practiced Satanism. He testified he administered the Heimlich Maneuver on the victim four weeks prior to the victim's death because he was choking on a piece of candy. Appellant denied harming the victim but admitted he used to play "rough" with the victim. Appellant recalled the victim fell off the couch at 1:30 p.m. the day he died. Also, appellant specifically recalled he - 6 - asked Judy to check on the victim three times when she returned from work. The state presented Zulma Blasini-Perk ("Perk"), as a rebuttal witness. Perk worked for the Metro Health Systems educating inner-city pregnant women on pre-natal care and good parenting. She testified she and another rebuttal witness for the state, Joanne Mosley ("Mosley"), visited the Matthews' residence one or two days after the victim died. She was made aware that baby items were being sold or already had been sold. It was never mentioned that the victim fell off the couch. Moreover, Perk had labeled the Matthews' situation, prior to the victim's death, as being a "problem case" as she observed violence and abuse. (T. 341). Mosley testified she witnessed at one time appellant kick Judy in the stomach while Judy was pregnant. The defense presented Judy on rebuttal. Judy stated appellant did not kick her in the stomach but merely bumped her with his knee. Appellant assigns five errors for review by this court: I. THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING THE ADMISSION OF IRRELEVANT, INADMISSIBLE AND HEARSAY CHARACTER EVIDENCE AND "OTHER ACTS" OF APPELLANT AND THEREBY DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW AND TO CONFRONTATION OF WITNESSES AS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND THE STATE OF OHIO. II. THERE IS CONSTITUTIONALLY INSUFFICIENT EVIDENCE TO SUSTAIN APPELLANT'S CONVICTION FOR MURDER. - 7 - III. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO GIVE A LIMITING INSTRUCTION ON "OTHER ACTS" AND BY GIVING AN ERRONEOUS IN- STRUCTION ON CHARACTER EVIDENCE AND THEREBY DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE CON- STITUTION OF THE STATE OF OHIO AND THE UNITED STATES. V. PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW AS GUAR- ANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO. I. In appellant's first assignment of error, he argues the trial court erroneously permitted the introduction of "other acts" evidence in violation of Evidence R. 404(B). Specifically, he objects to the following evidence being admitted: appellant's alleged homosexuality; his religious beliefs; his alleged marijuana use, and; his economic status and poor housekeeping habits. Significantly, defense counsel did not object to the introduction of this evidence. Ergo, our analysis on review is whether the trial court committed plain error. The standard for plain error under Crim. R. 52(B) is whether substantial rights of the accused are so adversely affected as to undermine the fairness of the guilty determining process. State v. Swanson (1984), 16 Ohio App. 3d 375. It should be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long (1978), - 8 - 53 Ohio St. 2d 91, paragraph three of the syllabus. Moreover, in order to rise to the level of plain error, it must first appear on the face of the record that error was committed and second that but for the error, the result of the trial clearly would have been different. See State v. Underwood (1983), 3 Ohio St. 3d 12. In this case, we do not find plain error. Evid. R. 404(A) prohibits the introduction of "other acts" evidence for the purpose of proving the defendant acted in conformity with those acts, subject to limited exceptions. Evid. R. 404(B), however, provides that evidence of other crimes, wrongs or acts may "be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See, also, State v. Hector (1969), 19 Ohio St. 2d 167. The exceptions delineated in Evid. R. 404(B) are "to be strictly construed against the state and to be conservatively applied by the trial court." State v. DeMarco (1987), 31 Ohio St. 3d 191, 194. The rationale behind the rule is that "evidence of the commission of other crimes, wrongs or acts by the accused is inadmissible for the purpose of showing a disposition or propensity to commit crimes" in order to avoid the inference that the accused is a bad person and therefore must have committed the crimes charged. State v. Rogers (June 6, 1991), Cuyahoga App. No. 58557, unreported, at 8-9 quoting United States v. Phillips (C.A. 6, 1979), 599 F. 2d 134, 136. - 9 - Most of the testimony in this case fell into one of the exceptions which are delineated in R.C. 2945.59: 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. (emphasis added). The evidence introduced by the state's witnesses attempted to disprove appellant's claim that the victim sustained a fall from the couch as a result of an accident or that the victim died of SIDS. Even if the trial court erred in admitting "other acts" evidence, such as his religious beliefs and alleged homosexual- ity, we must turn then to the issue of whether this violation is grounds for a reversal of his conviction. The Ohio Supreme Court has noted that "'* * *, the Constitution entitles a criminal defendant to a fair trial, not a perfect one. [citations omitted].'" State v. Williams (1988), 38 Ohio St. 3d 346, 349. An otherwise valid conviction should not be set aside if the reviewing court may confidently say, in the whole record, that the error was harmless beyond a reasonable doubt. Id. Moreover, the harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the defendant's - 10 - guilt or innonence. Id. Hence, if the remaining evidence, standing alone, constitutes overwhelming evidence of defendant's guilt, a criminal conviction should not be reversed. State v. Williams (1983), 6 Ohio St. 3d 281, paragraph six of the syllabus. In this case, the evidence unequivocally revealed that appellant had sole custody of the victim shortly before his death and was solely responsible for watching and caring for the victim. Most significantly, Dr. Murthy testified the blows to the victim's head were sustained within twenty-four hours of his death. Dr. Murthy testified the victim died as a result of multiple blunt impacts to the head which could not have been sustained from a fall off the couch, as appellant suggested. Further, Dr. Murthy ruled out SIDS as a result of death. Hence, despite the introduction of "other acts" evidence, error, if any, was harmless beyond a reasonable doubt. Accordingly, the first assignment of error is overruled. II. In appellant's second assignment of error, he argues the evidence is insufficient to sustain his conviction of murder. We do not agree. In State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus, the court held: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine - 11 - whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)" Appellant was convicted of R.C. 2903.02 which reads: (A) No person shall purposely cause the death of another. (B) Whoever violates this section is guilty of murder, and shall be punished as provided in section 2929.02 of the Revised Code. Moreover, we note that under Ohio law, a defendant may be convicted solely on the basis of circumstantial evidence. State v. Nicely (1988), 39 Ohio St. 3d 147, 151. Circumstantial evidence has no less probative value than real and direct evidence, and sometimes is even more reliable. Id. In this case, the circumstantial evidence was sufficient to sustain his conviction of murder. Appellant merely argues that although Dr. Murthy testified the victim's skull fractures had occurred within twenty-four hours of his death, custody of the child was not established prior to 6:15 a.m. of the day the victim died when Judy left for work. This argument must fail. Even without the testimony of other alleged abuse by appellant of either his nephews or step-children, the testimony of Dr. Murthy established that: (1) the claimed cause of death by appellant, SIDS, clearly was not the victim's cause of death; - 12 - (2) the victim sustained two skull fractures within twenty-four hours prior to his death; (3) the skull fractures were caused by multiple blunt impacts to the victim's head which could not have been caused by a fall from a couch; (4) an accident and other natural causes of death were ruled out because of the "tremendous injury" to the soft tissue of the victim's brain (T. 82); (5) multiple blunt blows to a head, such as the victim sustained, causes a brain to swell and produces death. Further, Caroline testified appellant told her the victim died as the result of choking on his formula (T. 155). However, his other sister Sharon testified appellant told her the victim died as a result of falling off the couch (T. 164). Detective Parker Adrine ("Det. Adrine") of the Cleveland Police Department investigated the victim's death and testified that at appellant's initial interview, he made no mention that the victim fell off the couch but admitted to playing "rough" with him (T. 176). However, at appellant's second interview, and after appellant learned of the victim's skull fractures, he told Det. Adrine the victim fell from the couch (Tr. 181). In light of the foregoing evidence, we find sufficient evidence to sustain appellant's conviction of murder. Accordingly, the second assignment of error is overruled. - 13 - III. In appellant's third assignment of error, he argues he was denied the effective assistance of trial counsel. Specifically, he contends trial counsel allowed "other acts" evidence to come before the jury without objection; placed his character in issue; and failed to request and object to jury instructions regarding the "other acts" evidence. In order to substantiate a claim of ineffective assistance of counsel, the appellant must demonstrate that his counsel deprived him of a fair trial. The appellant must demonstrate that: 1) defense counsel's performance at trial was seriously flawed and deficient; and 2) the result of the trial would have been different if defense counsel had provided proper representation at trial. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St. 3d 144. A presumption that a properly licensed attorney executes his legal duty in an ethical and competent manner must be applied to any claim of ineffective assistance of counsel. State v. Smith (1985), 17 Ohio St. 3d 98; Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. In addition, this court must accord deference to defense counsel's strategic choices made during trial and cannot examine the strategic choices of counsel through hindsight. Strickland v. Washington, supra, at 689. Further: "Counsel's performance will not be deemed ineffective unless and until counsel's - 14 - performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance (State v. Lytle [1976], 48 Ohio St. 2d 391, 2 O.O. 3d 495. 358 N.E. 2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley (1989), 42 Ohio St. 3d 136, paragraphs two and three of the syllabus. The Ohio Supreme Court stated: Where the record indicates that defense counsel performed conscientiously and, at least, as well as a lawyer with ordinary training and skill in the criminal law, and investigated and asserted all the apparently substantial defenses that were available to the defendant, in the face of the evidence against the defendant, mere failure to make objections which seem appropriate after the fact does not establish prejudicial error as a deprivation of the Sixth Amendment right to counsel. State v. Lockett (1976), 49 Ohio St. 2d 48; see also State v. Hunt (1984), 20 Ohio App. 3d 310. The record indicates appellant's trial counsel failed to object to the presentation of evidence to which he now complains and failed to object to or request jury instructions concerning "other acts" evidence. A reviewing court will not second guess counsel's strategy for conducting a defense. State v. Lipford (Dec. 7, 1989), - 15 - Cuyahoga App. No. 56027, unreported, at 10; State v. Winters (July 22, 1982), Cuyahoga App. No. 42799, unreported; see also, State v. Clayton (1980), 2 Ohio St. 2d 45. Since no objections were raised in the trial court, the error has not been preserved on appeal. If error was committed, it was rendered harmless by the overwhelming evidence of appellant's guilt, as discussed in the first and second assignments of error, infra. It was most likely part of trial counsel's strategy to inquire into appellant's character and thus open the door for further inquiry upon cross-examination. See State v. Deal (Aug. 2, 1990), Cuyahoga App. No. 57358, unreported, at 10. Our review of the record revealed trial counsel performed as conscientiously as a reasonable lawyer with ordinary training and skill could have performed and the failure to make objections in this instance does not establish prejudicial error. Lockett, supra. Accordingly, the third assignment of error is overruled. IV. In appellant's fourth assignment of error, he argues the trial court committed plain error in not giving a limiting instruction as to the "other acts" evidence and in instructing the jury it could consider certain aspects of appellant's life style. - 16 - We first note that trial counsel did not request or object to jury instructions. As such, any error is waived unless it is plain error. State v. Gillard (1988), 40 Ohio St. 3d 226, 230 citing Crim. R. 52(B). The failure to object to a jury instruction constitutes waiver of any claimed error unless the outcome of the trial clearly would have been different. State v. Underwood (1983), 3 Ohio St. 3d 12, syllabus. Appellant relies on State v. Flonnory (1972), 31 Ohio St. 2d 124, at paragraph two of the syllabus: Where evidence has been admitted for a limited purpose, which the state claims shows that the defendant did certain "other acts" which show the motive or intent of the accused or absence of mistake or accident on his part or the defendant's scheme, plan or system in doing the act alleged in the indictment, such evidence must not be considered by the jury as any proof whatsoever that the accused did any act alleged in the indictment. Indeed, the trial court complied with this rule of law and instructed the jury as follows: I should point out to you that there was some reference in the evidence in this case, in the testimony, to a matter, alleged Satanism. The fact that the defendant was unemployed or he had certain furnishings in his house which may have seemed inconsistent with his station in life, those were -- The evidence regarding that was admitted by the Court solely to assist you in in [sic] judging the credibility of the defendant here and his testimony and the witnesses who testified, but may not be considered for any other purpose. - 17 - That evidence has no relevance or bearing on the question of guilt or innocence of the defendant as to the crime charged in this case. (T. 406-07). Further, the instruction about appellant's lifestyle was limiting in that the trial judge instructed the jury that it could only consider such evidence as it bears upon appellant's credibility. Accordingly, we find no error and overrule the fourth assignment of error. V. In appellant's fifth assignment of error, he argues he was denied a fair trial due to specific instances of prosecutorial conduct. Specifically, he contends the prosecutor: (1) elicited prejudicial "other acts" evidence and argued the evidence during closing argument; (2) improperly cross-examined appellant about his prior conviction of breaking and entering, and; (3) interjected issues that were unsupported by the evidence when examining certain witnesses. First, trial counsel failed to object to most of the claimed instances of prosecutorial misconduct. We do not find, after a close review of the trial testimony, that but for these comments, the result of the trial would clearly have been different. Second, a few comments were objected to and indeed sustained. The jury was instructed to disregard the testimony. As such, the court protected appellant's rights from any possible - 18 - resulting prejudice by sustaining the objections and instructing the jury to disregard the evidence. State v. Wright (November 30, 1989), Cuyahoga App. Nos. 56338 and 56339, unreported, at 5. Third, the remarks made by the prosecutor did not constitute plain error under Crim. R. 52(B) absent a timely objection by defense counsel. Id., at 6. Accordingly, the challenged comments did not undermine the fairness of the trial. Id., at 6- 7. (Citations omitted). Last, we note a criminal defendant, while being entitled to fair trial, is not entitled to a perfect one. State v. Williams, supra, at 349. Our review of the record compels us to overrule appellant's fifth assignment of error. Judgment affirmed. - 19 - 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 Court of Common Pleas 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. KRUPANSKY, C.J. JOHN F. CORRIGAN, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .