COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59616 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CLARENCE ASHBY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : DECEMBER 26, 1991 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR 240722 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES GALE BARKAN, ESQ. Cuyahoga County Prosecutor JEFFREY PEDERSON, ESQ. CHRISTA D. BRUNST 1714 Randall Road Assistant County Prosecutor Cleveland, OH 44113 The Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J., On August 4, 1989, the Cuyahoga County Grand Jury indicted defendant-appellant Clarence Ashby ("appellant") for seven counts of rape in violation of R.C. 2907.02. The seven counts of rape involved sexual conduct which allegedly occurred in 1984, 1985, 1986, 1987, 1988, and twice in 1989 with Sharon Martin, who was under the age of thirteen. On December 5, 1989, appellant entered a plea of guilty to counts six and seven of the indictment without the age specifications. Appellant also entered a plea of guilty to counts three, four and five, which were amended to the crimes of sexual battery. Counts one and two were nolled. On January 12, 1990, the appellant was permitted to withdraw his plea of guilty and, thereafter, on March 11, 1990, the case proceeded to trial by jury. Sharon Martin, age twelve at the time of trial testified that the appellant is her grandfather and from the time she was in kindergarten until she was removed from her home the appellant would touch her vagina with his penis. Sharon testified that during 1987 the appellant came into the bedroom where she was watching television. Both she and the appellant were on his bed when he tried to put his penis in her vagina. Sharon also discussed an incident which occurred during the summer of 1988. She testified that she was over at the appellant's house because her mother was at work. Sharon was in - 3 - the appellant's room, her pants were pulled down, and she stated, "He tried to put his penis in my vagina." When questioned further about conduct in 1988 Sharon indicated that such incidents occurred more than once. She also testified that his penis touched her vagina and that it hurt. Sharon testified about another incident which occurred approximately two weeks prior to Christmas of 1988. She again indicated that the appellant touched her vagina with his penis. Finally, Sharon testified about an incident which occurred in March of 1989, just prior to the time she was removed from her home. Again, she indicated the appellant tried to put his penis in her vagina. She also testified that what she and appellant did was the appellant's secret and that she was not supposed to tell the secret to anybody. Johnny Lee Ashby, Sharon's brother, testified that he and Sharon were oftentimes left at the appellant's home while their parents were away. On some of these occasions, the boys would play outside while Sharon was left alone with the appellant. William Volkner testified that he is employed by the Cuyahoga County Department of Health and Human Services. Volkner testified he first became involved with Sharon Martin's case in March of 1989. He testified that on May 16, 1989, Sharon was removed from her home after she called 696-KIDS and stated she was afraid to return home. An intake worker responded to the call. When allegations of sexual abuse were made Sharon was - 4 - taken to University Hospitals for an examination. Sharon was again examined on June 5, 1989 at Rainbow Babies and Children's Ambulatory Center. Dr. Susan Maier testified that in May of 1989, she was employed as a physician at Rainbow Babies and Children's Hospital. She identified State's Exhibit 1 as a record of Sharon Martin's emergency room visit to the hospital on May 26, 1989. She indicated that the treating emergency room physician was Dr. Falkner and that she referred to his report when she conducted her own examination on June 5, 1989. During the June 5, 1989 examination Sharon revealed that the appellant had touched her anal opening with his penis and it caused her pain when defecating. A pelvic examination revealed the presence of a healed scar below the vaginal opening. Dr. Maier testified that the scar was consistent with the insertion of a penis into the opening of the vagina. Dr. Maier also noted that Sharon had an irritation of the rectal area. Dr. Maier also testified that Sharon identified the appellant as the perpetrator of her sexual abuse during the course of the examination. The final witness to testify on behalf of the state was Jocelyn Rouden a social worker in the Sex Abuse Unit of the Cuyahoga County Department of Human Services. Following Sharon's telephone call to 696-KIDS and the allegations of sexual abuse Miss Rouden interviewed Sharon Martin, Tony Martin (Sharon's step-father), Estella Martin (Sharon's mother), Johnny Ashby - 5 - (Sharon's brother) and the appellant. She testified that during her interview with the appellant the appellant admitted to putting his penis between Sharon's legs and lying on top of her until he ejaculated. The appellant also told her this conduct had occurred five times, the last incident occurring in the middle of May of 1989. Cledina Ryan was the first witness to testify on behalf of the defense. She testified that in her opinion Sharon Martin was not truthful. Randy Ashby, Sharon's brother, testified that he, his brother and Sharon would often go to appellant's house, but that Sharon was never left alone with the appellant. Additionally, he testified he did not believe things Sharon told him. Clarence Ashby, appellant's son, stated that he had six children and the appellant frequently babysat for him. He stated that he did not believe his niece's allegations. Rosemarie Martin and Louis Martin testified that Sharon told them that she was going to get even with the appellant because he would not buy her a bikini she had wanted. The final witness to testify on behalf of the defense was Estella Martin, Sharon's mother. She testified that Sharon at times tells the truth and that other times, she lies. Following presentation of the defense's case counts one, two and three were dismissed pursuant to Crim. R. 29. On March 16, 1990, the jury found the appellant guilty of rape in counts - 6 - six and seven and guilty of the lesser included offenses of gross sexual imposition as to counts four and five. Appellant was sentenced to life imprisonment on counts six and seven and two years each on counts four and five. The instant appeal followed. Appellant's first assignment of error provides: THE TRIAL COURT ERRED IN IMPROPERLY ADMITTING INTO EVIDENCE STATE'S EXHIBIT NO. 1, AS WELL AS TESTIMONY FROM THAT DOCUMENT THEREBY DENYING APPELLANT HIS RIGHT TO CONFRONT WITNESSES AND HIS DUE PROCESS TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION AND ART. I SECTION TEN OF THE OHIO CONSTITUTION. Appellant's first assignment of error argues the trial court erred in admitting State's Exhibit 1 into evidence and allowing testimony concerning said exhibit. State's Exhibit 1 was an emergency room record from University Hospitals. The record included notes prepared by Dr. Falkner, who performed the emergency room examination of Sharon Martin on May 26, 1989. For the following reasons, appellant's argument lacks merit. Our review of the record reveals that the appellant failed to specifically object to the admission of State's Exhibit 1. Similarly, he has failed to object to Dr. Maier's testimony, which included references to the exhibit. After the presentation of the state's case, the following discussion concerning the admission of the state's exhibits occurred: THE COURT: Okay. The State has rested and pending the admissibility of certain exhibits. They don't have many exhibits. How - 7 - many do you have, Mr. Columbro? MR. COLUMBRO:We have three. THE COURT: Do you have any objection to any of them? MR. BARKAN: Well, of course I have to object to number three. THE COURT: What's that? MR. BARKAN: The one we used -- THE COURT: Oh, that's in. I admitted that. Let the record show that the exhibits are all admitted over the objection of the defendant. The three State's exhibits are admitted into evidence. Okay. (Transcript, pp. 153-154.) The above-quoted portion of the transcript reveals that the appellant only objected to the admission of State's Exhibit 3 and not to State's Exhibit 1. Thus, in order to prevail, the appellant must demonstrate the existence of plain error. Initially, we note that an appellate court need not consider an error which a complaining party could have called to the trial court's attention at a time when the trial court could have avoided or corrected the error. State v. Ferrette (1985), 18 Ohio St. 3d 106; State v. Williams (1977), 51 Ohio St. 2d 112. However, Crim. R. 52(B) provides that plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. - 8 - Furthermore, it has been held that an error does not constitute a plain error or defect under Crim. R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Long (1978), 53 Ohio St. 2d 91, 97. Notice of plain error is to be taken with the utmost caution and only to avoid a manifest miscarriage of justice. Id. In the instant case, the outcome of the trial clearly would not have been otherwise but for the alleged error. State's Exhibit 1 is a record of Sharon Martin's May 26, 1989 examination at University Hospitals' Emergency Room. State's Exhibit 2 is a record of Sharon Martin's June 5, 1989 examination performed by Dr. Maier. State's Exhibit 2 was properly admitted into evidence after being authenticated by the testimony of Natalie Meszaros, the Director of Medical Records at Rainbow's Ambulatory Practice. See discussion, infra. State's Exhibit 2 was further authenticated by the testimony of Dr. Maier, who conducted the June 5, 1989 examination and prepared the medical record contained therein. Our review of State's Exhibit 1 and 2 reveals that the information contained therein is substantially cumulative although not identical. In both exhibits, the appellant is named as the perpetrator of the sexual abuse. In light of the cumulative nature of the reports contained in State's Exhibits 1 and 2, we are not persuaded that but for the admission of State's - 9 - Exhibit 1, the outcome of the trial clearly would have been different. We reach a similar conclusion regarding Dr. Maier's references to Exhibit 1 during the course of her testimony. During Dr. Maier's testimony, she indicated she reviewed the May 26, 1989 emergency room report prior to and during her June 5, 1989 examination of Sharon Martin. She further testified that Sharon named the appellant as the perpetrator of the sexual abuse during the course of the examination. She also testified that according to the records, i.e., the May 26, 1989 report, Sharon named the appellant as the perpetrator of the sexual abuse. Although Dr. Maier testified that the appellant was also named as the perpetrator in the emergency room report, we are not persuaded that but for Dr. Maier's statement the outcome of the trial clearly would have been different. Had the statement about the contents of the May 26, 1989 report not been made the jury still would have had before it the fact that Sharon identified the appellant as the perpetrator of the sexual abuse during her June 5, 1989 examination. In light of the above, the admission of State's Exhibit 1 and Dr. Maier's references thereto do not constitute plain error and under the circumstances there was no manifest miscarriage of justice. Appellant's first assignment of error is overruled. Appellant's second assignment of error provides: - 10 - THE TRIAL COURT ERRED IN IMPROPERLY ALLOWING DR. MAIER TO TESTIFY TO STATEMENTS MADE TO HER WHEN TAKING THE PATIENT HISTORY ON JUNE 5, 1989 AND RECORDED IN THE DOCUMENT ADMITTED AS STATE'S EXHIBIT NO. 2 AND ALLOWING THAT DOCUMENT INTO EVIDENCE CONTAINING SUCH HEARSAY STATEMENTS THEREBY DENYING APPELLANT HIS RIGHT TO CONFRONT HIS ACCUSER AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION AND ART. I SECTION TEN OF THE OHIO CONSTITUTION. Appellant's second assignment of error argues the trial court erred by allowing the introduction of hearsay evidence through the testimony of Dr. Maier. The appellant also argues the trial court erred by admitting Dr. Maier's report, State's Exhibit 2, into evidence. Each of appellant's contentions lacks merit. While Dr. Maier's testimony contained hearsay, we find that Sharon Martin's statements to Dr. Maier, a pediatric physician, were admissible as a hearsay exception pursuant to Evid. R. 803(4). Evid. R. 803(4) provides: Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Thus, this court has held that a physician's testimony concerning victim's statements to the physician including the identity of the offender are properly admitted under Evid. R. - 11 - 803(4). State v. Negolfka (Nov. 19, 1987), Cuyahoga App. No. 52905, unreported. In the instant case, Dr. Maier's testimony regarding what the victim told her about the sexual acts falls within the hearsay exception contained in Evid. R. 803(4). Accordingly, those statements were properly admitted. We also find that the trial court properly admitted State's Exhibit 2, the medical records of Sharon Martin's June 5, 1989 examination, pursuant to Evid. R. 803(6). Evid. R. 803(6) contains the business records exception to the hearsay rule. Such records are admissible if the testimony of the custodian of the records or other qualified witness shows, inter alia, that such records are kept in the course of a regularly conducted business activity and that it was a regular practice of that business activity to make the records. See, State v. Vrona (1988), 47 Ohio App. 3d 145, 148. In the instant case, the testimony of Natalie Meszaros, the records custodian for the Rainbow Ambulatory Practice section of University Hospitals established that State's Exhibit 2 was a record kept in the regular course of business and that it was a regular practice to make such records. We thus conclude that State's Exhibit 2 was properly entered into evidence pursuant to Evid. R. 803(6). In light of the foregoing, appellant's second assignment of error is overruled. - 12 - Appellant's third assignment of error provides: THE EVIDENCE ADDUCED AT THE TRIAL WAS INSUFFICIENT TO UPHOLD THE CONVICTIONS OF RAPE IN COUNTS SIX AND SEVEN THEREBY DENYING THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION AND ART. I SECTION TEN OF THE OHIO CONSTITUTION. Appellant argues in his third assignment of error that there is insufficient evidence to sustain his rape convictions. Specifically, appellant maintains there is no evidence of force or threat of force and no evidence of penetration. Appellant's contentions lack merit. A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. The test for sufficiency review is set forth in State v. Martin (1983), 20 Ohio App. 3d 172, 175: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319. (Citations omitted.) Appellant was convicted of two counts of forcible rape in violation of R.C. 2907.02 which provides in pertinent part: - 13 - (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. * * * (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 threat of force, whoever violates division (A)(1)(b) of this section shall be imprisoned for life. "Sexual conduct" is defined in R.C. 2907.01 as follows: (A) "Sexual conduct" means 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. Initially, we will address appellant's contention that there was insufficient evidence of penetration. In describing one of the abusive events which occurred during 1987, Sharon Martin testified as follows: A. I was in his bedroom. Q. How did you get there; does he make you go there? A. The TV is in there. And I like to watch TV a lot, 'cause cartoons are on, and - 14 - soap operas, and that. And I like to watch TV a lot. Q. So, you were watching TV, and then what happened? A. I can't remember. Q. Can you recall one time where you were watching TV and he might have come up to you? A. Yes. Q. What does he say to you? A. I can't remember. Q. Where do you end up? A. On his bed. Q. And what happens then? A. He tries to put his penis in my vagina. Q. And does he touch you with his penis? A. Yes. Q. Is his penis up or down? A. It's half and half. (Transcript, p. 34.) In describing abusive events which occurred during the summer of 1988, Sharon testified as follows: Q. Okay. What happened; tell us what happened then? A. He tried to put his penis in my vagina. Q. Were you dressed or undressed? A. I was -- my pants were pulled down. - 15 - Q. What time of the day or evening was this? A. Maybe noon. Q. Was this in the summer months? A. Yes. (Transcript, p. 22.) Q. Did he get undressed? A. No. He has these like long underwear, like long underwear that has one of them holes in it. And he unzipped his pants and pulled his penis out from there. Q. And is his penis up or down? A. Sometimes it sags down, and sometimes it's up. Q. What about you, were your pants on or off? A. They're pulled down. Q. Who pulls them down? A. I can't remember. Q. Were you on the bed or off? A. On. Q. What part of him touched you? A. His penis. Q. Touched you where? A. My vagina. Q. Did it hurt you? A. Yes. Q. Did you feel him inside pushing? - 16 - A. Yes. Q. And was anyone else around? A. No. Q. In 1988 how many times did that type of thing happen, that same act, penis to your vagina? A. I can't remember. Q. More than one? A. (Nodded head in the affirmative.) Q. In the month of August, was it more than one? A. Yes. Q. In the month of September, after August, were there also times? A. Yes. (Transcript, pp. 30-31.) Sharon also testified to the following incident of sexual abuse which occurred in 1989: Q. Where on your body would he touch you? A. My vagina. Q. And how would he touch you? A. With his penis. Q. Would this take place at his house? A. Yes. Q. Where in the house? A. His bedroom. Q. Was anyone else around? - 17 - A. No. (Transcript, p. 19.) In addition to Sharon Martin's testimony, the state presented the testimony of Dr. Maier. Dr. Maier testified that her physical examination of Sharon revealed the presence of a healed scar below the vaginal opening. Dr. Maier further testified that the presence of the scar was consistent with insertion of a penis into the opening of the vagina. In construing the above evidence and inferences therefrom in a light most favorable to the prosecution, we conclude that there is sufficient evidence of penetration to uphold appellant's conviction on two counts of rape. We thus reject appellant's contentions to the contrary. Next, we must address appellant's contention that there was insufficient evidence of force or threat of force. Absent force or threat of force, appellant's life sentences may not stand. "Force" is defined in R.C. 2901.01(A) as: *** any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing. It has been recognized in Ohio that facts necessary to prove force are 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. Moreover, in child rape cases force need not be overt and physically brutal but can be - 18 - subtle and psychological. State v. Eskridge (1988), 38 Ohio St. 3d 56, 58. As long as it can be shown that the rape victim's will was overcome by fear or duress, the forcible elements of rape can be established. Id. In Eskridge, a father's penetration of his four-year-old daughter and his warning to her not to tell anyone was found to have been sufficient to overcome her will. In the instant case we are also confronted with a child who was sexually abused by an important authority figure who told her to keep their conduct secret. Although the record does not contain a single act standing alone which constituted force, we conclude that the totality of the circumstances considered together demonstrate that the victim's will was overcome by fear or duress. First, we are cognizant of the inherent power and authority that children recognize in their parental authority figures. In the instant case the appellant, the victim's grandfather, was such an authority figure. In fact the victim was specifically left under appellant's care on numerous occasions. Second, the appellant purposely compelled Sharon Martin to engage in sexual conduct while she was in his care and under his control. Further, Sharon responded in the affirmative when asked if the appellant made her do this. She also indicated that what she and the appellant did was his secret and that she was not supposed to tell anyone. - 19 - Given the testimony of the victim, and upon consideration of the totality of the circumstances and the events surrounding the actions of the appellant, a jury could reasonably have concluded that force or threat of force was present during the commission of the rapes in that Sharon Martin's participation in these incidents was not borne of her own free will. In light of the foregoing, this court concludes that there was sufficient evidence on all the essential elements of forcible rape. Accordingly, appellant's third assignment of error is overruled. Appellant's fourth assignment of error provides: THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY OF LESSER INCLUDED OFFENSE OF GROSS SEXUAL IMPOSITION IN COUNTS SIX AND SEVEN THEREBY DENYING APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION AND ART. I SECTION TEN OF THE OHIO CONSTITUTION. Appellant's fourth assignment of error alleges the trial court erred when it failed to instruct the jury on the lesser included offense of gross sexual imposition as to counts six and seven of the indictment. For the following reasons appellant's contention lacks merit. It is well recognized that absent plain error a lawyer may not raise the court's failure to give an instruction to the jury unless he specifically sought an instruction, objected when it was refused, and noted the grounds for that objection in the trial court. Crim. R. 30 and Crim. R. 52(B). State v. Lockett - 20 - (1976), 49 Ohio St. 2d 48; State v. Long (1978), 53 Ohio St. 2d 91. See, also, State v. Underwood (1983), 3 Ohio St. 3d 12, paragraph one of the syllabus. Plain error is recognized only "under exceptional circumstances and to prevent a manifest miscarriage of justice." Long, supra, at paragraph three of the syllabus. Initially, we note that the appellant neither requested an instruction on gross sexual imposition as to counts six and seven nor objected to its omission. Thus, appellant's assignment of error has been waived absent a demonstration of plain error. Pursuant to R.C. 2945.74 and Crim. R. 31(C), a criminal defendant is entitled to an instruction on a lesser included offense whenever the trial court: (1) determines that the offense on which the instruction is requested is necessarily lesser than and included within the charged offense; and (2) after examining the facts of the case, ascertains that the jury could reasonably conclude that the evidence supports a conviction for the lesser offense and not the greater. State v. Kidder (1987), 32 Ohio St. 3d 279, 280. Moreover, the Ohio Supreme Court has held: A criminal defendant is not entitled to a jury instruction on gross sexual imposition as a lesser included offense of rape where the defendant has denied participation in the alleged offense, and the jury, considering such defense, could not reasonably disbelieve the victim's testimony as to "sexual conduct," R.C. 2907.01(A), and, at the same - 21 - time, consistently and reasonably believe her testimony on the contrary theory of mere "sexual contact," R.C. 2907.01(B). (State v. Kidder [1987], 32 Ohio St. 3d 279, 513 N.E. 2d 311, and State v. Wilkins [1980], 64 Ohio St. 2d 382, 18 O.O. 3d 528, 415 N.E. 2d 303, approved and followed.) State v. Johnson (1988), 36 Ohio St. 3d 224, paragraph two of the syllabus. As in Johnson, the appellant's defense in the instant case was one of complete denial of participation in any sexual abuse. Each of the witnesses on appellant's behalf testified either that appellant was never alone with the victim or that the victim stated her desire to get even with the appellant because he refused to buy her a bikini bathing suit. Given the victim's testimony that the appellant tried to put his penis in her vagina on a number of occasions and appellant's defense of complete denial, the jury could not reasonably construe the victim's testimony as being indicative of a mere touching as opposed to penetration. Thus, appellant was not entitled to an instruction on gross sexual imposition. Accordingly, the lack of an instruction on gross sexual imposition as to counts six and seven does not constitute plain error and, under the circumstances, there was no manifest miscarriage of justice. Appellant's fourth assignment of error is therefore overruled. Judgment affirmed. - 22 - 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 Cuyahoga County 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. DAVID T. MATIA, P.J. DYKE, 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. .