COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59630 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION JAMES TONEY, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 23, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-240,566 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Henry J. Hilow Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Charles W. Fonda 2800 Mayfield Road Suite 207 Cleveland Heights, Ohio 44118 -2- NAHRA, P.J.: James Toney, defendant-appellant, appeals his conviction for the rape of his stepdaughter, Tanya Lee. Tanya Lee testified that Toney is her stepfather and that he has been living with Lee's mother since 1981. She stated that the first rape occurred in 1981 when Toney "put his penis in my vagina". Such incident took place at a time when Lee's mother had gone to the store. Tanya revealed that she did not disclose information about the incident to anyone because she was scared of Toney. Tanya further testified that the sexual attacks continued at least every week and sometimes every three days when her mother was not at home. Tanya was six years old at the time of the first incident. In April, 1989, Tanya testified that Toney was whipping Arleena White, Tanya's sister. Tanya inquired about her sister being whipped to which Toney replied that it was none of her business. Toney told Tanya to "shut up" and he proceeded to strike her. Tanya retaliated; however, when she did, her mother joined Toney by hitting her. Toney and Tanya's mother told her that she would not be allowed to go to Cedar Point with the family as planned previously. Tanya testified that after she fought with Toney, she left the house and went to her biological father's house. Her mother followed her there with the police and Tanya was taken home. Once home that evening, Tanya revealed to her mother that Toney had been having sex with her. Tanya disclosed that her mother responded to such allegations by hitting her with a stick and by -3- stating that she did not believe Tanya. The following day Tanya was taken by her mother to the Juvenile Court and was charged with unruly behavior. While at Juvenile Court, Tanya met with Carol Martin, a social worker in the Sex Abuse Unit of the County Department of Social Services. Tanya told Martin about the attacks; Tanya stated to her that she began talking about the attacks because "I was tired of it." Martin testified that she also met with Tanya's sister, Arleena, and that Arleena corroborated Tanya's disclosure that her sister had walked into a room one day and saw Toney on top of Tanya without his clothes on. Based on such information, Martin determined that Tanya was in danger and that she be placed with her natural father. Dr. Mervat Aziz, a pediatrician, testified that she examined Tanya on May 25, 1990 at Mount Sinai Medical Center. Dr. Aziz testified that upon examination, she discovered that Tanya's hymen was enlarged and scarred. She explained that the multiple scarring of the hymen usually indicates penetration of a girl's vagina. She stated that it was not at all common for such scarring to result from other activities such as bicycle riding. Arleena White, Tanya's eleven-year-old sister, testified on Toney's behalf. She reiterated the events leading to Tanya's disclosure of Toney's sexual attacks. Arleena testified that her stepfather was angry with her and that he whipped her. She -4- recounted that Tanya tried to intervene and stop the whipping but that Toney began to strike Tanya. She explained that Tanya eventually ran out of the house. Arleena further testified that Tanya had instructed her to lie to Ms. Martin about Toney's involvement with Tanya. Arleena revealed that Tanya had told her to say that she had seen Toney on top of Tanya. Arleena indicated that Tanya's motive was to send Toney to jail. Christine Youngblood, Toney's neighbor and good friend, testified that she often babysat Toney's children and that she never observed them being abused physically by Toney or their mother. She testified that Tanya told her that Toney had never molested her. Youngblood did indicate that police came to the Toney home often in response to calls of domestic arguments. On August 25, 1989, Toney was indicted on eight counts of rape pursuant to R.C. 2907.02. Toney was charged with having sexual relations with his stepdaughter, Tanya Lee, by compelling her to submit to such acts with the use of force or threat of force during the period from 1982 through 1989. During such period, Lee was under thirteen years of age. In January, 1990, Toney was tried initially and a jury found him not guilty on counts three, four, five, six, and seven which represented charges from 1983 through 1987. The jury could not reach a verdict in counts one, two, and eight. On March 26, 1990, a second trial commenced on counts one, two, and eight with the latter count renumbered as count three. -5- The jury found Toney not guilty of counts two and three which concerned incidents in 1982 and 1988, respectively. The jury did find Toney guilty of count one which concerned a 1989 incident. On March 29, 1990, the trial court sentenced Toney to a minimum term of eight years and maximum term of twenty-five years imprisonment, plus costs. This timely appeal follows. I. Appellant's first and fifth assignments of error are interrelated and shall be examined together. They state: I. THE APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS DENIED BY THE CONDUCT OF THE PROSECUTION DURING CLOSING ARGUMENTS. V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE APPELLANT DUE PROCESS OF LAW AS GUARANTEED BY THE 6TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION BY THE PROSECUTING ATTORNEY. Toney contends that he was denied a fair trial by the misconduct of the prosecutor. Toney asserts that the prosecutor's comments during closing arguments were prejudicial. The conduct of a prosecuting attorney during trial is a ground of reversal or the basis of a new trial if such conduct deprives defendant a fair trial. State v. Maurer (1984), 15 Ohio St. 3d 239, 266, 473 N.E.2d 768, certiorari denied 472 U.S. 1012. The effect of the prosecutor's conduct must be considered in light of the entire case in order to determine whether the conduct was prejudicial. Id. We do not believe the conduct of -6- the prosecutor was inappropriate or that such conduct deprived the defendant of a fair trial. Parties are granted latitude in closing arguments. State v. Liberatore (1982), 69 Ohio St. 2d 583, 433 N.E.2d 561. During closing argument the prosecution asserted that Carol Martin's testimony revealed that Toney wanted to be present when Martin met with the victim. Toney contends that the prosecutor's comment constituted an improper inference from facts not in the record. While her testimony did not explicitly indicate that Toney wanted to be present, Ms. Martin did testify that Toney called the victim a liar and that he did not believe anything that his children said. As a result, we believe that the prosecutor's remarks were proper. The prosecution also stated that Ms. Martin put her career at risk by testifying. Such fact was not in the record; but this was a collateral matter and such an inference might reasonably be drawn. It cannot be fairly said that such remarks so contaminated the proceedings to deny Toney a fair trial. State v. Smith (1984), 14 Ohio St. 3d 13, 14, 470 N.E.2d 883. The prosecutor also stated during closing argument that the scarring and enlarging of the victim's hymen as indicated by Dr. Aziz would not usually occur through bicycle or horseback riding. Toney argues that this comment was improper since Dr. Aziz was never questioned about it. We disagree. The prosecutor's comment was proper insofar as Dr. Aziz's testimony indicated the same on direct examination. On cross-examination, Dr. Aziz -7- further indicated that the victim's scarring was consistent with sexual penetration and that it would not likely be caused by anything else. The prosecutor also commented during closing arguments that Tanya Lee and her sister Arleena received "whoppings" from Toney, a term used to describe a beating. Such remarks were proper inasmuch as both children testified to the same. Toney finally asserts the prosecution improperly commented on the credibility of Christine Youngblood, a defense witness, during closing arguments. The prosecution stated: Because when you look to what his children tell you who come to this courtroom without any motive or biass (sic) -- surely not Mrs. Youngblood who has raised a fine family, a fine individual, a fine neighbor. Most importantly, a good friend, because a good friend many times when good friends or relatives close their eyes or not have the opportunity to see things that go on. (Tr. 300.) * * * Mrs. Youngblood is not an expert in sexual abuse, yet she's going to tell you her experience talking to kids that this can happen from falling out of a tree. You would have to fall out of a tree to believe it. (Tr. 302.) The prosecution's comments about Youngblood served merely to depict her bias inasmuch as she was a long-term friend and neighbor of Toney and his wife. We do not believe that the prosecutor's comments constituted personal opinion about Youngblood's veracity. Rather, the prosecution was emphasizing facts that impact her credibility and potential bias. -8- Our review of the record indicates that the prosecutor's closing remarks were proper and did not constitute misconduct. Accordingly, appellant's assignments of error are overruled. II. Appellant's second assignment of error is: APPELLANT WAS DENIED DUE PROCESS WHERE THE STATE SECURED A CONVICTION FOR RAPE WITHOUT ESTABLISHING EVERY ELEMENT OF THE OFFENSE. The Supreme Court of Ohio has asserted: A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 160, 383 N.E.2d 132, syllabus; accord State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922. R.C. 2907.02, which constitutes the crime of rape, states 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. * * * -9- (C) A victim need not prove physical resistance to the offender in prosecutions under this section. * * * Toney contends that the state failed to prove the critical element of force insofar as Tanya's testimony does not indicate that she was threatened by Toney or that he forced her to submit to sexual acts. As a result, there was insufficient evidence to convict him of rape. We disagree. R.C. 2907.02(B) requires only that minimal force or threat of force be used in the commission of a rape and that it may be subtle and psychological. State v. Eskridge (1988), 38 Ohio St. 3d 56, 58, 526 N.E.2d 304. The forcible element of rape can be established as long as it is shown that the victim's will was overcome by fear or duress. State v. Fowler (1985), 27 Ohio App. 3d 149, 500 N.E.2d 390. Evidence in the record indicates that force was present to perpetrate the rape. The victim, Tanya Lee, testified that her stepfather threatened her, raped her, and that she was afraid of him. The fear she felt contributed to her decision not to make public the sexual acts she said began when she was six years old. We believe there was sufficient evidence from which a jury could find that Tanya's will was overcome by fear and duress and that the requisite degree of force was present. See State v. Eskridge (1988), 38 Ohio St. 3d 56, 526 N.E.2d 304, paragraph one of the syllabus. The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers-of-fact. State v. Thomas -10- (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. The jury found sufficient evidence that Toney raped his stepdaughter. We believe there was sufficient evidence of force and find no reason to disturb the jury's evaluation of the witnesses' credibility. As a result of the foregoing, appellant's assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT'S FAILURE TO ALLOW TRIAL COUNSEL TO CROSS-EXAMINE DR. AZIZ, THE EXPERT MEDICAL WITNESS, ON THE EMERGENCY ROOM RECORD FROM MT. SINAI HOSPITAL WAS CLEAR AND PREJUDICIAL ABUSE OF DISCRETION. Toney contends that the trial court erred by not permitting him to cross-examine Dr. Aziz, the state's expert witness, about the contents of the emergency room record concerning Tanya Lee. At trial, Dr. Aziz was cross-examined about the emergency room record concerning the parts of the record she actually had written. However, the trial court disallowed cross-examination of Dr. Aziz concerning parts of the record written by a nurse at Mt. Sinai Hospital. To allow Dr. Aziz to read and interpret the nurse's notes would constitute hearsay. See Evid. R. 801. Moreover, Toney did not make a showing that the nurse was unavailable or that he had attempted to have her testify at trial. Evid. R. 804(A); State v. Williams (1988), 38 Ohio St. 3d 346, 528 N.E.2d 910. As a result, the trial court's ruling was proper. -11- We note that the emergency room records were presented to show that Tanya Lee had visited the hospital and were not presented for the truth of the record's contents. Appellant's assignment of error is overruled. IV. Appellant's fourth assignment of error states: THE COURT COMMITTED REVERSIBLE ERROR BY FORCING THE APPELLANT TO BE PUT TWICE IN JEOPARDY FOR THE SAME CRIME, A VIOLATION OF THE 5TH AMENDMENT AND SUPPORTED BY THE DUE PROCESS CLAUSE FOUND IN THE 6TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION. Toney maintains that the second trial violated his constitutional right against double jeopardy. Such an argument lacks merit. In Toney's first trial commencing January 2, 1990, the record indicates that there was no judgment of conviction or acquittal with respect to counts 1, 2, and 8. Such counts resulted in a hung jury. Therefore, the state was permitted to retry Toney on counts 1, 2, and 8 upon his plea of not guilty to the same. See R.C. 2943.05; R.C. 2943.10. Appellant's assignment of error is overruled. V. Appellant's sixth assignment of error states: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. Toney asserts that he was denied effective assistance of counsel. -12- Appellant bears the burden of proof with respect to the ineffectiveness of counsel. State v. Lytle (1976), 48 Ohio St. 2d 391, 396-7, 358 N.E.2d 623. In State v. Brooks (1986), 25 Ohio St. 3d 144, 147, 495 N.E.2d 407, the Ohio Supreme Court adopted the two-part test enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668 to determine whether there was ineffective counsel: First the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Brooks at 147 citing Strickland at 687. In the case at bar, Toney has failed to show that counsel's assistance was deficient or prejudicial. Instead, Toney makes a bald assertion that his counsel was ineffective without any reference to the record. In so doing, Toney failed to carry his burden of proving ineffectiveness of counsel. State v. Smith (1985), 17 Ohio St. 3d 98, 100, 477 N.E.2d 1128. Our review of the record indicates that Toney was afforded a fair trial and effective assistance of counsel insofar as his counsel's representation did not fall below an objective standard of reasonableness. State v. Bradley (1989), 42 Ohio St. 3d 136, 538 N.E.2d 373. Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. -13- 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. *POLLEX, J., CONCURS. (*SITTING BY ASSIGNMENT: Judge Robert C. Pollex of the Wood County Probate/ Juvenile Court.) HARPER, J., DISSENTS. (See attached Dissenting Opinion.) JOSEPH J. NAHRA PRESIDING 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. 59630 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION JAMES TONEY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 23, 1992 HARPER, J., DISSENTING: I must respectfully dissent from the majority opinion. I must say regrettably that the majority has compounded the already difficult issues involving prosecutorial misconduct in our district and all around the state by virtually giving the prosecution a blank check to say anything at trial because when it comes for review, this court will support unfounded inferences no matter how far fetched to support the misconduct. The decision to affirm the egregious conduct by the prosecutor in the within case is nothing more than a pat on the back, saying "thank you son for a job well done, after all, all is well that ends - 2 - well". I will not support such a decision, and I will always point out that decisions of this type are nothing more than reminders of the days back when the prosecution and the police can do anything they see fit as long as it results in a conviction. I am concerned because I thought that "the get it any way you can conviction" has long been declared an unconstitutional deprivation of fundamental rights to a fair trial. Appellant, in his first and fifth assignments of error, argues that the trial court denied him a right to fair trial by allowing prosecutorial misconduct during closing arguments. Specifically, appellant pointed to several statements made by the prosecutor during closing argument which I have given a careful review. The reason for a closing argument in a criminal trial is to permit both counsel to aid the jury by summarizing the evidence presented, and to propound arguments in support of their various positions. United States v. Johns (1983), 734 F.2d 657; United States v. Carter (1983), 720 F.2d 941. It is a well settled law that the scope and extent of the prosecutor's closing argument is within the sound discretion of the trial court, and can only be reversed where an abuse of discretion is found. United States v. Alonso (1984), 740 F.2d 862, cert. denied, (1985), 105 S.Ct. 928. See also Kalady v. State (1984), 462 N.E.2d 1299; Wiley v. State (1984), 449 So. 2d 756; State v. DePew (1988), 38 Ohio St. 3d 275. - 3 - ABA prosecutorial Standard 3-5.8 characterizes a prosecutor's intentional misstatement of evidence or his misleading the jury as to the appropriate inferences it may draw as "unprofessional conduct". It also condemns the prosecutor's expression of his personal opinion or belief as to the truth or falsity of testimony or evidence, or of the guilt of the defendant; to make arguments aimed at inflaming the passions of the jury; and to inject broader issues into the consequences of the jury's verdict as "unprofessional conduct". ABA Prosecution Standard 3-5.9 condemns as "unprofessional conduct" a prosecutor's argument based on facts outside the record, where those facts are not matters of common public knowledge which are based on ordinary human experience or matters of which the court can take judicial notice. ABA's reason for these characterizations is as a result of great concern that the jury recognizing the prestige of the office of the prosecutor and its presumed fact-finding ability will unduly give his argument 1/ special weight. The National District Attorney's Association (N.D.A.A.) Prosecutor Standards, Std. 17.17 urges prosecutors to base their closing arguments to the jury upon the evidence and by "fairness, accuracy, and rationality." The Supreme Court of Ohio, in State v. Smith (1984), 14 Ohio St. 3d 13, set forth the standard to be applied to any claim of prosecutorial misconduct when it stated that: 1/ ABA Prosecution Standard, std. 3.58 Commentary at 3.88. See also Joseph F. Lawless, Jr. Prosecutorial Misconduct 450 (1985). - 4 - "The prosecution is normally entitled to a certain degree of latitude in its concluding remarks. State v. Woodards (1966), 6 Ohio St. 2d 14, 26 [35 O.O.2d 8], certiorari denied (1966), 385 U.S. 930; State v. Liberatore (1982), 69 Ohio St. 2d 583, 589 [23 O.O.3d 489]. A prosecutor is at liberty to prosecute with earnestness and vigor, striking hard blows, but may not strike foul ones. Berger v. United States (1935), 295 U.S. 78, 88. The prosecutor is a servant of the law whose interest in a prosecution is not merely to emerge victorious but to see that justice shall be done. It is a prosecutor's duty in closing arguments to avoid efforts to obtain a conviction by going beyond the evidence which is before the jury. United States v. Dorr (C.A.5, 1981), 636 F.2d 117. "The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. United States v. Dorr, supra, at 120. To begin with, the prosecution must avoid insinuations and assertions which are calculated to mislead the jury. Berger v. United States, supra, at 88. It is improper for an attorney to express his personal belief or opinion as to the credibility of a witness or as to the guilt of the accused. State v. Thayer (1931), 124 Ohio St. 1; DR 7- 106(C)(4) of the Code of Professional Responsibility. Moreover, the code provides that an attorney is not to allude to matters which will not be supported by admissible evidence, DR 7-106(C)(1), and '*** [a] lawyer should not make unfair or derogatory personal reference to opposing counsel. ***' EC 7-37." (Emphasis added.) In United States v. Maccini (1983), 721 F.2d 840, the court held: "The United States Attorney [in the within case, the state attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . It is as much his duty to refrain from improper methods calculated to produce a conviction as it is to use every legitimate means to bring about a just one." (Emphasis added.) - 5 - In the within case, appellant argues that the prosecutor made improper remarks that were not in evidence. Specifically, appellant argues that the prosecutor's remarks about the defendant's desire to be present when the children were interviewed by Ms. Martin, the social worker, was made up by the prosecutor and not in the record. The following closing arguments were given by the prosecutor to that effect: "And recall what Carol Martin tells you, she tells you about the demeanor of the defendant, how he was upset that she was talking to the kid -- how he wanted to be present when they were talking to the kids." The state contends that "while not specifically addressed, reasonable minds relating the defendant's above actions can easily determine he was upset at the events transpiring around him." I disagree. There is a difference between manufacturing statements and drawing inferences from statements that are identified in the record. Unlike the majority's casual acceptance, I do not interpret the testimony of Ms. Martin that the defendant called the victim a liar to be the same as saying that the defendant wanted to be present. The latter gives an inference that the defendant wanted to be present so that the victim would change her truthful story. It is improper since Ms. Martin never testified that such happened. Ms. Martin was specifically asked: "Q. Was he with you when you interviewed her? "A. No. "Q. Who was with you when you interviewed her? "A. I generally interview alone." - 6 - The prosecutor continued: "And she finally got fed up with it. She is 14 years old now. Her body is talking to her. Now, too, there's different problems that arise now at 14 that she didn't face when she was six or seven, including the possibly [sic] of pregnancy, and including the fact that her sister was getting older now and she was worried about her sister. "MR. DRUCKER: Objection. "THE COURT: Overruled." The victim was asked why she came forward. She answered that she was "tired of it". The victim's reason for coming forward was that she was "tired of it". The rest of the prosecutor's reasons were not in the record and cannot be properly inferred from the victim's testimony, except to inflame the mind of the jury. Appellant argues that the prosecutor argued to the jury that Ms. Martin put her career at risk by testifying when such testimony was never offered. The state argues in response: "The record does not contain any statement by Ms. Martin to that effect, but this is hardly a statement that serves to incite a jury enough to deny the defendant a fair trial under State v. Smith, supra." The prosecutor's statement is intended to let the jury know, without testimony to that effect, that Ms. Martin risked her career because she believed that Tanya was telling the truth, when Ms. Martin was only doing what she is employed to do, which had no bearing on whether Tanya was telling the truth or not. The majority in supporting the state's argument, had the following to say. "Such fact was not in the record; but this was a collateral matter and such an inference - 7 - might reasonably be drawn." I am not aware of any law that permits an inference to be drawn from a "collateral matter" without a record to support such inference. The majority's attempt to create an exception to the already established rule that a fact in issue can only be inferred from facts proved and not on collateral matters outside the record, has no legal support because it leads the jury to make a decisions based on probabilities or presumptions of fact, which is nothing more than a guess, without adequate data. See Commonweath v. Keenan (1889), 148 Mass. 470. Appellant points out that the prosecutor argued to the jury that scarring and enlarging of the vagina and hymen as indicated by Dr. Aziz would usually not occur through the activities of bicycle and horseback riding. The state responded by arguing, "While not specifically stating bicycle riding and horseback riding, defense counsel did question the doctor extensively as to the injury that the victim had incurred and how she may have received the same." The prosecutor's telling the jury that Dr. Aziz said something that Dr. Aziz did not testify to, especially since the testimony of Dr. Aziz did not rule out completely that scarring could be caused by objects other than penetration of the penis, is an improper argument not found in the record, as the jury is being told to wrongly conclude that the specialist has ruled out everything but penetration. Appellant points out that the prosecutor made several improper comments on appellant's guilt and the credibility of the - 8 - defense witness to his prejudice. As stated supra, it is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence of guilt of the defendant. See United States v. Modica (1951), 663 F.2d 1173. The prosecutor argued to the jury: "Because when you look to what [sic] his children tell you who come to this courtroom without any motive or bias -- surely not Mrs. Youngblood who has raised a fine family, a fine individual, a fine neighbor. "Most importantly, a good friend, because a good friend; many times when good friends or relatives close their eyes or not have the opportunity to see things that go on. "She is under 13 years old when she had sexual conduct. On the facts, find him guilty of that, April of 1989 when he had sexual conduct, intercourse, whatever term you want to give it, and pursuant to the instruction of the Court, find him guilty of that. He did it. "**** "Very angry man who lashed out at someone who was defenseless. And I told you that this case was about courage, about hearing a voice. Each and everyone of you had the opportunity at sometime in your life while we are sleeping to dream, to wander and when we are in a difficult situation and we are in trouble and we scream out for help or try to run away, no matter how much you scream or yell nobody seems to hear us and we can't get away. "The voice that you hear today is that of Tanya Lee, and she is screaming out and she's been screaming out since last year. "Hear that voice, and based on the evidence that you heard in this case, return the only true verdict in this case and that is guilty count one, rape, count two, rape and count three, rape, and don't let that voice go unheard. "MR. DRUCKER: Objection, your Honor. - 9 - "THE COURT: Thank you. "MR. DRUCKER: Objection. "**** "Mrs. Youngblood is not an expert in sexual abuse, yet she's going to tell you her experience talking to kids that this can happen from falling out of a tree. You would have to fall out of a tree to believe it. "You heard even on cross-examination by Mr. Drucker, the Doctor says no matter how many times he wanted to talk about trauma to the area, Dr. Aziz distinguished that from this case. She said they [sic] wasn't multiple trauma to this area. She said that, in fact, her words, you're trying to put words in my mouth. That is not what I said. "MR. DRUCKER: Objection. "MR. HILOW: When you look to this case the facts are distinguishable because they point to one area of the body, the hymen and the vagina and are not consistent with a 13 or 14 year old, but consistent with one that's been abused. "You heard from Carol Martin, the opinion was that it might be reported to Juvenile Court. This was going to be processed through the system and end up in the court. That notation that the child was told that the day we went to Juvenile -- "MR. DRUCKER: Objection. "THE COURT: Overruled. "MR. HILOW: What are we suppose [sic] to do, pin a medal on him for abusing a child for eight is coming up. You want to give him father of the year? What would you do if you were in a situation not nearly as bad when you had been violated and you finally had somebody who was willing to listen? "Why would Carol Martin come into this courtroom and risk her career? For Tanya Lee? Subject herself to questions -- - 10 - "She told you that she interviewed Arleena and that Arleena, point blank, told her that she feared for her sister's safety. She also told you that she saw her step-father on her. Why would Carol Martin make "I submit that the story changed when she went back into that house with the defendant and her mother. This great house that Mrs. Youngblood tells us what fine people they are. The police are coming over all the time. "How many times in your life have the police been called to break up a disturbance in your house? Alcohol. She talks about the mother with alcohol. This fine house where counsel asked Arleena on cross- examination, have you ever been taken out of your house by a social worker and the answer is yes. "MR. DRUCKER: Objection. "MR. HILOW: Less than a week later, May 25th, 23rd, 1989, they were taken out of the house. When they are called and asked for the assistance of Carol Martin she took Mrs. Toney out of the house she took Arleena out of the house and --" (Emphasis added.) The prosecutor's attack on Mrs. Youngblood was improper. It improperly inferred that she was a lying witness whom the jury should only believe if they "fall out of a tree" (an improbable act). The majority's attempt to sugar coat this plain English as meaning "bias" is unpersuasive. The only time you don't believe someone is when you think they are not telling the truth. "You would have to fall out of the tree to believe it" is plain language calling her a liar. The prosecutor's description of appellant as an angry man who does not deserve a father's day award because he is a child molester is improper and had no basis in the record. The only purpose is to implant in the minds of the jurors the image of a - 11 - maniac who is married to an alcoholic who does not care about or believe in the welfare of their children. The prosecutor's remarks about alcoholism, and the great house where police were called to break up disturbances has no bearing to a rape charge and is highly inflammatory. Neither appellant nor any of the defense witnesses testified that appellant and his wife lived in "heaven", that is, a home free of everyday family problems. The prosecutor argued that the victim had no bias or motive which inferred that she is telling the truth. Quite to the contrary, the record indicates that she only decided to talk about the incident after she was whipped and forbidden from going to Cedar Point. Arleena testified that her sister (the victim) told her that she wanted appellant to be put in jail, and instructed her to lie about seeing appellant on top of her only after she was disciplined. The issue as to who was telling the truth was for the jury to decide and the prosecutor's vouching for the truth of his witnesses is unacceptable. Such arguments distract juries from their true fact finding function and are highly improper and prejudicial. "The prosecutor is cloaked with the authority of the state; he stands before the jury as the community's representative. His remarks are those, not simply of an advocate, but rather of a state official duty bound to see that justice is done." See Modica at 1178. The state argues that appellant's counsel did not object to any of the improper comments, therefore, pursuant to State v. Wade (1978), 53 Ohio St. 2d 182, the comments are considered - 12 - harmless unless appellant was denied a fair trial. I disagree. Appellant's counsel, as per my count, objected six times during the state's closing argument. Any experienced trial lawyer knows that too many objections could invite the wrath of a trial judge and should better know when to stop if the trial court continuously overruled his objections. It is, therefore, unreasonable for the state to expect appellant's counsel to continue to object after the trial court overruled all his objections. All errors of prosecutorial misconduct are potentially harmful until a review of the circumstances render them harmless. Every trial involves human judgment and no court has a crystal ball which can precisely tell it at which particular point in time jurors are influenced by a statement made by counsel. The best safeguard is to avoid and discourage such misconduct, so that trial can be had fairly. A careful review of prosecutorial misconduct cases overwhelmingly reveals the troubling fact that the misconduct is a product of "prosecutorial overkill". The majority of cases show that the prosecution has put forth sufficient evidence to get a conviction, and did not need the extra, extras. Unless courts clamp down on this misconduct and stop this never ending slap on the wrists when such conduct comes up for review, the prosecution would never appreciate that such misconduct constitutes a disservice to the people and the judicial system as a whole, not to mention the damage to the constitutional due - 13 - process requirement of fairness. This court held in State v. Shelton (June 17, 1991), Cuyahoga App. No. 58737, unreported, that: "The misfeasance of the prosecutor, however, cannot simply be ignored in light of the Ohio Supreme Court's recent examination and this court's treatment of the continuous and vexatious problem of prosecutorial misconduct." (Emphasis added.) This is not only a problem in this jurisdiction; opinions all across the nation are replete with comments such as the one above. As the First Circuit Court in Maccini, supra, lamented: "That despite our consistent warnings to the Government we should still be called upon to admonish against such conduct is reprehensible per se because it constitutes a disregard to our directives. But additionally, it is particularly pernicious because it results in an unnecessary waste of judicial resources, both at the trial and appellate level, by diversion and attention to review of what by now should be understood to be totally unacceptable conduct by those who lay claim to representing the Government of the United States." I have reviewed the within case in its total context and do not find the errors harmless because the evidence of guilt was less than overwhelming. See People v. Connette (1984), 101 App. 2d 699; State v. Vrona (1988), 47 Ohio App. 3d 145; State v. Pap (1978), 64 Ohio App. 2d 203. According to this court's holding in State v. Zupan (Nov. 3, 1988), Cuyahoga App. No. 54304, unreported: "The cumulative effect of singular violations of the rules of evidence throughout trial can result in a denial of a right to a fair trial even if each error when taken alone may not be prejudicial. State v. Demarco (1987), 31 Ohio St. 3d 191." Appellant was, therefore, deprived of a fair trial and his first and fifth assignments of error should be sustained. - 14 - IV. Appellant, in his second assignment of error, argues that the evidence was insufficient to convict him of rape. He argues that the only evidence of rape was the testimony of Tanya and the medical records. Appellant further argues that Tanya never testified that he forced her to submit to any sexual act. R.C. 2907.02 states in pertinent part as follows: (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." Appellant's argument has merit. The record shows that appellant was acquitted of all incidents that occurred prior to 1989. His conviction was based on the incident that occurred in 1989 when the victim was fourteen years of age. It necessarily goes that the state must prove beyond a reasonable doubt that force or threat of force was used. The key in determining a forcible element is whether the victim's will was overcome by force or duress. State v. Martin (1946), 77 Ohio App. 553; State v. Davis (1983), 6 Ohio St. 3d 91. In State v. Eskridge (1988), 38 Ohio St. 56, the Ohio Supreme Court held that: - 15 - "Force need not be overt and physically brutal, but can be subtle and psychological. As long as it can be shown that the rape victim's will was overcome by fear or duress, the forcible element of rape can be established." This court held in State v. Mitchell (June 13, 1981), Cuyahoga App. No. 58447, unreported, that: "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, I fail to see the force component or threat of force necessary to convict of rape, pursuant to R.C. 2907.02. The state, in an attempt to show that force was proved, argued as follows: "Tanya Lee testified that she was 6 years old at the time the defendant initially began to rape her in 1981 (R. 28). This testimony was supported by Tanya's sister Arleena White, as well as the medical testimony of Dr. Aziz. The doctor stated the victim had all the physical signs of vaginal penetration (R. 157, 168). The doctor also practically rules out bike riding or horseback riding as a cause of this victim having an enlarged vagina and scarring of the hymen (R. 137)." The state's argument not only was unpersuasive to show that force was used but failed to recognize that appellant was acquitted of all incidents that occurred from when Tanya was six years old until she was fourteen. The force necessary to convict appellant of rape is not the force of the incidents that the victim claimed occurred that the jury did not believe ever took place, but the force that must be present in 1989 when the rape occurred and the victim was fourteen years of age. The record is also devoid of any testimony by the victim's sister, Arleena White, that force - 16 - was used. The enlargement of the vagina does not constitute force as contemplated by the statue or case law. "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a trier of fact could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Eley (1978), 58 Ohio St. 2d 169." This court held in State v. Martin (1983), 20 Ohio App. 3d 172, 175, that: "The Court, reviewing the entire record weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case which the evidence weighs heavily against the conviction." A review of the record shows that the victim slapped appellant because appellant hit her sister. If the victim was able to strike appellant on a lesser incident of hitting her sister, surely the state can present some evidence to show that the victim's will was overcome by fear or duress even from the circumstances of the case. The state has not proved beyond a reasonable doubt that Tanya's will was overcome by fear or duress to constitute the element of force necessary to convict of rape pursuant to R.C. 2907.02. The majority affirmed the element of force by holding: "Evidence in the record indicates that force was present to perpetrate the rape. The victim, Tanya Lee, testified that her stepfather threatened her, raped her and that she was afraid of him. The fear she felt contributed to her decision not to make public the sexual acts she said began when she was six years old." - 17 - The victim testified that it started when she was six but the victim's testimony was not believed by the jury, otherwise the jury would not have acquitted the appellant of those charges. Neither the state nor this court is constitutionally or statutorily at liberty to use testimony that the jury rejected when it acquitted appellant in his first trial on the alleged incidents that occurred from when the victim was six until she was fourteen. It is a violation of appellant's fundamental right of due process to use the testimony of the victim when she was six to apply the element of force. The force necessary for conviction must be the force of what happened in 1989 when she was 14 for which appellant was on trial. I am not persuaded that the victim who slapped her step-father just two months after the alleged rape for disciplining her sister was so afraid that the state became exempt to prove that force was used. Accordingly, circumstances of this case rendered appellant's conviction unfair and a new trial should have been ordered. .