COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60072 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD INGRAM : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 9, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 248312 JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 2000 Standard Building BY: FRANK GASPER, ESQ. 1370 Ontario Street ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant, Richard Ingram, was indicted on ten counts of R.C. 2907.02, rape by force or threat of force of a boy under the age of thirteen, was convicted of four counts and sentenced to four concurrent life terms. On appeal appellant assigns three errors for review. I THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL OTHER ACTS EVIDENCE TO BE HEARD BY THE JURY. Appellant contends that he was prejudiced (1) when he was cross-examined concerning his alleged theft of money from the boy's mother and his alleged failure to emotionally and financially support his daughter, (2) by the testimony of the boy's mother that appellant stole from her and (3) by a reference in appellee's closing argument to the alleged theft. (Appellant's brief at 9.) During direct examination of the boy's mother she stated that appellant stole money and various other items. There was no objection. On cross-examination appellant was questioned at length about his alleged theft and about his behavior with women and his daughter. During closing arguments the prosecutor emphasized appellant's alleged theft and bad character. Appellee makes no effort to argue that the testimony in question qualified as admissible other acts testimony under Evid. R. 404(A), (B) and 405 and it clearly was not. However, it does contend that the testimony was permitted by Evid. R. 608. Appellee's brief states as follows: Specific instances of the conduct of a witness, for the purpose of attacking the issue of credibility, may not be proved by extrinsic evidence unless in the - 3 - discretion of the Court, if clearly probative of the issue of truthfulness on cross-examination of the witness concerning his character for truthfulness. State v. Leuin 11 Ohio St. 3d 172 (1984). (Appellee's brief at 4.) (Emphasis added.) On the contrary, Leuin cited Evid. R. 608(B) and held as follows: "Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." From the foregoing rule, it is apparent that specific instances of conduct, relating only to the credibility of a witness, may not be established by extrinsic evidence. ... That is not to say, however, that the state was prohibited from questioning Williams on cross- examination as to these specific instances of conduct. Evid. R. 608(B) allows, in the court's discretion, cross-examination of specific instances of conduct 'if clearly probative of truthfulness - 4 - or untruthfulness.' Nevertheless, if the answers received on cross- examination do not satisfy the examiner, it is said that the examiner is bound by or 'stuck' with the responses. See, e.g., State v. Gardner (1979), 59 Ohio St. 2d 14, 19. Id. at 174. The trial court has no discretion to admit extrinsic evidence of specific instances of the conduct of a witness, for the purpose of attacking credibility, other than convictions as provided in Evid. R. 609. Id. The trial court's discretion applies to allowing cross-examination on specific instances of the conduct of the witness if clearly probative of truthfulness or untruthfulness. Id. On direct examination the boy's mother testified, without objection, that appellant stole checks, money, a VCR, tapes and jewelry. (Tr. 62.) Evid. R. 608(B) is applicable because this testimony was presented by appellee to attack appellant's credibility (see appellee's brief at 4-5) rather than show that he acted in conformity with these acts. Evid. R. 404 is not applicable. This testimony was not permitted under Evid. R. 608. It is neither extrinsic evidence of a conviction or cross- examination. The admission was error. The prosecution was also improperly allowed to cross-examine appellant regarding specific instances of less than admirable conduct regarding his daughter and other personal relationships. These instances of conduct were not "clearly probative of - 5 - truthfulness or untruthfulness" and, in fact, had nothing to do with truthfulness or untruthfulness. Appellant did not raise the use of the boy's mother as a rebuttal witness. Appellant's brief refers only to her testimony that appellant stole from her and cites the transcript at pgs. 62 and 129. (Appellant's brief at 9.) Those pages are testimony of the mother (when she testified as part of the state's initial presentation of witnesses) and of appellant, respectively. However, even if a typographical error occurred and appellant meant to refer to the rebuttal testimony, we find error but not prejudicial error. The use of the boy's mother on direct and on rebuttal to testify to appellant's alleged dishonesty was an impermissible use of extrinsic evidence of specific instances of the conduct of a witness. However, there were no objections to the testimony of the child's mother or the cross-examination of appellant concerning his personal life. An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Williams (1977), 51 Ohio St. 2d 112 (paragraph one of the syllabus). Crim. R. 52(B) allows this court to notice "plain" errors or defects not brought to the attention of the trial court but only if they affect substantial rights. - 6 - Notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St. 2d 91 (paragraph three of the syllabus). Appellee's cross-examination of appellant regarding the alleged theft was properly allowed and appellant's objection was correctly overruled. Leuin stated that Evid. R. 608(B) allows, in the court's discretion, cross-examination on specific instances of conduct if clearly probative of truthfulness or untruthfulness. Leuin, 11 Ohio St. 3d at 174 (witness cross- examined about her receipt of gifts from appellant, a married man). See also State v. Lundy (1987), 41 Ohio App. 163, 169 (allowing cross-examination of witness regarding possession of 1 credit cards and a check). 1 Contra State v. Rodriguez (1986), 31 Ohio App. 3d 174 (criminal behavior, other than conviction, improper basis for attack upon credibility). However, if a conviction resulted, that fact could have been proved by extrinsic evidence and the question would be unnecessary. Evid. R. 609. Rodriguez states that credibility may be attacked by evidence of a conviction or of character for untruthfulness but Evid. R. 609 prohibits evidence of character for truthfulness or untruthfulness. Cross- examination regarding character for truthfulness or untruthfulness is permitted. Leuin citing Evid. R. 608(B). Rodriguez concluded that the cross-examination is the "mischief which Evid. R. 608 was designed to prevent. State v. Leuin ...." However, Leuin was talking about attack by extrinsic evidence, not attack by cross-examination, when it spoke of the mischief the rule was designed to prevent. Leuin, 11 Ohio St. 3d at 174. - 7 - Appellant also argues that in closing argument the prosecutor referred to the improper testimony about the alleged theft and failure to support. A reference to the theft as fact was improper because appellant denied it and the prosecutor is stuck with the answer received. State v. Leuin (1984), 11 Ohio St. 3d 174. We note that there was no objection but find plain error when there was a manifest miscarriage of justice. Undoubtedly, the prosecutor's argument was inappropriate. You heard not only D'Onta, who was one of the witnesses to this crime, ... and the other was Richard Ingram. ... He denied one thing --oh, of course, he denies writing the checks that came in. You heard him. You heard him describe his lifestyle. ... You have seen this man, and you know the kind of man he is, too. You are going to have to judge credibility of these statements. ... Ladies and gentlemen of the jury, the State of course takes a different position on the testimony of Mr. Ingram. I'm going to call him a liar. ... He's a liar. He's the most dangerous kind of liar, as I'm sure you experienced. ... He won't even admit that he had a drug problem. ... [H]e wants you to believe ... that he's not on drugs or didn't have a drug problem. The many relationships that he had, you know -- the evidence shows this guy is a gigolo, but you know what? He's worse than a gigolo. he's a parasite. He attaches, - 8 - sucks, and moves on. Look at his pattern. He fathers a child, goes and lives with another woman. He leaves that relationship, finds another relationship and then another one on top of that. He doesn't even look back. He hasn't even seen his child in over a year and has made no attempt in the year to talk to Nancy Martin. You can judge his credibility the same as you can any other. You can use his lifestyle .... Who else has had an opportunity to talk with this child and make an assessment? Detective King. ... He found him to be frank, forthright, detailed in his responses. That is somewhat inappropriate for a child of that age. He believed him. (Tr. 173, 180-184.) Undoubtedly, the state attempted to tip the scale in favor of conviction by besmirching appellant's character and by stating that the detective believed the boy when in fact a question to that effect was not permitted. The alleged "drug problem" had nothing to do with the case. The theft was denied and off limits thereafter. The name-calling is not only unprofessional but introduces a basis for conviction that is wholly inappropriate: appellant's alleged bad character. His behavior with his girlfriends and daughter was not relevant and in fact is an inappropriate basis because it tends to produce precisely the result intended by the prosecution. A jury might convict appellant for being a bad person even if a reasonable doubt of - 9 - his guilt of the charges remained. We take this behavior on the part of the prosecution very seriously. Normally, "[t]he test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substantial rights of the accused." State v. Lott (1990), 51 Ohio St. 3d 160, 165. However, appellant failed to object to the comments in question. "Notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Landrum (1990), 53 Ohio St. 3d 107 (regarding prosecutorial misconduct). "[T]he prosecution is entitled to a certain degree of latitude in summation, ...." State v. Liberatore (1982), 69 Ohio St. 3d 583, 589. ... However, the United States Supreme Court had this to say about the role of a United States Attorney: "[H]e is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor - indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. - 10 - United States (1935), 295 U.S. 78, 88. These comments apply with equal force to Ohio prosecuting attorneys. Prosecutors must avoid insinuations and assertions calculated to mislead. They may not express their personal beliefs or opinions regarding the guilt of the accused, and they may not allude to matters not supported by admissible evidence. Lott, 51 Ohio St. 3d at 166. The prosecution did call appellant a liar and blatantly fashioned his argument to have the jury convict appellant because of his lifestyle. Convictions must be based on the evidence rather than moral judgments of others' perceived failures. Attacks on credibility are limited by the evidence rules and the state improperly cross-examined appellant on matters that were not probative of truthfulness or untruthfulness: drug addiction, joblessness, promiscuity, a failure to support and nurture his daughter, and relying on girlfriends for his support. It also improperly presented extrinsic evidence of specific instances of conduct when it elicited testimony accusing appellant of theft. [A]s then Justice Rehnquist noted for the United States Supreme Court, "[t]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips (1982), 455 U.S. 209, 219. State v. Johnson (1989), 46 Ohio St. 3d 96, 102. - 11 - [G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and the Constitution does not guarantee such a trial. [I]t is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless including most constitutional violations. United States v. Hasting (1983), 461 U.S. 499, 508- 509, certiorari denied (1985), 469 U.S. 1218. Lott, 51 Ohio St. 3d at 166. We condemn the tactics of the prosecutor and conclude that prosecutorial misconduct permeated the trial and affected its fundamental fairness. See State v. Smith (1984), 14 Ohio St. 3d 13. Assignment of error No. I is sustained. II THE TRIAL COURT ERRED BY ALLOWING AN INVESTIGATOR TO GIVE, THROUGH INNUENDO, HIS OPINION OF THE VERACITY OF A CHILD DECLARANT'S STATEMENTS. In State v. Boston (1989), 46 Ohio St. 3d 108 the Ohio Supreme Court stated, "An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant." In Boston the experts testified that in their opinions the child had been sexually abused and that the child had not fantasized her abuse and had not been programmed to make accusations against her father. The court held that an expert's - 12 - opinion testimony on whether there was sexual abuse would aid jurors and was admissible but that the testimony that the child had not fantasized the abuse or been programmed in effect declared that the child was truthful and the admission of that testimony was improper, egregious, prejudicial and reversible error. Id. at 128. Therefore an expert may testify that it is his opinion that a victim was abused but not that it is his opinion that the child has not fantasized the alleged abuse or been programmed to claim abuse (i.e. that in the expert's opinion the child is telling the truth). Boston's holding was approved, applied and followed in State v. Moreland (1990), 50 Ohio St. 3d 58 which held that "An expert may not testify as to the expert's opinion of the truth or falsity, or accuracy or inaccuracy, of the statements of a child declarant." Id. at syllabus. Here, Detective Gregory King testified as follows: [The child's] responses were direct, and what he was speaking on, he seemed to have an intimate knowledge on the kind of thing he was talking about. ... His responses were appropriate for a child of that age that he been sexually abused. He knew certain types of activities that an eleven or ten year old who had not been exposed to them wouldn't have known. ... He spoke of things that would have been consistent with the type of sexual assault he was alleging to have happened. - 13 - (Tr. 83-84 and 89.) Appellant objected to only the first statement. An objection was sustained to the question "Did you believe [him]?" (Tr. 93.) Detective King did not testify, in effect, that the child was telling the truth or not fabricating the story. King first stated that the child's answers were direct and indicated a knowledge of sexual conduct. That testimony did not concern the child's veracity. King then testified that the child's statements were appropriate for such a victim and were consistent with a victim of that type of an assault. That was cagily put but does not exclude the possibility of fabrication. Finally, King said that the child knew things he would know only if he'd been exposed to them. That could still mean that he observed them and fabricated the scenario. No doubt the prosecutor hoped that the jury would infer from King's testimony that King believed the child but a jury could infer the same thing from an opinion that sexual abuse occurred and that kind of testimony is permitted by Boston. We note that the prosecutor's attempt to have King testify to whether or not he believed the child was defeated when the objection was sustained. Assignment of error No. II is overruled. III THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably - 14 - conclude that all of the elements of an offense have been proved beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169 (at syllabus). In considering the claim that the conviction was against the manifest weight of the evidence ... [t]he 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 in which the evidence weights heavily against the conviction. State v. Martin (1983), 20 Ohio App. 3d 172 (at paragraph three of the syllabus.) In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines that may be taken into account by a reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. Whether the evidence is uncontradicted; 3. Whether a witness was impeached; 4. What was not proved; - 15 - 5. The certainty of the evidence; 6. The reliability of the evidence; 7. Whether a witness' testimony is self-serving; 8. Whether the evidence is vague, ... conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App. 3d 10 (at syllabus). The boy testified as follows: appellant moved in with the boy and his mother and was initially permitted to discipline the boy (Tr. 13-14.) One night appellant whipped him with a belt while the boy was naked and then told him to lay down. (Tr. 16- 17.) Appellant spread the boy's legs and put his mouth on the boy's penis. (Tr. 17.) The boy was crying and tried to make appellant stop but appellant hit him with the belt. (Tr. 19.) On the next occasion, a Friday, the same events occurred. (Tr. 21- 22.) On yet another occasion, appellant beat him and removed the boy's clothes, "made me suck his and then he sucked mine" and then told him not to tell his mother. (Tr. 23-23.) The boy's mother testified that during this time period the boy ran out of school crying and wouldn't say anything. (Tr. 70.) Appellant denied everything and alleged that the boy had knowledge of sexual conduct because the boy had watched an x- rated tape that his mother had rented. (Tr. 119.) The mother testified that there had been no x-rated tapes in her home "that [she] knew of." (Tr. 62.) The boy said that his mother had one - 16 - "bad" movie but denied that he watched it. (Tr. 39.) It's not clear whether the "bad" movie was x-rated or just not for children. Appellant contends that the verdict should be reversed because the boy "did not mention the beatings or assaults until he was caught in a very compromising position with a seven-year old girl." (Appellant's brief at 16.) The boy testified that he and a girl were having sex. (Tr. 28.) A. The girl's mother called the police and then she started threatening me about rape, and stuff, and I ain't raped the girl. It was voluntary, though. She volunteered. Q. Did you have a conversation with your mother at that time? A. No. She came in and she was mad at me. Then I told her about what Richard had done to me. Q. Why did you tell her about Richard at that point? A. Because I felt it was the time to tell her because I was getting threatened by her about raping and everything. (Tr. 29.) This testimony undermines the boy's credibility but the jury heard the testimony and acquitted on six counts and convicted on four. We cannot say that the verdict is against the manifest weight of the evidence. Assignment of error No. III is overruled. We reverse the judgment and remand for a new trial due to improper evidence of conduct, improper cross-examination and prosecutorial misconduct. The record of this trial is troubling. The jury had the very difficult task of determining whether it - 17 - believed the appellant or the boy who accused appellant only after being found to have had sex with a little girl and being threatened with death or jail. A dispassionate weighing of the evidence is beyond the means of all but the saintly few when bombarded with the character assassination presented by the prosecutor in the guise of evidence, cross-examination and argument. No matter how heinous the crime of which he stood accused the appellant was entitled to a fair trial. We regret that the actions of the prosecutor require that we order a new trial. Judgment reversed and cause remanded for a new trial. - 18 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. *WEAVER, J., CONCURS. HARPER, J., CONCURRING IN JUDGMENT ONLY AS TO THE DIS- POSITION AND DISSENTING IN PART (SEE ATTACHED OPINION) PRESIDING JUDGE ANN DYKE *(Sitting by Assignment: Judge Margaret Weaver of the Sandusky County Court of Common Pleas.) 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 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. 60072 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION RICHARD INGRAM : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 9, 1992 HARPER, J., CONCURRING IN JUDGMENT ONLY AS TO THE DISPOSITION AND DISSENTING IN PART: I concur in judgment only as to the majority's disposition of this case and respectfully dissent from its rulings on appellant's second and third assignments of error. Specifically, I disagree with the positions that 1) Detective King's testimony was not improperly admitted pursuant to State v. Boston (1989), 46 Ohio St. 3d 108, and State v. Moreland (1990), 50 Ohio St. 3d 58; and 2) the verdict is not against the manifest weight of the evidence. - 2 - In Boston, syllabus, the Supreme Court held that an expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant. The court stated: "*** in child abuse cases, experts, properly qualified, might include a priest, a social worker, or a teacher, any of whom might have specialized knowledge, experience and training in recognizing occurrences of child abuse. "The question that arises *** is whether the testimony *** is admissible, then the question becomes whether all or just part of such testimony should have been admitted." Id., 119. Generally, expert testimony in child abuse cases is proper, id., 120, subject to certain restrictions. In Boston, supra, 128, expert opinion testimony that abuse occurred was held admissible where one expert conducted a physical examination of the alleged victim, noting physical manifestations of abuse, and a second expert conducted a psychological examination, noting behaviors which are typical of abuse victims. Id., 128. Detective King testified that D'Onta's responses to his investigative questions were consistent with a victim of sexual abuse. He further testified that D'Onta would not have so responded absent an exposure to sexual abuse. The only conclusion to reach from this testimony was that D'Onta was a 2/ Detective King qualified as an expert witness for purposes of applying State v. Boston (1989), 46 Ohio St. 3d 108. As a member of the Sex Crimes and Child Abuse Unit, he attended several seminars on modern investigative techniques in sexual abuse pertaining to children and adults, in-house seminars, classes given by police academy and supervisory personnel, and participated in battered women and battered children workshops and seminars. - 3 - victim of sexual abuse. However, in this case, unlike in Boston, supra, there was no medical testimony on either physical or psychological manifestations of sexual abuse. No facts were offered to support the testimony that abuse occurred thereby 3/ violating Evid. R. 705. Accordingly, Detective King's testimony with regard to the existence of sexual abuse was erroneously admitted into evidence. See, State v. Whitt (Oct. 3, 1991), Cuyahoga App. No. 59077, unreported. Appellant's failure to object to this portion of Detective King's testimony does not sway my opinion. The allowance of this testimony amounted to plain error, as it affects "the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson (1936), 397 U.S. 157, 160. See, e.g., State v. Stover (1982), 8 Ohio App. 3d 179. A basic issue in this case was whether D'Onta was a victim of sexual abuse. Allowing a witness to testify that there was sexual abuse without physical or psychological evidence negatively affects the judicial proceedings. Detective King also improperly testified as to the credibility of D'Onta. An expert may not testify as to the expert's opinion of the veracity of a child declarant. Boston, supra, 129. In reading the detective's testimony, he states that D'Onta's responses were direct and that he seemed to have intimate knowledge of the incidents as alleged. As already 3/ See, Staff Notes to Evid. R. 705. ("Rule 705 requires disclosure of the underlying facts or data prior to the rendition of the expert's opinion.") - 4 - stated, the detective's testimony discloses that D'Onta would only have gained the intimate knowledge that he expressed if he were a victim of sexual abuse. The detective's only basis for determining that there was sexual abuse was the interview he had with D'Onta. Even though Detective King did not expressly state that he found D'Onta to be credible, the jury could only infer that that was the case. If the detective did not believe D'Onta, he would not have concluded there was sexual abuse. Prosecutor Gasper verified this inference during closing argument. Mr. Gasper stated in reference to Detective King: "He found him to be frank, forthright, detailed in his responses. That is somewhat inappropriate for a child of that age. He believed him." These remarks, when considered in light of the improper opinion evidence that abuse actually occurred, preclude me from finding the introduction of Detective King's statements as harmless beyond a reasonable doubt. See, Whitt, supra. I would have sustained this assignment of error. Appellant refers to the following facts as questioning the validity of his convictions. First, appellant denied the charges. Second, there was no corroborating witnesses or evidence. Third, D'Onta never expressed discomfort with appellant's presence in his mother's home. Fourth, appellant was not living with Ms. Martin for at least one year prior to the accusations. Fifth, D'Onta never complained of sexual abuse until found in a compromising position with a seven-year-old girl, when he himself was threatened with accusations of rape. - 5 - Finally, D'Onta could have been exposed to x-rated video tapes which would allow him to implicate appellant by describing acts seen in the tapes. The jury was forced to choose between two witnesses. Should they believe an almost thirteen-year-old child who describes events which took place when he was ten years old and the prosecutor references a police officer's belief in the child? Or should the jury believe an adult male who is painted as a social parasite when the prosecution instructed them "to protect our one witness was more truthful than the other. I am not saying the appellant is or is not guilty. I am, however, saying, that the game intentionally created by the state stole the jury's function as a fact-finding body and prohibited it from ascertaining the credibility of the witnesses. The majority clearly recognized this problem by stating, "A dispassionate weighing of the evidence is beyond the means of all but the saintly few when bombarded with the character assassination presented by the prosecutor in the guise of evidence, cross-examination and argument." (Emphasis added.) However, the majority proceeds to freely conclude that the verdict is not against the manifest weight of the evidence. In light of its statement that only a saintly few could dispassionately weigh the evidence, I am perplexed by the majority's conclusion and would have sustained appellant's third assignment of error. .