COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60073 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : RODNEY MILLER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 30, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 244307 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES PHYLLIS BROOKS, ESQ. Cuyahoga County Prosecutor 75 Public Square 8th Fl. Justice Center Suite 1210 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- MARGARET K. WEAVER, J.: The defendant appeals from his jury conviction of rape and gross sexual imposition. He complains of prosecutorial misconduct resulting in denial of a fair trial and court error in accepting verdicts of guilty to gross sexual imposition and rape, asserting the counts were allied offenses of similar import, and that the verdicts are against the weight of the evidence. We find such complaints are without merit and the trial court's judgment is therefore affirmed. The defendant was charged with kidnapping, rape, and gross sexual imposition by the state. The evidence presented to the jury consists of the following: the charges arose out of a meeting between the defendant and the victim, his junior high school classmate of some ten to twelve years before. The victim testified that she had no intimate contact with the victim in junior high school. The facts as to how they arranged for a date and where they went are uncontroverted. Defendant, who was twenty-five, was employed in some capacity at The Guard House Restaurant which permitted him to have a key and access to the premises after the close of business. The disputed facts occurred during the second visit by the couple to The Guard House during the date. The victim testified that the defendant unlocked the door, they went in, he re-locked the door behind them, turned on the radio and lights, and went to fix a drink for himself. They began to dance, and the defendant began to fondle her buttocks and breasts. She testified that she warded off his first advances, telling him to stop, and sat down again, at which -3- time they argued about his accusations that she was "stuck up". She testified that he then told her he wanted to have intercourse, which she refused. She testified that he then grabbed her by the wrists and pushed her to the floor where he sat on her with his penis exposed, demanding oral intercourse. She testified that she kept moving to get him off of her, and he let her up for a moment. She testified that he then attempted to have vaginal intercourse with her in a booth, but he was too large to fit, so he restrained her by holding her wrists, and pulled her again to the floor, causing her to bump her head, and completed the vaginal intercourse on the floor during which she sustained rug abrasions to her back. She testified that the defendant told her he was going to the basement to clean up and when he returned, he went to the kitchen and made corned beef sandwiches for them, which she did not eat, and then he took her home. Both the victim and her mother testified that after she got home and told her mother what had happened, the police were called and they came and took her to the hospital where an examination and rape kit were completed. The police also took pictures of her back abrasions, which were entered as exhibits. The defendant took the witness stand in his own behalf and testified that all of the activity was at the mutual suggestion and with the mutual consent of the victim. He testified that she made these claims because she was angry when she learned on the way home that he had lied to her about his living circumstances and children, having told her he lived alone and had no children -4- whereas he lived with the mother of his three children. Three of his friends and his sister also testified primarily as to the fact that the defendant and the victim had gone to Nathan Hale Junior High School together ten or twelve years before. Over the denial of both the victim and her mother, they also testified that the defendant and victim had been going together at that time. The defendant testified that he and the victim had sexual intercourse during that time, at least ten years before, between ten and one hundred times. The defendant was extensively cross- examined by the prosecutor as to his prior convictions and on his admitted lies to the victim concerning his living arrangements and children. During final argument, the prosecutor at various times referred to the defendant (without objection) as a Cretan, a two-legged animal, macho, macho with clothes, clown, fatso, and liar. The jury returned a not guilty verdict as to the kidnapping count, and guilty verdicts as to the rape and gross sexual imposition counts. The Court made the sentence of one year imprisonment on the gross sexual imposition verdict concurrent with the sentence on the rape charge. The defendant complains in his first assignment of error that: THE DEFENDANT WAS DENIED A FAIR AND IMPARTIAL TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY THE PURPOSEFUL AND CONTINUOUS MIS-CONDUCT BY THE PROSECUTOR. -5- In general, the conduct of a prosecuting attorney during trial cannot be made a ground of error unless that conduct deprives the defendant of a fair trial. State v. Papp (1978), 64 Ohio App. 2d 203, 211; State v. Wade (1978), 53 Ohio St. 2d 182, 186. Further, the effect of counsel's misconduct "must be considered in the light of the whole case." State v. Maurer (1984), 15 Ohio St. 3d 239, 266; Mikula v. Balogh (1965), 9 Ohio App. 2d 250, 258. Defendant cites the prosecutor's cross-examination of the defendant as to his prior record, and his twice asked question, "Are we having fun yet?" (at different times), and his reference to the defendant as a Cretan, liar, macho, macho in clothes, two- legged animal, and fatso during his closing argument as the conduct which deprived the defendant of a fair trial. As to the inquiry concerning the defendant's prior record, Ohio Evidence Rule 609 permits credibility impeachment of a witness through prior convictions of felonies. The trial court has broad discretion to limit any questioning of a witness on cross-examination which asks more than the name of the crime, the time and place of conviction and the punishment imposed, when the conviction is admissable solely to impeach general credibility. State v. Amburgey (1987), 33 Ohio St. 3d 115, 117. The questions of the prosecutor as to the prior record of the defendant, who took the stand in his own defense, were essentially limited to the time and the name of the crime, except when he asked him if receiving stolen property and theft were taking something of -6- someone else's and not telling them, each of which was objected to and sustained by the court, and not answered. He also asked him if receiving stolen property was "a very adult crime" to which the defendant responded "yes", and no objection was made. Therefore, we find that the court properly exercised its discretion and held the prosecutor to the limits of Evidence Rule 609 with regard to defendant's prior record, and that such inquiry does not represent prosecutorial misconduct. Further, the prosecutor's twice-asked question, "Are we having fun yet?" was irrelevant and immaterial, but by no means prejudicial. As to the prosecutor's references to the defendant by unflattering epithets, inasmuch as these comments were made by the prosecutor in his closing argument and were never objected to by defense counsel, unless they constitute plain error, we need not consider whether these remarks prejudiced the defendant. State v. Rahman (1986), 23 Ohio St. 3d 146, 153. '"If every remark made by counsel outside of the testimony were grounds for a reversal, comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most experienced of counsel are occasionally carried away by this temptation."' State v. Maurer 1984), 15 Ohio St. 3d 267 quoting Dunlop v. United States 1897), 165 U.S. 486, 498. Although name- calling is unprofessional, the court does not find the epithets used to be inflammatory or sufficiently derogatory to rise to -7- plain error, and therefore the potential prejudice to the defendant of such remarks is not considered herein. The first assignment of error is not well taken. In his second assignment of error, the defendant complains that: THE TRIAL COURT ERRED BY ACCEPTING A VERDICT AS TO BOTH RAPE IN VIOLATION OF SECTION 2907.02(A)(1) OF THE OHIO REVISED CODE AND GROSS SEXUAL IMPOSITION IN VIOLATION OF SECTION 2907.05(A)(1) OF THE REVISED CODE. R.C. 2941.25 provides that: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. Even though rape and gross sexual imposition have been alleged to be allied offenses of similar import in some circumstances, a careful reading of the statute would defy that position. As Chief Justice Celebrezze pointed out in his concurring opinion in State v. Barnes (1981), 68 Ohio St. 2d 13, 15, the statute specifically states, "Where the same conduct by the defendant can be construed to constitute two or more allied offenses...." (Emphasis added.) Clearly, sexual contact, such as in this case, fondling a person in an erogenous zone, is not the same conduct as sexual conduct, which in this case was vaginal -8- intercourse. And even it if were that rape and gross sexual imposition are allied offenses of similar import, this court held in State v. Firman (July 5, 1990), Cuyahoga App. No. 56942, unreported, that they are committed separately with a separate animus as to each when the accused engages in forced sexual contact followed by conversation and then forced sexual conduct. That is essentially what occurred in the instant case as well. At trial, the victim testified that when she and the defendant began to dance, he began to fondle her buttocks and her breasts. The defendant also testified that he fondled the victim's buttocks while they were slow dancing. The victim further testified that she pushed away from him and went back and sat down. After that, the defendant began to demand intercourse. The court therefore finds within the record evidence upon which the jury could decide that there was a separate animus (sexual contact) apart from the rape (sexual conduct), which acts were separated in time, albeit short. The second assignment of error is not well taken. For his third assignment of error, defendant complains: THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This case rests essentially on the credibility of the witnesses. There was no dispute as to the fact of the sexual conduct. The issues were as to consent and force. The victim testified that she told the defendant to stop the touching, refused his sexual advances, and he then forced her to the floor, -9- sitting on her with his penis exposed, holding her wrists, and telling her she would have to engage in fellatio if she would not submit to intercourse, then attempted intercourse in a booth, into which he did not fit, and pulled her again to the floor by the wrists, bumping her head and causing rug abrasions on her back, and forced her to have intercourse. The defendant testified that both the sexual contact and sexual conduct were mutually desired by and with the consent of the victim and she was just angry because she found out he lived with the mother of his three children and had lied to her about those living circumstances. 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 169. In either a criminal or civil case the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. State v. DeHass 91967), 10 Ohio St. 2d 230, 231. There being ample evidence upon which the jury could make a finding of guilty, if believed, the third assignment of error is found to be not well taken. Judgment affirmed. -10- 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. DYKE, P.J., and HARPER, J., CONCUR. MARGARET K. WEAVER* JUDGE (*SITTING BY ASSIGNMENT: JUDGE MARGARET K. WEAVER, SANDUSKY COUNTY COMMON PLEAS COURT) 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .