COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60184 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES HOWARD : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 9, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-226957 JUDGMENT : AFFIRMED IN PART, : REVERSED IN PART AND : REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES JOHN A. BAY, ESQ. CUYAHOGA COUNTY PROSECUTOR 8 East Long Street KAREN L. JOHNSON, ASST. 11th Floor Justice Center - 8th Fl. Columbus, Ohio 43266-0587 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Defendant James Howard appeals from his conviction for one count of rape, one count of attempted rape, and of two counts of gross sexual imposition. For the reasons set forth below, we affirm in part, reverse in part, and remand for resentencing. I. On May 5, 1988, defendant was indicted pursuant to a seven count indictment for three counts of rape, one count of attempted rape, and three counts of gross sexual imposition, in connection with reports that he had abused his stepdaughters. Defendant entered pleas of not guilty and the matter proceeded to a jury trial on September 15, 1989. For its key evidence, the state presented the testimony of each of the alleged victims, their mother, and Cleveland Police Detective Diane Parkinson. The oldest of defendant's stepdaughters, who was sixteen at the time of trial, testified that following her mother's marriage to defendant four years ago, defendant began touching her on her buttocks, and would stand naked in her bedroom doorway. She further stated that in the summer of 1985, defendant grabbed her while she was on her way outside, and touched her breasts. The middle stepdaughter, who was thirteen at the time of trial, testified that in the summer of 1987, while her mother and older sister were at the store, defendant sent her to the basement to help him look for tools. He then said, "Let's do it," grabbed her by the arm, and tried to reach up her skirt. - 3 - The girl pulled back, and defendant said that she could not stop him. As she tried to pull back again, defendant grabbed her, and pushed her down onto a pile of dirty laundry. The girl kicked defendant, and he tightly held her arm and said that if she did not comply, she would be taken away from her mother. He then vaginally raped her. The girl further established that prior to this incident, she and her older sister had accompanied defendant to work. Defendant promised to take them to Burger King when he finished his shift, and they waited for him in his car. The girl fell asleep, and when she awoke, defendant had parked his vehicle under a bridge, and had removed his pants. He then asked the girl if she wanted to "do it." She stated that she did not, and defendant became angry and drove away. Finally, the girl testified that defendant drove her to the area under the bridge several other times. During one such incident, defendant felt her breasts. During another incident, he tried to force her to perform fellatio. The girl pulled back and defendant stated that next time, he would get the youngest stepdaughter to do it. The youngest stepdaughter, who was seven at the time of trial was found competent to testify, and indicated, using anatomically correct dolls, that defendant had orally and vaginally raped her. According to the girl, defendant threatened to take her to "jail home" if she told anyone. - 4 - Charlene Williams, the girls' mother, testified that she married defendant in September 1985. She further established that on October 30, 1987, she overheard her two older daughters talking. She questioned the girls and learned of their allegations, and also learned that the younger daughter was involved. She called the police, and removed her family to a shelter. Thereafter, she took the girls to Cleveland Metropolitan General Hospital for physical examinations, and took them to the Rape Crisis Center for counselling. Williams also testified that she divorced defendant due to the abuse allegations, and that defendant's mother offered her $500 if she would agree not to press charges against defendant. On cross-examination, Williams admitted that she did not attend all of the follow-up appointments which were scheduled for the girls. She further admitted that various documents prepared in connection with her divorce do not indicate that defendant had sexually abused her daughters, but she explained that she did inform her lawyer of these allegations. Det. Parkinson testified that she was assigned to the Sex Crimes Unit of the police department in October 1987, and that she interviewed each of the children. Parkinson further established that she attempted to interview defendant but he refused to appear. Finally, Parkinson opined that the mother had fully cooperated with the police and social workers who were assigned to the case. - 5 - The state subsequently rested, and the defense presented the testimony of Lawrence David Kaye, M.D., social worker Gail Mariunas, defendant's father James Mason, and defendant. Kaye testified that he had examined each of the three girls while a resident at Cleveland Metropolitan General Hospital and that he found no physical evidence of abuse. He admitted on cross-examination, however, that absent infection, a rape which had occurred two to three months before the examinations would not be evident. He further admitted that he could not render an opinion as to whether the children had actually been raped. Mariunas testified that the children were scheduled to receive follow-up psychiatric counselling at the Hannah Pavillion, but Williams cancelled their appointments. Mason next indicated that defendant got along well with Williams' children and that they did not appear to be afraid of him. Finally, defendant testified that Williams became unhappy with him after he lost his job with Ford Motor Company and was not making as much money. He further indicated that seventeen people had lived with the family, and they were neither questioned as suspects nor presented to corroborate the girls' allegations. At the close of the evidence, the jury was instructed on the various charges. With respect to the rape charges, however, the court stated that force was not an element of this offense. (Tr. 446) Defendant was subsequently convicted of gross sexual - 6 - imposition upon the oldest child, and rape, attempted rape and gross sexual imposition upon the middle child. The trial court sentenced defendant to life imprisonment on the rape charge, to be served concurrently with three to fifteen years imprisonment on the attempted rape charge, and two years imprisonment on both gross sexual imposition charges. Defendant now appeals assigning four errors for our review. II. In his first assignment of error, defendant contends that because the trial court instructed the jury that force was not an element of the offense of rape, and the verdict contained no provision for a finding of forcible conduct, the trial court erred in imposing life imprisonment on the rape charge, pursuant to R.C. 2945.75. This contention is well-taken. R.C. 2945.75 provides in relevant part as follows: (A) When the presence of one or more additional elements makes an offense one of more serious degree: *** (2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged. R.C. 2907.02 in turn provides in relevant 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: - 7 - *** (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 the section shall be imprisoned for life. The Committee Comment appurtenant to R.C. 2907.02 further explains: "Rape is a felony of the first degree, except that forcible rape of a victim under age 13 carries a penalty of life imprisonment." (Emphasis added.) In State v. Griffin (Nov. 4, 1980), Franklin App. No. 80 AP- 311, unreported, the Franklin County Court of Appeals held that where the jury considered the defendant's culpability for receiving stolen property, but was not instructed on any of the additional elements which convert the degree of this offense from a first degree misdemeanor to a fourth degree felony, the defendant's subsequent conviction was for the misdemeanor offense. The court explained. "The jury found appellant guilty of receiving stolen property 'as he stands charged in the indictment.' However, the jury had no copy of the indictment and the court did not instruct the jury on the charge as set forth in the indictment. Therefore, we conclude appellant was convicted of receiving stolen property without - 8 - finding additional elements converting the first degree misdemeanor into a fourth degree felony." Id., unreported at p. 4. In State v. Woods (1982), 8 Ohio App. 3d 56, this court considered whether a defendant could be convicted of the felony, rather than misdemeanor offense of receiving stolen property where the verdict forms submitted to the jury neither specified the degree of the offense, nor specified that any aggravating circumstances existed. This court stated: "We do not find State v. Griffin, supra, applicable here because the indictments were read to this jury and the language of the indictments was included in this charge to the jury. The failure of the verdict forms to comply strictly with R.C. 2945.75(A)(2) does not constitute reversible error, when the verdicts incorporate the language of the indictments, the evidence overwhelmingly shows the presence of the aggravating circumstances, and defendants never objected at trial to the form of the verdicts. See State v. Corkran (1965), 3 Ohio St. 2d 125 [32 O.O. 2d 132], paragraph two of the syllabus; State v. Ridgeway (1972), 35 Ohio App. 2d 254 [64 O.O. 2d 281]." Id. at p. 63. In this case, the verdict forms did not contain a provision for a finding of force. In addition, the indictments were neither given nor read to the jury as the court explained: "Now, you do not have the indictments themselves. The paper itself is not submitted to you. There's a lot of legalees [sic] on the indictment itself, which prompts judges not to send it to the jury. Rather, we will explain the elements of each of the two offenses." (Tr. 441) - 9 - Moreover, the court specifically instructed the jury that "there's no requirement that force be part of the act or that the act is compelled." (Tr. 446) By application of the foregoing, therefore, we conclude that defendant was improperly sentenced to a term of life imprisonment on the rape offense because there is absolutely no finding of force nor a basis for inferring that the jury considered this aggravating circumstance. Accordingly, defendant's sentence for this offense must be reversed, and the cause remanded for resentencing on the rape charge. III. Defendant next contends that there was a "lack of temporal specificity" in the indictments which prejudiced him in his defense. This contention lacks merit. Ordinarily, precise times and dates are not essential elements of offenses, and the failure to provide times and dates in an indictment will not alone provide a basis for dismissal of the charges. State v. Sellards (1985), 17 Ohio St. 3d 169, 171. A certain degree of inexactitude of averments, where they relate to matters other than elements of the offense, is not per se inadmissible or necessarily fatal to a prosecution. Id. Such inexactitude is often present where the child victim, due to tender years, does not have the temporal memory of an adult and has problems remembering exact time. Cf. State v. Barnecut (1988), 44 Ohio App. 149, 151. - 10 - To constitute error, moreover, the absence of specifics must truly prejudice the accused's ability to fairly defend himself. State v. Sellards, supra, at 177. Prejudice has been recognized where the statute of limitations is at issue, cf. State v. Barnecut, supra, where the age of the child is at issue, State v. Gingell (1982), 7 Ohio App. 3d 364, 368, and where the accused is indisputably elsewhere during part but not all of the intervals of time alleged in the indictment. Id. In this case, the indictments alleged that defendant committed gross sexual imposition throughout the time period from 1985 through 1987. The indictment further alleged that defendant raped the middle child in the summer of 1987. Accordingly, we cannot say that the time periods alleged are fatal to the prosecution. Moreover, defendant did not object to the dates until shortly before closing arguments, (Tr. 381) and neither the statute of limitations, the girls' ages, nor defendant's presence were put in issue here. Therefore we do not recognize any prejudice to defendant. IV. Defendant next argues that his convictions are against the manifest weight of the evidence. Issues of credibility and the weight to be given evidence are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In addition, the following guidelines for reviewing challenges to the manifest - 11 - weight of the evidence were promulgated in State v. Mattison (1985), 23 Ohio App. 3d 10, 14: "'"1. Knowledge that even a reviewing Court of Appeals is not required to accept as true the incredible. *** "'"2. Whether evidence is uncontradicted, *** "'"3. Whether a witness was impeached, *** "'"4. Consideration of what was not proved, *** "'"5. The certainty of the evidence, *** "'"6. The reliability of the evidence, *** "'"7. The extent to which any of the witnesses may have an interest to advance or protect by their testimony, *** "'"8. The extent to which the evidence is vague, uncertain, conflicting, fragmentary, or not fitting together in a [logical] pattern, ***."'" [Citations omitted.] Applying the foregoing, we hold that the convictions are not against the manifest weight of the evidence as the older victim credibly, certainly and reliably established that defendant committed gross sexual imposition by grabbing her and touching her breasts. The middle victim credibly, certainly and reliably established that defendant raped her in the basement of their home, attempted to rape her under the bridge, and committed gross sexual imposition upon her. Further, while defendant relies upon the absence of medical evidence, we note that the gross sexual imposition and attempted rape charges as alleged would not result in physical evidence. Similarly, the rape as alleged did not result in deposition of - 12 - semen. Finally, Dr. Kaye refused to state that no abuse had occurred and further explained that a rape from two to three months prior to the exam, would not, in the absence of disease, be evident. Accordingly, the absence of medical evidence is clearly insufficient to upset the verdicts. V. For his final assignment of error, defendant claims that he was denied effective assistance of counsel because his trial counsel did not object to the dates set forth in the indictment, and failed to object to imposition of the life sentence. In order to obtain a new trial for ineffective assistance of counsel, the defendant must demonstrate that (1) his counsel's performance was seriously deficient, and (2) the result would probably have been different had his counsel performed competently. Strickland v. Washington (1984), 466 U.S. 668, 687; State v. Post (1987), 32 Ohio St. 3d 380, 388. As to counsel's failure to object to the dates set forth in the indictments, we note that the defense at no time placed in issue the statue of limitations, the ages of the girls, or defendant's whereabouts as the defense was a straight denial, with emphasis upon the lack of medical evidence. Accordingly, we cannot conclude that defendant suffered prejudice in the preparation of his defense, and we therefore cannot deem trial counsel ineffective. - 13 - As to trial counsel's failure to object to the imposition of a life sentence, the error has obviously been preserved nonetheless pursuant to Crim. R. 52, and has been rectified by this court. Accordingly, we ascertain no prejudice and therefore cannot conclude that counsel was ineffective. Defendant's fourth assignment of error is overruled. Judgment affirmed in part, reversed in part and remanded for resentencing. - 14 - It is ordered that appellant and appellee equally share the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part, any bail pending appeal is terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J., and *ECONOMUS, J., CONCUR. JUDGE JOHN F. CORRIGAN (*Judge Peter Economus, Mahoning County Common Pleas Court, Sitting by Assignment.) 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. .