COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60265 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION TYRONE SAMILTON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-247278 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN B. GIBBONS, ESQ. Cuyahoga County Prosecutor 2000 Standard Building HENRY J. HILOW, ESQ. 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: I. Appellant, Tyrone Samilton (Tyrone), was indicted by the Cuyahoga County Grand Jury in a two-count indictment. Appellant was charged on count one for rape, in violation of R.C. 2907.02(A)(3), and on count two for gross sexual imposition, in violation of R.C. 2907.05. On July 13, 1990, appellant was convicted by the jury on all counts. The jury also determined that the victim of the crime was less than 13 years of age. The court sentenced appellant to an indefinite term of life imprisonment on count one and two years on count two, plus costs. The sentences are to run concurrently. Appellant appeals as of right and for the reasons that follow, we reverse and remand for a new trial. II. Sandra Byrd testified that she is the mother of Roger Jackson (the victim in the within case). She resides at 14028 Euclid Avenue in the City of East Cleveland, Ohio. She testified that Roger was born on October 26, 1984, and was five years old at the time of trial. She is a very close friend of Patricia Samilton (defendant's sister). They have been friends for more than six years and she visits Patricia at least three times a week. She knew Tyrone from frequent visits to Patricia because he lived in the same house with his sister, Patricia. Ms. Byrd testified that she visited Patricia at about 1:00 p.m. on October 10, 1989, with her two children, Roger and Tiara. She testified that shortly after they arrived at the house Roger went upstairs to the bathroom. - 3 - "He came running downstairs, and I said Roger what's the matter. And Tyrone said I told Roger to come down stairs. "And Roger looked real funny and I said Roger what's the matter. He didn't say nothing. Tyrone say 'I said I just told him to come downstairs.' "And then when we got home, he said, 'Mother, Tyrone lied to you.' I say [sic] what you mean. He said, 'Tyrone was telling me to come to the bathroom so he could act nasty with me.' What you mean Roger. Again, he said Tyrone -- "He said, 'Tyrone wanted to act nasty with me.' He said yesterday when we was down -- which he kind of get confused with yesterday. He meant that Saturday. He was down there. He said, 'Tyrone had me in the basement and he pee'd in my mouth.'" Ms. Byrd testified that she called and spoke to Tyrone who denied the allegation. She went to Tyrone's home immediately after the conversation and was told that he had already left. Ms. Byrd also testified that Roger told her that Tyrone told his sister, Tiara, to pull her pants down. Ms. Byrd wanted Tyrone to get help. She was told to meet Tyrone and his family at the Glenville Health Center. Tyrone's mother was to make an appointment for him. Ms. Byrd went to the Health Center only to discover that no appointment was made and nobody from the family including Tyrone came to the Health Center. After the doctor confirmed that Tyrone never appeared at the Health Center, she went to the Cleveland Police Department and talked with Detective Zbydniewski. The following day she took Roger to Rainbow Babies & Children's Hospital. Ms. Byrd further testified that she had never had a romantic interest in Tyrone. - 4 - Roger Jackson testified that he is five years old. He identified Tyrone in court. He stated that Tyrone "pee-pee'd. He pee'd in my mouth." He stated that Tyrone also touched him on his "butt". He did not tell anybody. The prosecutor asked him if he saw Tyrone do anything to his sister, to which he answered in the negative. The prosecutor asked again, "did you ever see him pull your sister's pants basement when Tyrone "pee-pee'd" in his mouth. Roger further testified on direct after he was asked by the prosecutor, "Q. Did you tell him anything when he put his pee-pee in your mouth and pee'd in your mouth? "A. No. "Q. Did you tell him anything about what a bathroom and toilet was for? "A. Yes. "Q. What did you tell him, Roger? "A. I wasn't a bathroom." Roger testified on cross-examination that the prosecutor talked to him prior to trial about what to say. Detective James Plent of the Cleveland Police Department testified that he took the complaint from Ms. Byrd. She came into the police station and alleged that her son was sexually molested by Tyrone Samilton. He took the information and forwarded it to the Sex Crime Unit. Detective Plent did not talk to the victim. - 5 - Detective Andrea Zbydniewski of the Cleveland Police Sex Crime Unit testified that she interviewed the victim. He told her that Tyrone "brought me in the basement so no one would see. He put his thing in my mouth. Tyrone pee'd in my mouth. He was nasty or being nasty." Detective Zbydniewski testified that the victim was alone with her when he made the statements. She further testified that she read Tyrone his constitutional rights. Tyrone told her that he was upstairs sleeping and that he had another girl over and Ms. Byrd was not happy about that. Natalie Meszaros testified that she is the director of medical records for the Rainbow Ambulatory Service at University Hospitals. She testified that her department responded to the state's subpoena for records indicating that the hospital did not have any record of the victim in relation to the incident but later found the record. Defense witness Clara Watkins testified that she has known Tyrone for a long time. She did not believe that the sexual molestation allegation against Tyrone was true. She acknowledged on cross-examination that she did not know that Tyrone used angel dust and marijuana. The prosecutor asked her if her opinion of Tyrone would change if she knew that Tyrone used drugs, to which she answered in the negative. The prosecutor further asked Ms. Watkins on cross-examination: "Q. Mrs. Watkins, have you heard, or are you aware of the fact that the Defendant molested Maxine's child, Sharad? "A. No. - 6 - "Q. -- would your opinion of the Defendant change if you heard something like that? "A. No." Ann Samilton testified that she is Tyrone's mother. She lived with her daughter Pat, Larry, Anthony, Tyrone and her three grandchildren. She testified that Tyrone overdosed on angel dust 15 years prior to the trial when he was in high school. She was not aware of Tyrone molesting Maxine's child. She testified that as a result of the overdose, Tyrone was in the hospital for five years. She never saw him use any drugs in fifteen years. She has known Ms. Byrd for some time and she frequents her home. She testified that Tyrone likes to play with the kids outside. She knew that Tyrone could not molest any child. She testified that nobody goes to the basement to play including her grandchildren. She admitted that Ms. Byrd wanted Tyrone to seek medical attention before she called the police. Maxine Samilton testified that she is Tyrone's sister. She was present when Ms. Byrd called to talk to Tyrone about Roger's allegation. She has four children, two girls and two boys. She had never had any problem with Tyrone concerning molestation of her children. She leaves her children with Tyrone and believes that the allegation of sexual abuse of Roger was a lie. Ms. Samilton testified that Roger likes to tell lies and her mother never disciplined him. She saw Roger having sex with another child in the house and when Ms. Byrd was told about it she brushed it off and told the children to continue playing. - 7 - Ms. Samilton denied threatening Ms. Byrd. She testified that Ms. Byrd called her many times after the incident. Patrice Samilton testified that she is six years old. She testified that Tyrone is her uncle. She plays with Roger everyday. She testified that Roger is "bad". She stated that Roger does not tell the truth. She testified that Roger has said in the past that Tyrone beat him and it was a lie. She knew that Tyrone did not molest Roger because she was upstairs with him at the time of the incident. She testified on cross-examination that she never went to the basement and that Tyrone never scared Roger with the cats in the basement. She denied telling Detective Zbydniewski that Tyrone scared Roger or peeped when Roger was in the bathroom. Robert Robinson testified that he is Tyrone's brother-in- law. He lived with Patricia in the same house as Tyrone. Tyrone was upstairs when Ms. Byrd came to talk to him about the allegation. He testified that they were never allowed to go to the basement. He testified that Ms. Byrd treated the family very friendly and wanted Tyrone to get help. Patricia Samilton testified that she is Tyrone's sister. She and Ms. Byrd were very close. She did not believe that the incident occurred. When Ms. Byrd told her about the incident she wanted to talk to Roger but Ms. Byrd would not allow it. She testified that Roger, her daughter, and another girl, Candice, were upstairs with Tyrone when Tyrone instructed them to go back down the stairs. She acknowledged that Tyrone overdosed on angel - 8 - dust when he was in high school but denied that he has any drug or alcohol problem. Detective Zbydniewski testified on rebuttal that Patrice made all the statements to her that she denied on rebuttal. She testified that the hospital eventually told her over the telephone that there was a record of Roger's visit. III. Appellant's assignments of error are as follows: "1. The Trial Court committed Plain Error and denied the defendant-appellant his right to Due Process of Law when the Trial Judge commented adversely in open Court to the Jury on the defendant's choice to exercise his Constitutional Right not to testify on his own behalf. "2. The Trial Court erred and abused its discretion by allowing the State to reopen its case in order to present the medical records. "3. The Trial Court erred and denied the defendant- appellant his right to Due Process of Law when selected portions of the Trial testimony of Roger Jackson were reread to the Jury during their Deliberation Process. "4. The Trial Court erred and denied the defendant his right to Due Process of Law by allowing confusing, misleading and prejudicial rebuttal testimony on collateral matters. "5. The Trial Court erred by failing to dismiss the Indictment charging a violation of O.R.C. 2907.02, Rape, on the basis of the insufficiency of the evidence. "6. The Trial Court improperly sentenced Tyrone Samilton to the penalty of Life in Prison for a violation of O.R.C. 2907.02." Appellant, in his first assignment of error, argues that the trial court erred to his prejudice by commenting on his failure to testify. Appellant specifically argues that his case was prejudiced by this comment made by the trial court: - 9 - "Did he take the stand? I don't remember it? Okay." Appellant's argument has no merit. The United State Supreme Court in Griffin v. California (1965), 380 U.S. 609, held that: "If the words 'Fifth Amendment' are substituted for 'act' and for 'statute' the spirit of the Self- Incrimination Clause is reflected. For comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice,' Murphy v Waterfront Comm'n, 378 US 52, 55, 12 L ed 2d 678, 681, 84 S Ct 1594, which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt or failure to testify as to facts peculiarly within the accused's knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. People v Modesto, 62 Cal 2d 436, 452-453, 398 P2d 753, 762, 763. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another." The Griffin court concluded: "We hold that the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Thus, the Fifth Amendment right of protection against self- incrimination forbids the prosecution and the court from commenting on an accused's silence or failure to take a witness stand because of an unwarranted inference that the jury can draw from such comments. However, in the within case the trial court's comment must be viewed from the circumstances upon which it was made. - 10 - Appellant's trial counsel, in his closing argument, had the following to say: "MR. WATSON: Yes, your Honor. "Ladies and gentlemen, throughout this trial, I've done my best, my very level best to bring you all of the facts, everything that was important for you to be able to determine whether or not this young boy had been molested, everything. "I tried very hard to get you all the information and everything that these witnesses could tell you that would help you decide and help you be able to determine the justice of this situation. "Unfortunately, the Prosecutor wants you to hear what is best for his case, just like the Defense wants you to hear all of the facts, which we feel would be best for his case. "I wish you could have heard all of everything of what anyone would have wanted to tell you about this matter because this is very, very important to this young man sitting over here, who's charged with all these crimes that he has told you and we have told you. And his plea has been -- and the witnesses have told you that he simply did not do it. "I wish you could have heard everything. "MR. HILOW: Objection, your Honor. "THE COURT: Sustained, sustained. They heard the evidence -- argue within the evidence; not what was ruled improper. "MR. WATSON: I'm still trying. "THE COURT: Did he take the stand? I don't remember it? Okay. "Sustained as to words he told you." (Emphasis added.) Appellant's trial counsel's remarks were a deliberate attempt to mislead the jury. It gave an inference that there was evidence somewhere that would have vindicated the appellant but - 11 - was not presented to the jury for reasons beyond appellant's control. Appellant's trial counsel seems to suggest also that appellant testified when actually he did not. The requirement of fairness in trial applies to both the defendant and the state, although the state with all its might, and being the accuser, may have a heavier burden of making sure that an accused is tried fairly, however, the burden of fairness is not exclusively on the state. The accused is not exempt from the fairness game. The trial court has absolute power to make sure that trial is had fairly. It is its duty to prevent either from taking unfair advantage over the other. Such is the uniqueness of our judicial system. The code of professional responsibility in DR7- 106(C)(4)(1) provides that an attorney is not to allude to mattes which will not be supported by admissible evidence. See also State v. Smith (1984), 14 Ohio St. 3d 13. Therefore, the trial court's comment was correctional and not prejudicial and within the contents of this case was proper. Appellant further argues that the failure of his trial counsel to object to the trial court's comment should be construed as plain error, pursuant to Crim. R. 52(B). We disagree. While a violation of a defendant's constitutional or statutory right which prejudiced his right to a fair trial is plain error as a matter of law, a reviewing court will not create plain error from the record where there is no error in the record. Appellant's first assignment of error is, therefore, overruled. - 12 - IV. Appellant, in his second assignment of error, argues that the trial court erred by permitting the state to reopen its case to present evidence of medical treatment. Appellant argues that evidence of medical treatment was presented by the prosecution at the close of its case in chief. Appellant argues that his case was prejudiced when he asked for a continuance to better prepare for the sudden presentation of medical evidence and his motion was overruled by the trial court. We agree. The record shows that the state sent subpoenas to the hospital requesting medical records of the victim. The hospital sent a letter to the state stating that it had no record of the victim. The record was not given to the state until after it rested its case in chief. The following colloquy took place at the introduction of the medical records. "MR. WATSON: Your Honor, with regard to this entire matter, we feel the presentation of records at this time is inappropriate and constitutes an injustice on behalf of the Defendant for several reasons. "The first being at all times prior to the beginning of this trial, during the preparing for this trial and et cetera, the counsel for the Defense was informed that no records ever existed at University Hospital. "THE COURT: Now, I've ruled on that before, and my ruling on that before is that he told you personally and that the name -- you can talk for yourself better. First day -- "MR. HILOW: Your Honor -- "MR. WATSON: May I finish, your Honor? - 13 - "THE COURT: Well, I -- I have to stop you because you're going to repeat the same thing I ruled on already. "MR. WATSON: Your Honor, you asked me about the objection to this proceeding at this time, and this is the nature and basis of my objection to the proceeding. "THE COURT: Okay. Continue. "MR. WATSON: Your Honor, not only is it -- we had no copy of these records. Although motion for discovery was filed, we were informed prior to the beginning of this case that there were no records in existence that could be located at that time. "Not only was there examination with regard to the voir dire and opening statement in this matter addressing the issue that there were no medical records available, but there is inquiry and testimony by the Prosecution's witness indicating that no records existed. And in fact, there was no ability to locate the record that the child had even visited the hospital in the computer. "At this time, and at this late date, and early this -- at the beginning of trial today, we were informed that records had in fact been located, and that we were presented with a copy thereof just a few hours ago with regard to this matter. And the Prosecutor did tell us that the records had been located at that time. "However, your Honor, it is our position that had we known of the existence of these records, specifically the content thereof, we would have presented medical testimony in controversy, to controvert or at least explain in fairness the content of the records to the jury. Specifically, the doctor who made this examination would have been subpoenaed for an explanation of his content of the records, his symbols and et cetera, which are absolutely elemental in this presentation of records to the jury. "We would further, at this time, indicate that by the surprise of this matter, we are unprepared to present medical testimony in our position, et cetera. "We would ask the court for a continuance in this trial for the basis of being able to do that, or in the - 14 - alternative, for declaration of a mistrial at this time, your Honor. "THE COURT: You want to argue the whole motion; including the mistrial and -- "MR. HILOW: Yes, your Honor. "THE COURT: Put it on the record. "MR. HILOW: For the record -- "THE COURT: Mr. -- calling Assistant County Prosecutor. "MR. HILOW: For the record, discovery was filed, University Hospital was listed as the place where this child was treated. "There was a letter that was provided to us from University Hospital from Rosemary Kovach, supervisor of medical information. "And just for the record: 'We have received request for medical information. Upon thoroughly checking our files, we find we do have medical records concerning this patient. However, we have no records concerning the particular time period that you have requested. We suggest that you contact the patient's private physician.' "Your Honor, following this, I also sent out Detective Zbydniewski from the Sex Crimes Unit to follow up, to determine whether or not there were records. "Before this trial began, and before voir dire began, I told the Defense Attorney, Mr. Watson, that the victim is adamant that she took this child to the hospital and there very well may exist some medical records lost within the system there, and this was before any questions were postured in voir dire and before opening statement. "Your Honor, we did the same thing on the first day of trial before opening statement after the jury was picked when it became apparent that these records might exist. "Your Honor -- - 15 - "THE COURT: What did you do? Put it on the record. "MR. HILOW: That there's a possibility that these records exist, and to inform Defense counsel do not [sic] proceed in the manner so as to indicate and represent to the jury that this woman in fact did not take this child to the hospital. "Even to the point of the trial, the evidence that was adduced, there was a release that was signed by the victim that was introduced at trial to show the actions of the victim of taking the initiative to have these records released. "Defense counsel still repeatedly chose the tactic to argue this child was never taken to the hospital, and ultimately, that would be a question of fact to be decided by the jury. "Importantly, your Honor, this morning, Detective Zbydniewski informed me she had conversations with Ms. Meszaros and that the records had been located. "I spoke with Ms. Meszaros approximately 9:15, 9:00 this morning. She confirmed the existence of the records, and she came down here today. "The State and the Defense Attorney saw the records at the same time. And for the record, your Honor -- I know they'll be a part of the record in some manner --it consists of one page. "Defense has argued that a mistrial should be granted because of the introduction of these records but has not cited any section of law or case law to support his finding. "Under Ohio, your Honor, under Rule 11 -- Rule of Evidence 611-A and also Ohio Revised Code 2315.01(D), the State would be permitted by the Court to reopen its case in the interest of justice to introduce said records. "And cases that support the position, your Honor, if I may for the record, are Kitchen versus Miller, 104 Ohio State 372, 1922, Columbus versus Grant, 1 Ohio Appellate 3d, 96, 1983. "Your Honor, one of the things that the State would show in this manner as to why these records should be introduced and no mistrial should be granted - 16 - is that if the State has shown -- demonstrated due diligence in obtaining these records, it was not something awaiting the 11th hour. "Detective Zbydniewski was out there repeated times, and there were more than one subpoena sent to the hospital. And for the support of that, your Honor, the State has shown due diligence. "We cite Shartle's, S-h-a-r-t-l-e's, versus Steate, S-t-e-a-t-e, 34 Ohio Law Abstract 2031940 [sic]. "Your Honor, for these reasons, the State feels it has met its burden of proof as followed by due diligence, and through the efforts of -- these records should be permitted in. And in the interest of justice, your Honor, whether justice would require this Court, if it sees fit, to let these records in. "THE COURT: Thank you. "MR. WATSON: May I have just one brief response, your Honor, and I will be brief. "THE COURT: Yes, sir. "MR. WATSON: We want the record to indicate that it was after the trial started that Detective Zbydniewski actually went out to the hospital to take a look to see whether or not these records existed at the insistence of the Prosecutor. "MR. HILOW: For the record, your Honor, it was before the jury was sworn. It was during the voir dire when the victim continued to adamantly say there were records out there. "So before the case was sworn, and I informed the Defense Attorney. "MR. WATSON: And this is a matter that has been pending with Mr. Samilton being in jail since February. There have been no prior attempts by the Prosecution or the police officers to further -- "THE COURT: You want to say anything else? "MR. WATSON: -- prior to the start of the trial, your Honor. - 17 - "THE COURT: There was notice -- I have to -- I already heard these arguments, and I refer anybody that wants to appeal -- wants to, anybody in Court of Appeals to go to that argument that was at the side bar concerning Rule 16, the continuing obligation to follow Rule 16. And the Court at that time in plain English said he was going to allow these records if they were found, and that was notice to you, sir. "And the Court on the -- overrules the motion for mistrial, and overrules any motion to prohibit the State of Ohio taking this Defendant -- taking this witness, that is Ms. Meszaros, out of order. "The Court intends to allow her to testify out of order as the next witness. The Court has that power cited by the -- 611 gives me the power of discretion to almost do anything in this courtroom. And this particular matter has to be reopened, as I allowed the Defense to reopen with Mr. Robinson, reopen its case. "This particular is a matter -- this particular matter is relevant, and the Court is going to, at this time, call for a voir dire conducted by the Prosecutor of Ms. Meszaros. "MR. WATSON: Your Honor my motion for reasonable continuance is overruled also? "THE COURT: It's overruled. No reason for it. "You've known at all times since I've known it, since before this trial, that they were looking for records. "MR. WATSON: No, your Honor, we were not informed until -- "THE COURT: I know the record will show we hadn't sworn in this jury when we took that up. "MR. WATSON: Yes, your Honor, but we did not have a copy of the records until this morning. "THE COURT: We didn't have a copy -- that's self-evident -- until today, and I repeated it once more during the trial that there was a continuing obligation to follow, and the Court in its discretion is going to allow these records to come in. "MR. WATSON: Yes, your Honor. - 18 - "THE COURT: If they're qualified under the rules of evidence. Okay. "MR. WATSON: What we're asking, your Honor, about the continuance is a reasonable continuance at this point so we may have an opportunity to have these records, that we have just seen just about this time, to be reviewed by our own medical professional for potentiality of other testimony. "THE COURT: For what reason? "MR. WATSON: For the reasons, your Honor, that there is no appearance of a doctor. "THE COURT: I'll tell you what I'll do. I'll let you take that, and you can bring him as your rebuttal or surrebuttal, whoever you want to tomorrow morning. "MR. WATSON: Your Honor, the only problem we have is that we do not know who this particular physician is because -- "THE COURT: You don't have to under the rules. Under -- he'll be identified I'm sure, as a physician. And under either rule which applies here, 8034, [sic] statements for purposes of medical diagnosis, and 8036, [sic] business records, not required to come in and testify. "You may inquire, starting with authenticating. "MR. HILOW: Thank you, your Honor. For the record --" (Emphasis added.) It is a settled law in Ohio that the trial court is within its discretionary powers to open up a case for the presentation of further evidence when justice requires. It is equally a settled law that the trial court's exercise of its discretionary authority will not be disturbed on appeal unless under the circumstances, the court abused its discretion. State v. Grundstein (1943), 46 Ohio Law Abs. 175; Columbus v. Grant (1981), 1 Ohio App. 3d 96. This court held in State v. Smith - 19 - (1985), 29 Ohio App. 3d 9, that the discretion conferred on trial courts regarding the admissibility of evidence is never absolute. In State v. Rogers (June 6, 1991), Cuyahoga App. No. 58557, unreported, we held that: "When erroneous evidentiary rulings substantially affect the rights of a party to a fair trial, such ruling is subject to a review, and reversal when appropriate." The trial court's interpretation of Evid. R. 611 as giving it "the power of discretion to almost do anything in the court room" and its subsequent denial of appellant's motion for a continuance because of what it believes is an exercise of that power amounts to an abuse of discretion and we so hold. "'In evaluating a motion for a continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstances which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. ***' State v. Unger (1981), 67 Ohio St. 2d 65." A constitutional due process right of a fair trial is an absolute fundamental guarantee that rises above a court's interest in avoiding a trial delay and cannot be compromised by discretion. The Ohio Supreme Court, in State v. Boston (1989), 46 Ohio St. 3d 108, examined the application of Evid. R. 803(4) to a child's statement to an examining physician alleging a sexual abuse, and expressed a lot of reservations. This reservation led the Boston court to conclude that where as in the within case the declarant testifies in court and is subject to - 20 - cross-examination, a better way of admitting the statement is under Evid. R. 801(D)(1)(c) and not under Evid. R. 803(4) as the trial court permitted in the within case. The Boston court, in an attempt to preserve a fair trial and at the same time allow a child's statement to the doctor to be admissible, held that: "an out-of-court statement of an allegedly abused child of tender years, including identification of a perpetrator, made to a qualified expert in which abuse, is admissible if the expert has independent evidence of physical or emotional abuse of the child, the child has no apparent motive for fabricating the statement and the child has been found unavailable after a good- faith effort to produce the child in court." Boston, supra, at 127. The state argues and so did the trial court that appellant knew about the possible existence of the medical records. We are not persuaded. The medical record may have been anticipated but the actual presentation of the document and the subsequent admission of it into the record without giving the defense counsel a chance to fully examine the record and decide on a counter attack either by subjecting the doctor to cross- examination in person or have their own doctor to rebut the medical record violates every rule of fairness. The trial court's statement that the doctor's presence is not required is not a proper construction of Evid. R.803(4). The statement would be correct if (1) appellant was given sufficient time to challenge the document and diligent effort was made and the doctor was unavailable. See Ohio v. Roberts (1980), 448 U.S. 56. The state further argues that it made diligent efforts to have the medical record during trial. While there are doubts as to - 21 - the diligence used, in consideration of the fact that the state's effort to obtain the report began according to the record at the beginning of trial, we are not persuaded because the state argued against a continuance without showing how a continuance would have prejudiced its case. Furthermore, the hospital administrator who testified about the medical record testified that the state's witness, Detective Zbydniewski, knew about the actual existence of the record before it was tendered by the prosecution on the morning in question. We cannot readily hold that an experienced police officer in the Sex Crime Unit of the Police Department did not appreciate the significance of the medical record of an alleged sexually abused child during trial to inform the prosecution of her knowledge of its discovery before it was tendered. We are equally not prepared to conclude that it was a coincidence and not a deliberate attempt on the part of the officer to wait until the morning after closing argument to inform the prosecutor of the record she knew had been found. The least the trial court could have done to guarantee fairness was to grant a continuance, since the medical record does not indicate that the attending doctor has independent evidence of physical or emotional abuse of the child. The hospital administrator testified that she could not identify the doctor that made the record. She also testified that she did not know some of the terms in the record, all the more reason to give the defense ample time to investigate the record further before its admission. The record further - 22 - indicates that all medical tests on the victim were negative, yet the doctor concluded "History strongly suggestive [sic] for sexual abuse". There is nothing in the report that supports the "history" the doctor referenced. Such remarks could be very confusing and highly prejudicial if not properly explained. As the concurring opinion in Boston, supra, expressed "Faced with such testimony, the defendant should have been given the opportunity to present rebuttal expert testimony as to these opinions." Id. at 131. We are compelled to hold that the trial court abused its discretion to the prejudice of appellant in denying his motion for continuance, and such error is reversible. Appellant's second assignment of error is sustained. V. Appellant, in his third assignment of error, argues that the trial court erred to his prejudice by allowing certain portions of the victim's testimony to be read to the jury. It is within the sound discretion of the trial court to decide whether a jury should be permitted to hear trial testimony during its deliberation. State v. Berry (1971), 25 Ohio St. 2d 255, 263. After jurors retire to deliberate, upon request from the jury, a court may in the exercise of sound discretion, cause to be heard the testimony of any witnesses. Id. No error necessarily inheres in permitting a jury, in a criminal case, to take to the jury room documents or tape recordings containing statements made by a witness. State v. Renshaw (May 16, 1974), Cuyahoga App. No. 33253, unreported. The - 23 - record herein reflects that the jury requested to rehear a portion of the victim's testimony, in order to ascertain what he actually said during trial. The record shows that initially the court instructed that the "Jury Must Rely on [sic] Own Memory". A second request was made when the jury could not come to an agreement as to what was actually said. The jury request was made simply to clarify what was said and not to give it any more emphasis than other evidence. Therefore, trial counsel's request that the entire testimony including the victim's answer during cross-examination be reread to the jury was unreasonable and goes beyond the purpose of the jury request. Our reading of the record reveals no abuse of discretion in allowing the victim's testimony to be read to the jury during its deliberation. Appellant's third assignment of error is overruled. VI. Appellant, in his fourth assignment of error, argues that the trial court erred by permitting collateral matters to be admitted into evidence. Specifically, appellant argues that the state's witness, Detective Zbydniewski's rebuttal testimony concerning what a witness, Patrice, told her was collateral and had no relevance to the trial. We find two things disturbing about the state's rebuttal testimony. Firstly, Detective Zbydniewski's rebuttal testimony about a statement made to her by a six-year-old witness added nothing but confusion to the entire testimony. The state argues that it was an issue of credibility - 24 - of the witness and allowed by Evid. R. 613. The detective had the following to say on rebuttal: "Q. And what did you learn as a result of your conversation with Patrice? "A. That Tyrone had pee-pee'd in the bathroom where Roger was, told Roger to come here, but Roger didn't go in there. He ran downstairs to tell his mother." Roger testified that he was alone with Tyrone when the incident occurred. If we take the above statement to mean that Patrice was present when the "pee-pee'd" incident occurred, it contradicts the victim's own testimony. If we take the statement to mean that Patrice was only relating to the detective what was told her by Roger or someone else, then it is hearsay of hearsay. Either way, it added nothing to the truth seeking function of the court but confusion and prejudice towards appellant and should not have been allowed. Secondly, the detective's rebuttal testimony that Patrice told her that "Tyrone had stuck his finger in Roger's mouth and grabbed Roger's arm" and that "Patrice stated that he would hold Roger and take him to the basement and scare him with the cats" are collateral matters and not a proper subject of proving prior inconsistent statement of a witness who had already denied making such statements. Under Evid. R. 102, which preserves the common law of Ohio, if counsel questions a witness about a prior statement concerning a collateral matter, he must accept the witness' answer because extrinsic evidence is not available to prove a prior statement embracing a so-called collateral matter. - 25 - See Weissenberger's Ohio Evidence Sec. 613. See also Byomin v. Alvis (1959), 169 Ohio St. 395. Sandra Byrd's testimony that "she (Patricia Samilton) called me on the telephone and said that she was going to buy a gun and it was going to be some blood shed" was irrelevant and prejudicial. The prosecution's repeated questioning of the defense witness over objection, "Have you heard, or are you aware of the fact that the Defendant molested Maxine's child, Sharad" is highly prejudicial and improper. There is no proof that such incident took place other than a hearsay statement made to the police by the victim's mother concerning what another person told her. It leaves the jury to conclude that appellant must have committed the act he is on trial for, if he did it to another child previously. Even after the witness testified that she never made such a statement to the victim's mother, the prosecution called the victim's mother to testify a second time on rebuttal that such statements were made to her by the witness. Such statements which are designed to inflame the jury, creates unfairness in a trial since it leaves the jury to include what is admissible evidence and what is not in its deliberation. In the within case, the trial court's admission of out of court statements not made under oath and the admission of testimony on collateral matters to rebut Patrice's testimony was misleading, confusing and prejudicial to appellant. Accordingly, appellant's fourth assignment of error is sustained. VII. - 26 - Appellant, in his fifth assignment of error, argues that the evidence was insufficient to convict him of Rape pursuant to R.C. 2907.02. Appellant argues that there was no evidence that he put his penis in the mouth of the victim and that the victim's testimony was based on the prosecution's leading questions. The law is settled that leading a witness on direct examination is not acceptable, however, an exception is made and accepted in all jurisdictions that when the witness is a child, leading and suggestive questions as the only means to get the truth out of the child witness, is allowed. See Boston, supra. In the within case, Roger was six years old at the time of the trial and the trial court did not abuse its discretion by allowing the prosecution to lead the witness. The victim, Roger, testified that appellant put his "pee pee" in his mouth and "pee pee'd" in his mouth. The jury believed the victim who testified that appellant put his "pee pee" in his mouth. The jury could draw a proper inference that the "pee pee" in the victim's mouth was appellant's penis, especially since Detective Zbydniewski testified that she conducted an interview using dolls to identify certain parts of the male sexual organs. A reviewing court will not reverse a judgment of conviction where there is sufficient evidence, which if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Therefore, the jury's belief that appellant put his penis in the victim's mouth based on the - 27 - victim's testimony was sufficient to convict him of Rape. Appellant's fifth assignment of error is overruled. VIII. Appellant, in his sixth assignment of error, argues that the trial court sentenced him to life imprisonment when the state did not prove the element of force. We agree. The record shows that the state voluntarily dismissed the portion of appellant's indictment alleging "force or threat of force". The record also shows that the state never argued or proved that force was used. Therefore, pursuant to R.C. 2907.02(1)(b), appellant is entitled to be sentenced to a term of five years to twenty-five years in jail. Appellant's sixth assignment of error is sustained. However, in light of our decision supra, the trial court's judgment is reversed and the cause is remanded for a new trial. IX. Counsel is reminded that App. R. 16 states: "(4) An argument. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the assignments of error presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." A counsel who bills the state or his client for legal services is presumed to know the law, the rules of procedure, and must justify his fees by complying with the rules of practice. Appellant's counsel's brief in the case sub judice is deplorable and highly frowned upon in terms of his failure to comply with App. R. 16. Any party filing papers with this court must comply with the appellate rules, one of which is to support arguments - 28 - with case law or statutes unless the case is one of first impression, which still calls for some case analogy. This court will not tolerate a scrambled brief by counsel which is put together to justify his fees, without satisfying appellate rules of practice. Such is a disservice to the client and to the legal profession as the whole not to mention a violation of counsel's oath to abide by the Ohio Supreme Court Rules of Superintendence. Accordingly, counsel are forewarned. - 29 - This cause is reversed and remanded for a new trial. 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. Exceptions. JAMES D. SWEENEY, J., CONCURS; DAVID T. MATIA, C.J., CONCURS IN JUDGMENT ONLY. SARA J. HARPER 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. .