COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60433 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION MELVIN PERRY : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-237877. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Melody A. White Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Paul F. Markstrom 208 Ohio Savings Building 22255 Center Ridge Road Rocky River, Ohio 44116 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Melvin Perry ("Perry") appeals from his jury trial conviction of the rape of a six-year old girl in violation of R.C. 2907.02(A)(1)(b), (A)(2), (B). For the reasons adduced below, we affirm. A review of the record reveals that the grand jury, on June 23, 1989, returned a two count indictment against Perry. The first count was rape, the second count was gross sexual imposition [R.C. 2907.05]. At his arraignment on June 22, 1990, Perry entered a plea of not guilty. The jury trial began on August 6, 1990. Prior to opening statements, the court, out of the presence of the jury, conducted a voir dire examination of the victim, Tiffany Love (date of birth July 3, 1982), and found her competent to testify. At trial, the prosecution presented the testimony of five witnesses. The first witness for the prosecution was Madeline Love, the maternal grandmother of the victim, who testified that: (1) the victim lived at her house, along with the victim's two other minor sisters and the victim's mother, in December, 1988; (2) she had never heard of Perry until this incident; (3) she and the victim's mother drove the victim to the Perry home on Saturday, December 3, 1988, so that the victim could attend the birthday party of one of the Perry children; (4) the victim spent that night at the Perry home; (5) she and the victim's mother returned - 3 - for the victim at 7:00 p.m. on Sunday, December 4, 1988, and that the victim appeared normal at the time; (6) on Sunday, December 11, 1988, she was called to the bathroom by the victim's mother, where the victim was in the process of being bathed; (7) at this bath, bruises on the child's right shoulder and left forearm were noticed by the adults; (8) the victim said that she did not know what caused the bruises; (9) thereafter, the victim's performance at school deteriorated and she began fighting with her siblings; (10) she did not observe these bruises prior to the party; (11) she and the victim's mother took the victim to her pediatrician and St. Luke's Hospital on Tuesday, December 13, 1988; (12) the hospital contacted the department of human services because they suspected child/sexual abuse; (13) the victim did not divulge the cause of the bruises while a patient; (14) the victim entered into counseling in February of 1989; (15) in early February, subsequent to watching a television news story about an unrelated child sexual abuse/murder, the victim named "Charise's father" as 1 her assailant ; (16) after confessing, the victim clung to her mother and cried; (17) the police were contacted on February 26, 1989, the day after the victim confessed; (18) the victim never complained about her mother's boyfriend, Nelson Long. The second witness was the victim, Tiffany Love, who testified that: (1) a lie is not the truth, and it was bad to tell a lie and good to tell the truth; (2) she was at Charise's 1 Charise is the daughter of defendant and Deborah Perry. - 4 - house to attend a birthday party for Charise's little sister; (3) she called her mother after the party to ask if she could stay overnight at the Perry home; (4) her mother dropped off some clothes for her after the party; (5) this visit to the Perry home was the first time she had ever been at that home; (6) she and Charise went to bed when it was dark outside, and shared the same bed; (7) she went to sleep that night with the lights on; (8) the defendant came into the room, undressed himself, took her panties off, held her down by her shoulders, and partially inserted his 2 penis into her vagina ; (9) he hurt her "private" and shoulders; (10) he threatened to do it again if the victim said anything and then left, turning out the lights as he exited the room; (11) she did not remember the bed moving during the attack; (12) she went back to sleep after he left, and Charise slept through the entire event; (13) he put her panties back on before leaving the room; (14) it was dark outside when this attack happened; (15) she was awakened by Charise in the morning, who turned on the light; (16) she ate breakfast and went to church with Charise and her grandfather; (17) she had lunch at the Perry home after church; (18) she went back to her home at night after having dinner at the Perry home; (19) she was afraid to tell about the event because she did not want it to happen again. 2 In addition to oral testimony, the witness used anatomically correct dolls to demonstrate what occurred. - 5 - The third witness was Cynthia Love, the mother of the victim, who testified that: (1) the victim's relationship with her fiancee, Nelson Long, was that of a father and daughter and did not change after the incident; (2) she and her mother drove the victim to the Perry house in the afternoon of December 3, 1988, for a birthday party; (3) she dropped off clothing for her daughter between 7:00 and 8:00 p.m. after her daughter telephoned her to ask to stay overnight and she had spoken with the Perrys about this; (4) she met Mr. and Mrs. Perry at the time of dropping off the clothes; (5) when she and her mother picked up the victim on Sunday, December 4, 1988, at approximately 8:30 or 9:00 p.m., the victim was unusually quiet; (6) she first noticed the bruises during a bath for the victim on Sunday, December 11, 1988; (7) she took the victim to a pediatrician and then to St. Luke's Hospital on Tuesday, December 13, 1988; (8) the victim was admitted to the hospital for about a ten day period; (9) the hospital staff discovered through testing that the victim was vaginally infected with chlamydia, a sexually transmitted disease; (10) while the victim was in the hospital, Mr. Perry telephoned the witness seeking information regarding the victim; (11) following her hospitalization, the victim entered counseling for a period of approximately ten months; (12) this counseling seemed to lessen the victim's hyperactive/aggressive behavior; (13) custody of her three minor children was awarded to Madeline Love, the grandmother of those children, in June, 1989, due to - 6 - drug abuse by the witness; (14) she met Mr. and Mrs. Perry when she dropped off the clothing; (15) the victim seemed bothered when the witness picked her up at the Perry home; (16) she had little recall of the counseling; (17) she did not use Mr. Perry's name when seeking to discover the identity of the assailant, rather, she said "was it over at Charise's?" to which the victim said "Charise's daddy." The fourth witness was Dr. Nazeen Quadri, a pediatrician at St. Luke's Hospital who examined and treated the victim. Dr. Quadri testified that: (1) the victim's vaginal examination tested positive for chlamydia; (2) the victim's hymen was intact, but that did not prevent a slight penetration of the vagina; (3) in 95% of the child abuse cases she sees, the child is reluctant to identify the attacker; (4) only sexual contact with a male could cause chlamydia in a child the age of the victim; (5) the bruises on the victim were one to two weeks old and in the process of healing; (6) drug use could affect a person's ability to detect the bruises. The fifth witness was Andrea Zbydniewski, a detective with the sex crime unit of the Cleveland Police Department, who testified that: (1) she took an oral report from the victim's mother on February 22, 1989, and a written report from the victim's mother on February 26, 1989; (2) the victim's mother gave a written statement on March 7, 1989; (3) she interviewed the defendant on March 15, 1989, at the Perry home subsequent to - 7 - advising him of his constitutional rights; (4) at this interview, the defendant stated that: (a) the party was on December 7, 1988; (b) he left the party after dropping off the cake; (c) he returned to the house between 5:30 and 6:30 a.m.; (d) he denied touching the victim; (e) the victim had slept overnight several times previous to the night of the party; (5) she did not investigate any other males as suspects in this case. The prosecution then rested its case. The defense moved for acquittal at this time. The court granted this motion as to the second count, and denied it as to the first count. The case for the defense consisted of the testimony of seven witnesses. The first witness for the defense was Deborah Perry, the 3 mother of Charise and the ex-wife of the defendant. This witness testified that: (1) the defendant was never abusive to children; (2) the victim previously attended Charise's birthday party in January of 1988; (3) the victim arrived at the December, 1988 party around 2:00 to 3:00 p.m.; (4) the party ended between 6:00 and 7:00 p.m. and the defendant was at home at the time; (5) the mother of the victim dropped off some clothing for the victim around 8:00 p.m.; (6) the children's bedroom and the parent's bedroom share a common wall; (7) the two six-year-old girls went 3 The witness and defendant were separated in July, 1989. The witness divorced the defendant on June 28, 1990. She claimed that the primary reason for the divorce was defendant's inability/refusal to support herself and her children. - 8 - to bed around 10:00 p.m., sharing a double bed; (8) she turned the lights out when she put them to bed; (9) the defendant was at home at this time; (10) the witness is a light sleeper and would have heard noises from the children's bedroom; (11) she heard no noises from the children's room; (12) the defendant did not leave the marital bed; (13) she awakened both children in the morning and noticed nothing unusual as she helped the girl's dress; (14) the victim appeared fine and had a good appetite; (15) the victim left the Perry home between 6:00 and 7:00 p.m. on Sunday, December 4, 1988; (16) she first became aware of formal charges against the defendant when he was arrested in mid-June, 1989; she first became aware of the allegations against defendant when the victim's mother telephoned her after the victim confessed, seeking the address of the Perry home and the name of Charise's father. The second witness was Robert Woodson, a first cousin of defendant, who testified that the defendant was not a violent man, or abusive to women or children. The third witness was Charles Brannon, a friend of the defendant's father who has known the defendant for twelve years. Mr. Brannon's opinion of defendant concurred in Mr. Woodson's testimony. The fourth witness was Mary Guen, a cousin of defendant, who concurred in the testimony of Mr. Woodson. Her opinion would not - 9 - change if the defendant were involved in a paternity action and used the name Melvin Price. The fifth witness was Sheila Porter, a family friend of fifteen years, who concurred in the testimony of Mr. Woodson. She also stated that her opinion of defendant would not change if defendant: was involved in a paternity action; used a different name; did not pay his child support. The sixth witness was Robbie Terrell, who has known the defendant for five years, and testified that he concurred in the testimony of Mr. Woodson and Mr. Porter. The witness also stated that he did not know everything about the defendant, and a good person would not need an alias. The witness had no knowledge that defendant used an alias. The seventh witness was Denise Woodson, the wife of a prior witness who has known the defendant for fourteen years. The witness stated that she would see the defendant about twice a month and that she concurred in the testimony of her husband. The defendant did not testify. The defense rested and renewed its motion for acquittal. This motion was overruled. The jury found defendant guilty of count one, finding the victim to be under the age of thirteen and that the defendant used force or a threat of force in the offense. The Court sentenced the defendant to life imprisonment. This appeal raises two assignments of error. - 10 - I THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY IMPROPERLY LIMITING THE DEFENSE CROSS- EXAMINATION AND THE APPELLANT WAS DENIED DUE PROCESS THEREBY. In this assignment, appellant cites five instances of alleged error during the cross-examination of various witnesses by the defense. Prior to our discourse on this assignment, it is noted that a trial court has broad discretion in controlling cross-examination, and the appellant has the burden of showing a patent abuse of that discretion. State v. Walker (1978), 55 Ohio St. 2d 208. Furthermore, cross-examination is to "be permitted on all relevant matters and matters affecting credibility." Evid. R. 611(B). The first area of alleged error surrounds the following testimony of Madeline Love, the grandmother of the victim: Q. Can you tell us approximately when she would have first said, first had the conversation that you related to us, following watching the news program? A. Early February, when they came on the news, I don't remember the exact date. Q. Can you tell us in relation to when the counsel had begun? A. Beg your pardon? Q. The counsel commenced on February 8 according to the records I have been provided? A. Yes. - 11 - Q. Does that sound about right? A. I couldn't say. Q. Assuming that the records are correct, about how long after the initial counsel interview would you say that this incident occurred with the TV show? A. I don't know. I don't know the exact date of the TV show. Q. A week after counsel started, three weeks? A. I don't remember. Q. Did you go to the counsel sessions? A. Yes. Q. And, in fact, there was a time Tiffany was almost dropped from the counsel program, wasn't there? MS. WHITE: Objection. A. Not that I know of. THE COURT: Sustained. (R. 49-50). Whether the victim was almost terminated from the counseling program is not relevant to determining when the victim identified her assailant. See Evid. R. 401. It was also not relevant to show that the entry into a counseling program was used as an instrument to gain the identity of the assailant because the evidence clearly indicated that this was not the raison d'etre for the counseling. Counseling was an effort to deal with the - 12 - victim's unusual and newly found levels of hyperactivity and aggression. The second instance of alleged error surrounds the following during the cross-examination of the victim: Q. And when your mom saw the bruises, what did you tell her? A. I didn't tell her. Q. You didn't tell her anything? A. No. Q. Why not? A. I don't know. Q. Now, when you came into Court here today, you told us that it was important to tell the truth, right? A. Yes. Q. And it is just as important to tell your mom the truth as it is to tell the Judge and jury the truth? A. Yes. Q. When your mom asked you questions and you didn't give her an answer, that wasn't telling her the truth, was it? MS. WHITE: Objection. THE COURT: Sustained. (R. 96). Appellant argues that the sustained objection prevented him from determining what the victim "meant when she testified about 'telling the truth'." Appellant's brief, at 10. This line of - 13 - questioning dealing with the victim telling the truth was examined by defense counsel earlier in the testimony of the witness. (R. 77). Accordingly, the court was within its discretion in curtailing a repetitive line of questioning. The third instance of alleged error, whether the victim's mother suggested the actual name of the assailant to the victim, occurred during the cross-examination of the victim's mother: A. No, I didn't know his name. Q. You don't remember how much time went by, is it fair for me to say, from the time that you learned she has a venereal disease, according to you, three days after she is in the hospital, December 16, until the day she tells you it is Melvin Perry, you never give her these options on names of who molested her? A. She didn't want to talk about it. Q. One night you say, was it Nelson, then you say was it somebody else, then you say, was it somebody down the street and then you say, was it Melvin Perry? A. I didn't use his name, I didn't know it. I testified to that, yes, but I didn't use the name. Q. On direct examination you testified you used his name? A. I was mistaken, his name was not used. Q. The testimony you gave to Ms. White in her examination wasn't true? MS. WHITE: Objection. - 14 - THE COURT: Sustained. Q. You used that name on direct examination? A. I did use that name. Q. Now you are telling us that that was wrong, am I right? A. Yes, I did it wrong, I didn't use it with her. (R. 146-147). Appellant argues that the sustained objection prevented him from "questioning as to the truth of direct examination testimony." Appellant's brief, at 10. In light of the witness's testimony immediately prior to the objectionable question, where she stated that she was mistaken when she testified on direct examination that she had used the defendant's actual name while talking to the victim, further questioning on this issue was repetitive and harassing. The court acted within its discretion in sustaining the objection. The fourth instance of alleged error occurred during the cross-examination of the victim's mother: Q. Had you ever spoken to Ms. Perry before that day? A. No. Q. You are certain about that? A. I don't remember really. Q. If I were to tell you your mother testified in Court that you and Ms. Perry went to school? - 15 - A. She might have been, I might have mentioned. Q. Did you and Ms. Perry go to school? A. I don't remember, I don't know. Q. Did you ask her? A. No, I did not ask her. Q. So you are saying that you saw this lady, she looked familiar, you may have gone to school with her and yet never asked her where she had gone to school and determined if you knew her? MS. WHITE: Objection. THE COURT: Objection sustained. (R. 132). Appellant argues that the sustained objection prevented him for "inquiry into whether Cynthia Love was a prior acquaintance of the appellant's wife." Appellant's brief, at 10-11. This argument is incorrect. Defense counsel questioned the witness on page 131 of the record as to her knowledge of the Perrys. Q. When did you first actually meet them in person? A. When I took the clothes. The court acted within its discretion in limiting repetitive testimony. The fifth and final instance of alleged error occurred during re-cross-examination of Detective Zbydniewski: Q. Detective, isn't it a fact oftentimes when a child is sexually - 16 - abused it is somebody very close to the family? MS. WHITE: Objection. THE COURT: Sustained. Q. Detective, wouldn't you agree with me a potential suspect in any sex abuse case would be a father or father figure to the child? MS. WHITE: Objection. THE COURT: Sustained. (R. 213). The evidence in this case raised no suspicion with regard to the assailant being a close family friend or member of the victim's family. Inquiry into this line of questioning is speculative and not relevant to the facts of this case. Assignment overruled. II THE VERDICT FINDING THE APPELLANT GUILTY OF RAPE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The issue of manifest weight of the evidence was discussed in City of Cleveland v. Laux (June 27, 1991), Cuyahoga App. No. 58856, unreported, at pages 15-16: This court stated the following in State v. Mattison (1985), 23 Ohio App. 3d 10, at page 14: A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury "'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, 172 [10 O.O. 3d 340]; - 17 - see, also, State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O. 2d 366]. *** The eight factors listed in Gaston are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed. The eight factors mentioned in the above citation and relied upon by appellant, which are contained in State v. Gaston (Jan. 11, 1979), Cuyahoga App. No. 37846, unreported, were referenced by the Mattison court in the syllabus. These factors are: 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; 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, uncertain, conflicting or fragmentary. (Emphasis added.) Reviewing the record before us, we find that the trier of fact judging the credibility of the witnesses, had before it competent, credible evidence to support a finding of guilt. Assignment overruled. Judgment affirmed. - 18 - 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. LEO M. SPELLACY, P.J., and PATRICIA A. BLACKMON, J., CONCUR. JAMES D. SWEENEY 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. .