COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60713 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ANDREW FERGUSON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 4, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-254,450 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Robert M. Ingersoll Assistant Public Defender The Marion Building, Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 -2- NAHRA, P.J.: On the evening of June 13, 1990, Lea Csongedi, a twenty- year-old secretary, went to a movie with her friend Veronica Ursini. After the movie, the two women drove to West 36th Street, where Lea's boyfriend, Greg Ramser, lived. However, Ramser was not at home when they arrived. Ramser did arrive at his house early in the morning of June 14th. Lea was upset since she had expected him to be there earlier and an argument unfolded. As a result, Lea opted to leave Ramser's house and walk home. Veronica and Ramser revealed that they believed that Lea was merely taking a walk around the block to cool down inasmuch as she had done the same in the past. Veronica and Ramser waited for her then proceeded to walk around the house and look for her. Lea could not be found. Lea called Greg's home during her walk but no one answered. She continued to walk down Clinton Road towards her home; she became nervous about a gold car that had passed her several times. She observed the car turn into a parking lot with its lights off. She then noticed someone walking on the opposite side of the street. The same person crossed the street to her side and said something to which Lea responded with an obscenity. The man, Andrew Ferguson, defendant-appellant, then grabbed her around the neck from behind and placed a knife to her neck. Ferguson told her that he would hurt her if she did not comply with his demands. He then pulled her across the street to a cemetery. Lea offered him money or jewelry in an attempt to -3- appease him. However, Ferguson showed her the knife and instructed her to pull down her shorts and underwear while he pushed her to the ground. Ferguson then got on top of Lea and twice inserted his penis into her vagina. Ferguson then performed oral sex on Csongedi and placed his penis in her mouth. Dr. Joseph Serowick, a member of the Cleveland Police Forensic Laboratory, testified that the vaginal swab taken during Csongedi's physical examinations immediately following the rape was positive for seminal fluid. After the sexual acts were completed, Ferguson became disturbed by something and told Lea to run in a direction away from his car which she did. Ferguson caught up with her shortly thereafter and made her promise not to tell anyone about what had transpired. He also asked her for directions to the nearest police station since a police officer had removed the keys from his car. Lea returned home, called Veronica, and disclosed that she had been raped. Veronica went to Lea's home and called for an ambulance and the police. At 4:15 a.m. in the morning of January 14, 1990, officer Thomas Mann of the Cleveland Police Department arrived at Lea's home. He revealed that Lea was too distraught to speak with him; Mann then called for a female officer to interview Lea. Lea was then transported via ambulance to Fairview Hospital. Once there, officer Bonita James of the Cleveland Police Department took information from Lea who was crying and shaken. James also took -4- pictures of puncture marks on Lea's neck. Dr. Michael Murray treated Lea for such marks and also conducted a pelvic examination. He diagnosed sexual assault. Csongedi denied that the sexual acts were consensual or that she performed them for money. She denied involvement in solicitation and revealed that she does not use birth control. She stated that she submitted to the acts because she feared that she would be injured or killed. After instructing Lea not to tell anyone, Ferguson walked to the Cleveland Police Department's First District in search of his car keys. Halle Casper, a patrol officer there, stated that Ferguson arrived at about 4:30 a.m. and told her that his car had broken down and wondered if the police had taken his keys which had been left inside the vehicle. He revealed to Casper that he went to his mother's house after the car was not working and observed police pulling away from the car just upon his return there. Casper's quick investigation revealed that the Brooklyn Police Department possessed Ferguson's car keys. Mark Tenaglia, a patrol officer for the Brooklyn Police Department, testified that he picked up the keys from a car later to be identified as Ferguson's at 7227 Clinton Road and took them back to the station. Ferguson received instructions to the Brooklyn Police Station from officer Casper and walked there at about 5:30 a.m. After Ferguson had received his keys and departed, the Brooklyn -5- Police Department received a telephone call about the rape on Clinton Road. Detective James Herron of the Cleveland Police Department testified that he arrested Ferguson on June 16, 1990. Herron revealed that Ferguson asked him about the nature of the arrest warrant to which Herron responded that it was "rape". Herron further revealed that Ferguson asked him why the police had not stopped him at the two police stations on the morning in question. Ferguson called two co-workers to testify on his behalf. Todd Bulman and Nathaniel Short testified that they worked with Ferguson at Natale Landscaping and that they frequently used knives on the job. Both disclosed that Ferguson often borrowed their knives at work; they did not know if Ferguson owned a knife. Ferguson testified that he spent the evening of the night in question at his girlfriend's house in Lorain. He remained there until about 1:00 a.m., but left after an argument ensued. He claims that he drove to his mother's house in East Cleveland, but decided that he wanted a sandwich and left. He claims that he drove back to the west side to the area of Denison and West 36th Street where Lea Csongedi propositioned him. He asserted that she told him she "dated" in order to make ends meet. He revealed that she directed him to the nearby cemetery off of Clinton where she consensually engaged in sex. Ferguson testified that he paid Lea $40. While they were engaged in sexual intercourse, Ferguson -6- heard a noise and went to the front of the woods where he saw a police cruiser in the parking lot. The police were shining a flashlight into Ferguson's car. However, Ferguson returned to Lea and completed the various sexual acts. He stated that Lea walked home while he went to retrieve his car keys from the police. On July 6, 1990, Ferguson was indicted on three counts of rape pursuant to R.C. 2907.02, one count of kidnapping pursuant to R.C. 2905.01, and one count of felonious assault pursuant to R.C. 2903.11, all of which contained prior aggravated felony specifications. On August 27, 1990, a bench trial ensued. A variety of witnesses testified. At the close of evidence the trial court granted Ferguson's motion for acquittal pursuant to the one count of felonious assault. The trial court found Ferguson guilty of the three counts of rape and one count of kidnapping. The trial court also found that all the offenses were allied offenses of similar import and, as a result, merged the convictions. Ferguson was sentenced to a prison term of fifteen to twenty- five years. This appeal follows. I. Appellant's first assignment of error states: ANDREW FERGUSON'S GUILTY VERDICTS FOR RAPE AND KIDNAP ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The weight to be given evidence and the credibility of witnesses are determinations to be made by the trier-of-fact. -7- State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. If there was sufficient evidence for the trier-of-fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St. 3d 305, 306, 528 N.E.2d 523, certiorari denied (1989), 109 S. Ct. 1177. Ferguson maintains that Lea Csongedi's testimony that she was forced against her will to engage in sexual acts lacked credibility. However, the trial judge determined that there was sufficient evidence to find Ferguson guilty of rape and kidnapping beyond a reasonable doubt. The trial court apparently determined that Lea's version of what transpired was credible-- that she was forced at knife point to perform three different sex acts with Ferguson. The trial court also apparently found that Ferguson's testimony that Lea was soliciting him for sex for money and without contraception lacked credibility. We find no reason to disturb the trial court's evaluation of the witnesses' credibility. We do not believe that the convictions for rape and kidnapping were against the manifest weight of the evidence. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: ANDREW FERGUSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY'S -8- FAILURE TO DISCLOSE THE FULL DETAILS OF MR. FERGUSON'S DEFENSE. Ferguson contends that his legal counsel at trial failed to render effective assistance. He maintains that his counsel failed to bring out evidence that Ferguson had knowledge of the contents of Lea's wallet. Such information would bolster Ferguson's case that he actually paid Lea to perform sexual acts. We note initially that Ferguson's claim concerns matters outside the record. In this way, an evidentiary hearing concerning his trial counsel's competency is required. State v. Heston (1976), 45 Ohio St. 2d 71, 341 N.E.2d 304. Ferguson's claim more properly belongs in a petition for post-conviction relief. State v. Cooperrider (1983), 4 Ohio St. 3d 226, 448 N.E.2d 452. Notwithstanding the fact that Ferguson's claim is not properly before us, we do not believe that his trial counsel denied him effective assistance. In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court adopted a two-prong analysis for determining whether trial counsel's assistance was so defective as to require reversal of a conviction: * * * First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not able functioning as the "counsel" guaranteed the defendant by this Sixth Amendment. Second, the defendant must show that deficient performance prejudiced the defense. This requires showing that counsel's error were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. * * * -9- Id. at 687. The Strickland test enunciated above is substantially the same as that applied by Ohio courts. In Ohio, the test for determining effective assistance of counsel is whether the accused, under all the circumstances, had a fair trial and substantial justice was accomplished. State v. Hester (1976), 45 Ohio St. 2d 71, 79, 341 N.E.2d 304. In State v. Lytle (1976), 48 Ohio St. 2d 391, 396-397, 358 N.E.2d 623, vacated as to the death penalty (1978), 438 U.S. 910, the Supreme Court enunciated a two- part test: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. A properly licensed attorney is presumed competent in Ohio. Vaughn v. Maxwell (1965), 2 Ohio St. 299, 301, 209 N.E.2d 164. Thus, the defendant has the burden of proving ineffectiveness of counsel. State v. Smith (1985), 17 Ohio St. 3d 98, 100, 477 N.E.2d 1128. Our review of the record indicates that Ferguson was afforded a fair trial and effective assistance of counsel insofar as his counsel's representation did not fall below an objective standard of reasonableness. State v. Bradley (1989), 42 Ohio St. 3d 316, 538 N.E.2d 373. Ferguson has failed to show that -10- counsel's assistance was deficient or prejudicial. Evidence in the record indicates that Lea inadvertently left her purse with Ferguson for a short time after the sexual offenses were committed. During such time, Ferguson may well have examined the contents of her purse. We believe that trial counsel's apparent decision not to pursue Ferguson's defense that he observed her wallet's contents when he paid her cash was reasonable. Counsel's decision constituted a strategic decision that we are not inclined to challenge. State v. Bradley (1989), 42 Ohio St. 3d 136, 146, 538 N.E.2d 373. Appellant's assignment of error is overruled. III. Appellant's third assignment of error states: ANDREW FERGUSON WAS DENIED HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL BY PROSECUTORIAL MISCONDUCT DURING THE TRIAL. Ferguson contends that he was denied a fair trial by the misconduct of the prosecutor. He asserts that the prosecutor engaged in improper questioning on cross-examination of appellant. The conduct of a prosecuting attorney during trial is a ground of reversal or the grant of a new trial if such conduct deprives defendant of a fair trial. State v. Maurer (1984), 15 Ohio St. 3d 239, 266, 473 N.E.2d 768, certiorari denied 472 U.S. 1012. The effect of the prosecutor's conduct must be considered in light of the entire case in order to determine whether the -11- conduct was prejudicial. Id. We do not believe that the prosecutor's conduct deprived Ferguson of a fair trial. Ferguson testified that he did not tell officer Casper that his car had broken down and that he had walked to his mother's house. During cross-examination of Ferguson, the prosecutor asked whether officer Casper had lied when she testified that Ferguson told her that he had broken down and that he walked to his mother's house thereafter. A defense counsel's objection to the question was overruled and Ferguson testified that officer Casper had lied. Questions posed by prosecuting attorneys to a defendant or a defense witness of his opinion about the veracity of another witness are improper. United States v. Richter (C.A. 2, 1987), 826 F.2d 206. While the prosecution's single question to Ferguson was improper, we do not believe that such question contaminated the proceedings so as to deny appellant his right to a fair trial. State v. Smith (1984), 14 Ohio St. 13, 14, 470 N.E.2d 883. Absent such question and response, we believe that the fact finder would have found the appellant guilty beyond a reasonable doubt. Id. at 15. We note that the prosecution did not pursue this line of questioning after asking Ferguson his opinion about Casper's credibility. Any such error in this regard is deemed harmless. Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. -12- 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. JAMES D. SWEENEY, J., and KRUPANSKY, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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. .