COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61074 STATE OF OHIO : : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : RODNEY STEVENSON : OPINION : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-250665 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: KARL WETZEL Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN H. HIGGINS The York Executive Building 6315 Pearl Road, Suite 302 Parma Heights, Ohio 44130 -2- SPELLACY, J.: Defendant-appellant Rodney Stevenson ("appellant") appeals his conviction for one count of Corruption of a Minor, in violation of R.C. 2907.04. The facts giving rise to the instant appeal are as follows: In November, 1989, the victim, 15-year old Aaeshah Robinson, lived with appellant, her stepfather, at 4688 Walford Road in Warrensville, Ohio. The other residents of the household were Aaeshah Robinson's mother, three sisters, and little brother. They had lived at that address since September, 1989 after moving from Ashtabula, Ohio. One evening, around the middle of November, 1989, between 9:00 p.m. and ll:00 p.m., Aaeshah Robinson's mother left the home, in order to go pick up her two older sisters at work. Aaeshah Robinson's two younger siblings went with her mother, thus leaving her and appellant alone in the home. Aaeshah Robinson heard appellant call for her from downstairs while she was upstairs in her bedroom. The next thing she knew, appellant entered her bedroom and told her to, "Come on." From past experiences with appellant, Aaeshah Robinson took this to mean that appellant wanted to touch her sexually. Aaeshah Robinson claimed that appellant had sexually touched her while they lived in Ashtabula, Ohio. Appellant initially took Aaeshah Robinson to the hallway and then the two returned to her bedroom. Aaeshah Robinson laid on her bed, which was next to the window, and appellant instructed -3- her to pull down her pants. After Aaeshah Robinson pulled down her pants, appellant did the same and then got on top of her. At that point, appellant penetrated Aaeshah Robinson halfway with his penis for about five minutes. During the time in which appellant was penetrating Aaeshah Robinson, he told her that he loved her and that she was pretty. After five minutes, appellant withdrew and pulled his pants up. Later in November, 1989, another incident occurred between appellant and Aaeshah Robinson. While Aaeshah Robinson's mother was having her hair done, Aaeshah Robinson was home with appellant and her little brother and sister. Aaeshah Robinson was sleeping in her bed when she was awakened with appellant on top of her. When she tried to push appellant off of her, he slapped her and told her to go to his bedroom and take off her "stuff". Aaeshah Robinson complied. While she was in appellant's bedroom, Aaeshah Robinson took her clothes off and so did appellant. Aaeshah Robinson laid on the bed, but she then heard her little siblings coming up the stairs. She put her clothes back on and ran toward the dresser. Suddenly, appellant grabbed a belt, accused her of stealing money, and proceeded to hit her with the belt. In early January, 1990, Aaeshah Robinson told her sister, Marsha, about all the incidents of sexual activity she had with appellant. On February 22, 1990, Aaeshah Robinson's mother asked her whether anything occurred between her and appellant. She responded affirmatively to her mother. -4- On that same night, Aaeshah Robinson's mother took all the children directly to the police station, after Aaeshah Robinson provided her with the details. At the police station, Aaeshah Robinson gave the police a statement. The police then escorted the family back to 4688 Walford Road so they could retrieve some clothes and personal belongings. When the police arrived at the house with the family, in order to pick up some personal belongings, appellant was outside in the courtyard. Once appellant saw the police, he immediately ran inside and locked the door. Officers Sellers and Olp of the Warrensville Heights Police Department walked around the complex to find another entrance. At that point, appellant opened the door and engaged in a conversation with the officers. The officers then escorted Aaeshah Robinson's mother upstairs, but appellant interrupted and attempted to stop her. Upon the instructions of the officers, appellant went downstairs and waited with Officer Olp. Soon thereafter, Officer Olp yelled to Officer Sellers for assistance after appellant ran outside toward the children waiting in the police squad car. Outside the home, the officers were able to catch appellant and told him to return to the home. Appellant suddenly ran back inside, slammed the door, and locked the officers outside. The officers immediately instructed appellant to open the door, but they received no response. Thus, they kicked the door down and then restrained appellant from going upstairs. -5- Aaeshah Robinson's mother was escorted outside by the officers and reunited with her children. They spent the night at a hotel and returned home the next day, after appellant vacated the premises. Aaeshah Robinson was subsequently taken to Community Bedford Hospital and then to Southgate Medical Building for physical examinations. Aaeshah Robinson was accompanied by her mother, appellant and appellant's family. After both examinations, the doctors concluded that too long a period of time transpired to determine whether anything occurred. On March 19, 1990, Aaeshah had an interview with Sergeant Daniel Bambrick of the Warrensville Heights Police Department. During the interview, Aaeshah Robinson recanted her story. As a result of Aaeshah Robinson's recantation, Sergeant Bambrick initiated charges for filing a false police report in Juvenile Court. However, the charges were never pursued after appellant's indictment. Aaeshah Robinson later testified that she changed her story because appellant was "badgering" her mother. On April 24, 1990, appellant was indicted by the Cuyahoga County Grand Jury for one count of Corruption of a Minor, in violation of R.C. 2907.04, and one count of Rape, in violation of R.C. 2907.02. Both counts carried a violence specification for a prior conviction of carrying a concealed weapon. At his arraignment on May 9, 1990, appellant pleaded not guilty. Approximately three weeks prior to appellant's trial, Aaeshah Robinson, once again, recanted her initial story. This -6- time, she recanted her story while she was at appellant's attorney's office. On October 22, 1990, appellant's jury trial commenced. Appellant was found guilty of corruption of a minor but not guilty of rape. The trial court subsequently sentenced appellant to a term of two to ten years. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE TRIAL COURT ERRED IN ALLOWING THE ALLEGED VICTIM'S MOTHER TO GIVE AN OPINION AS TO WHETHER THE VICTIM WAS BEING TRUTHFUL. II. THE APPELLANT WAS DENIED DUE PROCESS BECAUSE HIS CONVICTION IS NOT SUPPORTED BY SUFFICIENT EVIDENCE. In his first assignment of error, appellant argues that the trial court erred in permitting Aaeshah Robinson's mother to testify that she believed her daughter. Appellant contends that Aaeshah Robinson's mother's opinion was not admissible under Evid. R. 701. Evid. R. 701 states as follows: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. Thus, Evid. R. 701 provides that a lay person may express an opinion at trial where the opinion is rationally based upon the witness's perceptions and the opinion is helpful to the determi- nation of a fact in issue. State v. Jells (1990), 53 Ohio St.3d -7- 22. Further, the lay witness's opinion testimony is admissible if it is a matter within common observation and experience. State v. Matlock (Jan. 18, 1990), Cuyahoga App. No. 56473, unreported. However, it has generally been accepted that opinion testimony cannot be used to show that a child is telling the truth or that the child accurately testified. See State v. Boston (1989), 46 Ohio St.3d 108, syllabus. It is the trier of fact that is burdened with assessing the credibility and veracity of witnesses. Id. at 128-129. In the instant case, Aaeshah Robinson's mother expressed the opinion that, based on her own perceptions, Aaeshah Robinson was telling the truth. We find that said opinion was inadmissible under Evid. R. 701. In determining whether an error was prejudicial or harmless, a reviewing court must first read the entire record, disregarding the objectionable material, if there is overwhelming evidence of appellant's guilt, aside from the disputed material, then it must hold that the error is not prejudicial but is harmless beyond a reasonable doubt and affirm the trial court'sjudgment. Crim. R. 52, Chapman v. California (1967), 286 U.S. 18; See, State v. Davis (1975), 44 Ohio App. 2d 335. Upon a review of the record, after disregarding Aaeshah Robinson's mother's opinion testimony about truthfulness, we find that there was substantial evidence of appellant's guilt of corruption of a minor. Accordingly, we conclude that the -8- admission of her mother's opinion testimony constituted harmless error. Appellant's first assignment of error is without merit and is overruled. Appellant argues in his second assignment of error that his conviction for corruption of a minor was not supported by sufficient evidence. In State v. Martin (1983), 20 Ohio App. 3d 172, 175, the Court stated: As to the claim of insufficient evidence, the test is whether after viewing the proba- tive evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319; .... Appellant was found guilty of Corruption of a Minor, in violation of R.C. 2907.04. R.C. 2907.04 provides in pertinent part: (A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows such other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard. Upon a careful review of the record in the instant case, we find that appellant's conviction for corruption of a minor was supported by sufficient evidence. Appellant had sexual inter- -9- course with his stepdaughter Aaeshah Robinson when she was under the age of sixteen years old. It was reasonable for the jury to conclude, on the basis of the evidence, that appellant was guilty beyond a reasonable doubt of corruption of a minor. Appellant's second assignment is not well taken and is overruled. Trial court judgment is affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and JOHN F. CORRIGAN, J., CONCUR. LEO M. SPELLACY 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. .