COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67235 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WALLACE HANLEY, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : APRIL 13, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-304588 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Michael Bednar Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Brian D. Dunbar The Truman Building 1030 Euclid Avenue Suite 605 Cleveland, Ohio 44115 -2- NAHRA, J.: Appellant, Wallace Hanley, is appealing his conviction on six counts of gross sexual imposition. He contends the jury instruction was improper, he was denied effective assistance of counsel and a juror was permitted to remain on the jury after indicating bias. For the following reasons, we affirm. Kathleen Hanley, appellant's ex-wife, testified that she and appellant had two daughters, Christine, born June 29, 1982, and Jennifer, born March 16, 1984. In the fall of 1993, Kathleen noticed that Christine had a change in attitude about visiting her father. She asked Christine numerous times what was wrong. Finally, Christine told her mother that sometime during July of 1992, her father put his hand down her pants, on her vagina. Christine said appellant was also touching Jennifer. Kathleen then questioned Jennifer, who stated that her father had touched her vagina five or six times since the beginning of the 1993-94 school year. Appellant's ex-wife further testified that she and appellant had disputes over child support. Once, appellant reported her for child abuse. Christine and Jennifer Hanley testified that their father had touched their vaginas and they had told their mother about the touching. A social worker and a police officer testified that the children told them about the touching incidents. Appellant's brother, Mark Hanley, testified that he lived with appellant in the apartment where the alleged incidents took place. -3- He did not observe anything unusual. Mark believed the children were fabricating the incidents because their mother said their father did not love them. Appellant testified that he did not touch the girls. He did not get along with his ex-wife. I. Appellant's first assignment of error states: WHERE THE JURY WAS GIVEN AN IMPROPER JURY INSTRUCTION THAT DID NOT INCLUDE ALL THE NECESSARY ELEMENTS OF THE CHARGED OFFENSE, WHETHER THE COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT. The court instructed the jury as follows: If you find that the State of Ohio has proven by evidence which convinces you beyond a reasonable doubt that on or about these dates in question the Defendant had sexual contact with another, not his spouse, then you will render a verdict of finding the Defendant guilty of the crime of gross sexual imposition. The trial judge went on to instruct the jury that if they found appellant guilty of gross sexual imposition, they must determine whether the victims were under thirteen years old. The jury was told to fill in the blanks on the verdict forms as to whether the victims were or were not under thirteen and they found they were under thirteen. Defense counsel objected to these instructions because the prosecution did not introduce birth certificates proving the childrens' ages. The trial court's instruction, when viewed as a whole, was essentially correct. See State v. Price (1979), 60 Ohio St.2d 136 (jury instructions must be viewed as a whole). The jury was -4- instructed to find the essential elements of gross sexual imposition. See R.C. 2907.05. The trial judge may have technically erred because a finding the victim was under thirteen is essential to a finding of guilt of gross sexual imposition, R.C. 2907.05. This technical error was not prejudicial to appellant. See Crim.R. 52(A). Additionally, appellant never objected on this basis, so the error was waived unless the outcome of the trial would clearly have been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12, Crim.R. 30(A). The error alleged here would not have effected the outcome of the trial. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: WHETHER THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. In alleging ineffective assistance of counsel, appellant must show his counsel substantially violated an essential duty and appellant was prejudiced as a result. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, State v. Bradley (1989), 42 Ohio St.3d 136. Appellant asserts his counsel violated an essential duty and prejudiced him by inadequately summarizing the evidence in opening statement, failing to object to hearsay statements that the victims made to appellant's ex-wife, improper cross-examination, failing to object to improper jury instructions and failing to call an expert witness. -5- Defense counsel's opening statement advanced the defense's position that Kathleen Hanley induced the children to fabricate the incident, and summarized the evidence which would prove appellant was not guilty. See Maggio v. City of Cleveland (1949), 151 Ohio St. 136 (purpose of opening statement). Appellant fails to show how the opening statement violated an essential duty of defense counsel. Appellee asserts that Kathleen Hanley's testimony concerning her daughters' out of court statements may have been admissible under the excited utterance exception to the hearsay rule. See State v. Wallace (1988), 37 Ohio St.3d 87, 89, Presley v. Presley (1990), 71 Ohio App.3d 34. In child abuse cases, the trial judge, in his discretion, may find that the child was still under the influence of the startling event, i.e. the abuse, such that the child's statement is not the product of reflective thought, even if there is a significant lapse of time between the event and the child's statement. Id. Even if the mother's testimony concerning the daughters' statements was hearsay and not admissible under the excited utterance exception, this testimony was merely cumulative. The girls testified that their father touched them and they eventually told their mother what happened. The social worker testified that 1 Christine and Jennifer told her about the touching. Thus, defense 1 The social worker's testimony was admissible under the hearsay exception for statements made for the purpose of medical treatment. Evid.R. 803(4), Presley, supra, State v. Dever (1992), 64 Ohio St.3d 401. -6- counsel's failure to object to this testimony was not prejudicial to appellant because the outcome of the trial would not have been different had the testimony been excluded. See Strickland v. Washington, supra. Appellant argues that defense counsel attempted to conduct improper cross-examination numerous times, and was once admonished by the court. Nothing in the record indicates that counsel's actions put appellant in an unfavorable light. The judge instructed the jury to disregard any statements or actions by the court which indicated a personal view on the case. It does not appear counsel substantially violated an essential duty by his cross-examination, or that appellant was prejudiced thereby. As discussed above, the jury instructions were proper, or at most contained a minor, technical error that did not prejudice appellant. Counsel cannot be deemed ineffective for making a futile objection. State v. Mitchell (1988), 53 Ohio App.3d 117, 119. Appellant has not shown that failing to call an expert witness was a substantial violation of counsel's essential duties. Deciding which witnesses to call is a strategy decision within the purview of defense counsel, and the court must give deference to such strategy decisions. State v. Coulter (1992), 75 Ohio App.3d 219, see Strickland v. Washington (1984), 466 U.S. 668, 689-690. Appellant has not shown how such a witness would have helped the defense. See Middletown v. Allen (1989), 63 Ohio App.3d 443, 448. There were no physical findings in dispute and expert testimony as -7- to the credibility of the victims is not admissible. State v. Boston (1989), 46 Ohio St.3d 108. Appellant has not shown his counsel substantially violated an essential duty and he was prejudiced thereby. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: WHERE, IN MID-TRIAL, A JUROR INDICATED THAT HE KNEW THE MOTHER OF THE VICTIMS AND COULD NOT BE IMPARTIAL, WHETHER THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL. This assignment of error lacks merit because after the juror told the court of his bias, the juror was dismissed and replaced with an alternate juror. No error occurred and appellant was not prejudiced. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -8- 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. BLACKMON, P.J., and MATIA, DAVID T., J., CONCUR. JOSEPH J. NAHRA 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. .