COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67819 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION SAMUEL TEASLEY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 17, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-307174 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue A. STEVEN DEVER, ESQ. Cleveland, Ohio 44103 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., P.J.: Defendant-appellant Samuel Teasley appeals his convictions for rape, in violation of R.C. 2907.02, felonious sexual penetration, in violation of R.C. 2907.12, and kidnapping in violation of R.C. 2905.01. Each count contains an aggravated felony specification which was stipulated to prior to trial. The trial court sentenced the appellant to a term of incarceration of ten to twenty-five years on each count, each to be served concurrently. On January 12, 1994, Shirley Croff, the victim, attempted to visit her cousin who resides at East 65th Street and Whittier, in Cleveland, Ohio. Her cousin was not home, and after waiting some length of time at a neighbor's home for his return, she began to walk to her uncle's home at East 107th Street and Euclid Avenue. Ms. Croff did not have sufficient funds for bus fare. The time was approximately 2:00 a.m. Between East 70th and East 71st Street and Hough, the appellant pulled up beside her in a white car, with a black top. He offered her a ride. She accepted because she was eight months pregnant, there was snow on the ground, the weather was very cold, and she believed she would be safe because the appellant was an older gentleman. At East 75th Street the appellant pulled over, and pulled out a knife. The appellant hit Ms. Croff, and demanded oral sex. She was terrified and told him to put away the knife, she would - 3 - do whatever he asked. She began to do as he demanded, she was crying, and she informed him that she was pregnant. The appellant wanted to see her vagina, so she pulled down her clothing and opened her legs. The appellant viewed her with a flashlight. She was then told to proceed with the oral sex. As she did this he penetrated her vagina with his fingers. Because this hurt, she was afraid he would break her water. When she told the appellant he was hurting her, he told her to finish or he would leave her and her baby where they were at (T. 150). At this point she started to fight back, and he grabbed for the knife. She bit him on the hand, and managed to retrieve the knife. She exited the car, and ran screaming. She fell several times, and finally arrived at Lexington Village Apartments. At Lexington Village the security guard telephoned the police. She related her experience to the police. She refused to go to the hospital because she was scared, embarrassed and ashamed. She had a scheduled medical appointment the next day, and waited to tell her doctor. When interviewed by the police she gave a description of a man with no teeth or having something wrong with his teeth. After the officers left, she began walking once more. Another zone car picked her up and escorted her to the place where the appellant was located. She identified the appellant's vehicle and identified the appellant as her attacker. At this point she informed the police that she had the appellant's knife. She turned the knife over to the officers, and they placed it in a - 4 - plastic bag. The police then escorted her to her uncle's home where she bathed, and washed out her mouth. On January 14, 1994, she kept her medical appointment. She was admitted to the hospital overnight and tested for sexually transmitted diseases. Her child was born with no ill effects from this event. After her release she went to the Police Station and made a statement. Ms. Croff testified that she had used cocaine one week prior to this incident, and on the evening of the rape had imbibed one beer. Cleveland Police Officer Gregory Cornett testified that he was called to the area of Lexington and Hough between 2:45 a.m. and 3:00 a.m. on January 12, 1994. The victim was in the care of the security guard, she was emotionally drawn, tearful, and may have been in shock. She described her attacker as a black male, forty years of age, with a bluish coat and missing or messed up teeth. He was driving a white car with a black top. After spending twenty to thirty minutes with Ms. Croff, who refused medical attention, the officers left to tour the area and search for the suspect. Officer Cornett testified that his vehicle was stopped at East 86th and Hough, facing eastbound, and speaking with another zone car. The zone cars did not have overhead lights on. The officers observed a white vehicle with a black top approaching them westbound on Hough. The vehicle slowly stopped in the area of East 85th or East 86th Street. The vehicle then made a U- - 5 - turn, and proceeded eastbound on Hough. Since the vehicle matched the description given by Ms. Croff, the officers pursued, and stopped the car near East 105th Street and Wade Park. Upon approaching the car, the officer determined that the driver, the appellant, matched the description given by the victim, and noticed the drivers teeth were jagged, the tops were missing. When the appellant exited the vehicle, the officers observed that there were bite marks on one finger. Another zone car was recruited to bring the victim to identify the appellant. Once Ms. Croff identified the appellant, he was informed of his Constitutional rights, and transported to the police station. The victim was taken to her uncle's home. The security officer for Lexington Village Apartments, Carl Brathwait, testified that Ms. Croff arrived at the apartments very upset. She was crying and screaming. She informed him she had been raped, and he notified the police. Mr. Brathwait testified that the officers did not seem concerned about Ms. Croff, and failed to ask her if she needed medical attention. Cleveland Police Detective Gregory King testified that he is assigned to the sex crimes and child abuse unit of the police department. After he received a statement from the victim, he interviewed the appellant. He advised the appellant of his Constitutional rights and the allegations against him. Upon questioning, the appellant stated that he had not been in the company of any female, and then he stated that he had stopped and talked to two ladies while he was searching for a restaurant. - 6 - Since the appellant lived in the general area, Detective King asked him why he needed directions. The detective testified that at this point the appellant indicated that he would rather speak to an attorney, and the interrogation was ended (T. 243). The detective further testified that the victim has no criminal record. The appellant sets forth four assignments of error: The first assignment of error: THE TRIAL COURT'S INSTRUCTION ON FLIGHT VIOLATED THE APPELLANT'S FIFTH AND FOURTEENTH AMENDMENT RIGHT TO REMAIN SILENT AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND WAS PLAIN ERROR. The trial court, without objection from defense counsel, instructed the jury: Mr. Teasley in this case did not testify. It is not necessary that the defendant take the witness stand. Indeed, he has a constitutional right not to testify, and the fact that the defendant did not testify must not be considered by you for any purpose. In this case, ladies and gentlemen, there is evidence tending to indicate that the defendant fled or attempted to flee from the vicinity of the alleged crime, and in this connection, you are instructed that flight, in and of itself, does not raise a presumption of guilt, but unless satisfactorily explained, it tends to show the consciousness of guilt or a guilty connection with the crime. (T. 310-311.) The appellant argues that the testimony of flight given by Officer Cornett was insufficient to instruct the jury on flight, and that it was plain error to do so. The appellant also states that the instruction itself was improper because it placed a burden on him to satisfactorily explain his flight in violation his right to remain silent as guaranteed by the Ohio - 7 - Constitution. Plain error is reversible error not objected to at trial which, if permitted, would have a material adverse effect on the character and public confidence in judicial proceedings. State v. Black (1991), 75 Ohio App.3d 667. Crim.R. 52(B) states that plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. The plain error rule should be applied with the utmost caution and should be invoked only to prevent a clear miscarriage of justice. State v. Underwood (1983), 3 Ohio St.3d 12. This court, in citing to State v. Sneed (1992), 63 Ohio St.3d 3, has held that it is well settled that a criminal defendant is entitled to a complete and accurate jury instruction on all issues raised by the evidence. State v. Sanchez (June 9, 1994), Cuyahoga App. No. 62797, unreported. In Sanchez, this court also cited State v. Price (1979), 60 Ohio St.2d 136, and Cupp v. Naughten (1973) 414 U.S. 141, which held that when reviewing the trial court's charge, "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." When reviewing the overall jury instructions given by the trial court, it is evident that the record contains sufficient evidence to charge the jury on the appellant's attempt to flee from the police officers. Officer Cornett's testimony was clear and precise, and absent an objection from appellant's counsel, the court committed no error. - 8 - In State v. Wilson (1988), 47 Ohio App.3d 136, this court decided a remarkably similar case. The trial court instructed the jury with the same instruction as given in the case sub judice, and the defendant's counsel raised no objection. The court cited to State v. Long (1978), 53 Ohio St.2d 91, and reiterated that a jury instruction does not constitute plain error or a defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise. The court proceeded with a plain error analysis, and held that any error made in the charge did not amount to plain error. See also State v. Gee (June 2, 1994), Cuyahoga App. No. 64410, unreported. In other cases, this court has expressed some concern on a similar instruction regarding a defendant's flight. See State v. Williams (Dec. 17, 1992), Cuyahoga App. No. 61262, unreported; and State v. Harris (Apr. 10, 1986), Cuyahoga App. No. 50117, unreported. However, in State v. Mosley (June 23, 1994), Cuyahoga App. No. 65649, unreported, this court held that where a "flight" instruction has been given, "The trial court has to be extremely cautious to avoid either (1) an express statement that a defendant must satisfactorily explain his flight in order to avoid a "consciousness of guilt" finding, thereby shifting the burden to the defendant, or (2) an inference that a defendant's choice not to testify at trial in order to rebut the "consciousness of guilt" somehow proves his guilt." In the case sub judice, the court clearly instructed the - 9 - jury that the appellant has a constitutional right not to testify, and that the fact that he exercised that right must not be considered for any purpose. In addition, the statement made by the appellant to the police was testified to by Detective King. In his interview, the appellant did make an explanation of his activities that evening. The jury was entitled to weigh the explanation as instructed in the jury charges. The first assignment of error is overruled. The second assignment of error: TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO OBJECT TO THE IMPROPER JURY INSTRUCTION CONCERNING FLIGHT. The appellant argues that he was rendered ineffective assistance of counsel when counsel failed to object to the jury instruction on flight. A two-pronged test is applied when determining whether or not a defendant was rendered ineffective assistance of counsel. Strickland v. Washington (1984), 466 U.S. 668; State v. Lytle (1976), 48 Ohio St.2d 391. In the previous assignment of error, we determined that the trial court did not err when it instructed the jury on flight. Since the court did not err in its charge to the jury, counsel could not have erred in failing to raise an objection which could have been properly overruled. The second assignment of error is overruled. The appellant's third assignment of error: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ALLOWED THE STATE TO ELICIT TESTIMONY THAT THE APPELLANT INVOKED HIS RIGHT TO COUNSEL AND HIS RIGHT TO REMAIN - 10 - SILENT DURING A POST-MIRANDA INTERROGATION. The appellant argues that the court erred in permitting the State to elicit testimony that the appellant exercised his right to remain silent as provided for in Miranda v. Arizona (1966), 384 U.S. 436. The record reveals that the State made no comment on, nor questioned the witness further concerning the appellant's assertion of his rights (T. 243). The record also reveals that the appellant failed to object to this testimony at trial. Failure to call the trial court's attention to an error at a time when the error could have been avoided constitutes waiver of the error. State v. Williams (1977), 51 Ohio St.2d 112. Proceeding to the plain error analysis as outlined in the first assignment of error, the evidence presented at trial was such that the testimony complained of did not have a material adverse effect on the proceedings. The victim not only identified the appellant and his vehicle, but indicated she had bitten his hand. Upon detaining the appellant a short time after the crime, the police testified that the appellant's finger had a fresh bite wound. With such precise evidence, any error by the State which resulted in the officer placing before the jury the appellant's desire to seek counsel was clearly harmless. The third assignment of error is overruled. The appellant's fourth assignment of error: PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT DENIED THE APPELLANT A FAIR TRIAL AND DUE PROCESS IN VIOLATION OF THE U.S. AND OHIO CONSTITUTIONS. - 11 - The appellant states that the remarks made by the prosecutor during closing argument deprived the appellant of a fair trial. Absent an objection by the appellant at the time the alleged errors were committed, such errors have been waived. Williams, supra. The fourth assignment of error is overruled. Judgment 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. PRYATEL*, J., CONCURS; KARPINSKY, J., CONCURS; WITH ATTACHED CONCURRING OPINION. JAMES D. SWEENEY PRESIDING JUDGE *Judge August Pryatel, Retired, of the Eighth District Court of Appeals, sitting by assignment. 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 the time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67819 : STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING -vs- : : OPINION SAMUEL TEASLEY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 17, 1995 KARPINSKI, J., CONCURRING: I concur in the majority opinion, but write separately to recommend use of the following instruction concerning flight when warranted by the evidence and the defendant does not testify at trial: In this case, ladies and gentlemen, evidence was presented that could lead you to believe the defendant fled or attempted to flee from the vicinity of the alleged crime, and in this connection, you are instructed that flight, in and of itself, does not raise a presumption of guilt. However, this flight, unless satisfactorily explained by other evidence or defendant's prior statements or actions, tends to show .