COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68419 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANTHONY BUCKLEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 22, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 308506 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. James A. Draper, Esq. Cuyahoga County Prosecutor Cuyahoga County Public By: Joseph V. Hoffer, Esq. Defender Assistant Prosecuting Atty. By: Elise Hara, Esq. The Justice Center Assistant Public Defender 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113-1569 -2- -3- HARPER, J.: Defendant-appellant, Anthony Buckley, appeals from his conviction for attempted rape following a bench trial in the Court of Common Pleas of Cuyahoga County. Appellant submits that he was denied the effective assistance of counsel, the introduction of hearsay testimony constituted plain error, and his conviction is against the manifest weight of the evidence. A careful review of the record compels affirmance. I. Eight-year old Cierra Martin lived with her mother, Linda George, and her grandmother, Shirley George, at 930 Paxton Road, Cleveland, Ohio. Appellant was Shirley's husband and Cierra's step-grandfather. On the afternoon of March 5, 1994, Cierra's cousins, Shahara, Lenin and Russell, and her aunts, were visiting at the Paxton Road residence. After Cierra's mom, aunts and appellant left, Cierra went into Shirley's and appellant's bedroom by herself to watch television. Shahara, Lenin, Russell and Shirley remained and fell asleep in the front room. Cierra saw appellant return home, after which he entered the bedroom, and shut and locked the door. Appellant asked Cierra "you want to do it," to which she responded, "no." Cierra explained that she understood "want to do it" as having sex. Appellant then pulled down Cierra's pants. Cierra asked for her mother as she tried to pull her pants back up. Cierra testified that appellant who had his pants off, "[t]hen put his thing in me." At trial she -4- pointed to her vaginal area as the location where appellant put his "thing," and stated that appellant's "thing" was on the front part of his body. Appellant stopped what he was doing when Shahara opened the bedroom door. Cierra then pulled on her pants and left the bedroom. Though she was crying during the episode, Cierra testified that she was not crying when she left the room. Cierra's cross-examination revealed that the first time she ever told anyone about appellant's "thing" entering her about an inch and a half was during her direct examination. She was questioned as to whether appellant put his "thing" in her, or if he "tried to" do so. Finally, Cierra's direct testimony included a description of how appellant put his "thing" into her mouth on March 5, 1994. She, however, recalled during cross-examination that this event occurred when she was either five or six years old, and not in March 1994. Cierra's thirteen-year old cousin, Shahara, was asleep on the couch in the front room of the Paxton apartment when she was awakened by Cierra saying, "no, stop it, I don't want to." Shahara woke up her fourteen-year old cousin, Russell, and her brother, Lenin, and the three of them proceeded to the bedroom. Cierra's grandmother was still asleep on the couch. Russell heard Cierra repeatedly say, "no, no" and something like "stop," in a miserable tone. Shahara tried to push open the door, but could only open it slightly as clothes were on the other side. Since Shahara and Russell could not see inside the bedroom, they returned to the front room. -5- Cierra came into the front room approximately two minutes later. Both Shahara and Russell recalled that Cierra was crying, and her pants were unzipped and unbuttoned. Russell also described her hair as all "messed up." Appellant entered the front room a few minutes later, and sat by Shirley who was still asleep. Shahara, Russell and Lenin questioned Cierra about what happened in the bedroom. Shahara testified that Cierra stated that appellant unzipped his pants and "tried to stick it in her and his thing in her mouth." Russell testified that Cierra told him that appellant "made her suck his penis," "showed her his penis," and "stuck his penis in her." During cross-examination, Russell clarified that Cierra did not use the word "penis" or "thing" when she spoke with him, but used the "D" word. Shortly after speaking with Cierra, Russell told his mother about what happened between appellant and Cierra when she returned to the apartment. Russell then told Cierra's mother, Linda George, who in turn spoke with Cierra. Linda testified that Cierra looked "really scared," and started to cry when asked about what happened in the bedroom. Cierra told her that appellant "put his thing in her thing." Linda's attempts to wake up appellant who was asleep in his bed were unsuccessful. She, however, woke up her mother and informed her of appellant's actions, and then telephoned the police. Linda related during cross-examination that Cierra told her about a prior incident with appellant when Cierra was six years old. Regarding the March 1994 incident, she denied that she ever -6- told any hospital personnel that appellant "attempted" to put his penis in Cierra's vagina. Rather, she told them that appellant put his penis in her vagina. Cierra was taken to Meridia Huron Hospital for a medical examination. Her medical records indicate that the oral, vaginal and anal swabs which were part of her rape kit, all tested negative for semen, spermatozoa and blood. Karin Van Heiningen, a social worker with the sex abuse department of the Cuyahoga County Department of Children and Family Services, interviewed Cierra on March 7, 1994. According to Van Heiningen, an intake officer, the purpose of the initial interview was to ensure Cierra's safety, i.e., prevent future abuse situations, and to assist in the healing process. Van Heiningen identified State's Exhibit Nos. 8 and 9, two anatomical drawings which were selected by Cierra, one of an adult male and the other of a grammar school female. Van Heiningen then offered the following testimony about the drawings: Q. Looking at State's Exhibit No. 8. Had she previously identified any portion of that particular drawing? *** A. Yes, she did. Q. What portion did she identify? A. She identified the penis, to the thing that she stated before. *** Q. On No. 8, is there any handwriting on that? A. Yes. -7- Q. How did that handwriting get there? A. I wrote it down right after Cierra indicated that part of the body, which she called the thing. Q. What does that appear next to? A. To the penis. Q. Directing your attention to State's Exhibit No. 9, that's the grammar school female? A. Yes, it is. Q. Is there any part of that anatomy *** that Cierra Martin had identified in previous conversations? A. Yes. Again, she identified the part of the body that she called thing. Q. Is there any handwriting appearing next to that thing part? A. Yes. Q. And where is that part? A. That's the vagina. Q. And how is it labeled? A. It's labeled thing. Q. Who put that on there? A. I did. *** Appellant's sole defense witness was Donald K. Spaner, M.D., the emergency room physician who examined Cierra when she was brought to the hospital on March 5, 1994. He testified that the examination revealed no trauma to the vaginal area, including her hymen being intact. Dr. Spaner opined that it was not likely that -8- appellant inserted his penis into Cierra's vagina as far as she testified, because he observed no abrasions in the area. During cross-examination, Dr. Spaner answered in the negative when questioned whether no physical findings meant that appellant did not perforate Cierra's vulva and labia area. In other words, considering Cierra's statement to him that appellant penetrated her mouth and vagina with his penis, the lack of any medical evidence did not rule out sexual abuse. The events of March 5, 1994 led to appellant's March 16, 1994 indictment for one count of rape, R.C. 2907.02, with two aggravated felony specifications. Appellant waived his right to trial by jury, and proceeded to bench trial on December 7, 1994. The trial court found appellant not guilty of rape as charged in the indictment, but guilty of the lesser included offense of attempted rape, R.C. 2907.02 and 2923.02. Appellant was thereafter sentenced to a term of ten to fifteen years. II. Appellant appeals from his conviction for attempted rape, assigning error as follows: I. MR. BUCKLEY WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. II. THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE OFFENSES HAD BEEN PROVED BEYOND A REASONABLE DOUBT. -9- III. PLAIN ERROR WAS COMMITTED BY THE ADMISSION OF HEARSAY TESTIMONY OF AN UNCERTIFIED SOCIAL WORKER AND THE COMPLAINANT'S STATEMENTS TO THE SOCIAL WORKER ARE NOT ADMISSIBLE AS STATEMENTS MADE FOR THE PURPOSE OF MEDICAL TREATMENT OR DIAGNOSIS. A. Appellant, in his first assignment of error, focuses on defense counsel's recurring reference to appellant's "attempt" to put his penis in Cierra's vagina as amounting to ineffective assistance of counsel. Specifically, appellant asserts that defense counsel failed to apprise the trial court of the lesser included offense of gross sexual imposition as an alternative not only to the charge of rape, but to attempted rape as well. Since gross sexual imposition carries a less severe sentence than attempted rape, appellant argues that he was denied constitu- tionally guaranteed effective assistance of counsel when counsel failed to instruct the trial court to find him guilty of gross sexual imposition. Attempted rape and gross sexual imposition are lesser included offenses of rape. State v. Johnson (1988), 36 Ohio St.3d 224. A charge on a lesser included offense is appropriate when the evidence presented "would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense." State v. Thomas (1988), 40 Ohio St.3d 213, paragraph two of the syllabus, certiorari denied (1989), 493 U.S. 826, 110 S.Ct. 89, 107 L.Ed.2d 54. The present case was tried to the bench, not to a jury. The trial court heard all of the evidence. In a bench trial, a -10- presumption arises that a judge considers "*** only the relevant, material and competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record. [Citation omitted.]" State v. Eubank (1979), 60 Ohio St.2d 183, 187. Absent any indication to the contrary, this court sees no reason to conclude that the trial court did not automatically consider any lesser included offense warranted by the evidence even if defense counsel did not "instruct" it as to the lesser included offense. See, State v. Bozeman (Apr. 20, 1994), Montgomery App. No. 13741, unreported; State v. Williams (June 1, 1993), Butler App. No. CA92- 07-133, unreported; State v. Leibold (Mar. 11, 1993), Cuyahoga App. No. 62071, unreported. Moreover, a presumption that a properly licensed attorney executes his legal duty in an ethical and competent manner must be applied to any claim of ineffective assistance of counsel. State v. Smith (1985), 17 Ohio St.3d 98, 100; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301. Since it is presumed that a court in a bench trial considers all lesser included offenses which are supported by the evidence, defense counsel herein was not ineffective in failing to request the consideration of gross sexual imposition. See, 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, certiorari denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768. Finally, "sexual conduct" is an element of the offense of rape. R.C. 2907.02. As is relevant to this case, "sexual conduct" means vaginal intercourse. R.C. 2907.01(A). The trial court had -11- to find, beyond a reasonable doubt, that appellant engaged in conduct which, if successful, would have resulted in vaginal intercourse in order to convict appellant of attempted rape. R.C. 2923.02. Gross sexual imposition, on the other hand, includes the element of "sexual contact." R.C. 2907.05. "Sexual contact" means "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region *** for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). Based upon the evidence presented by the state, and as is discussed infra in appellant's second assignment of error, the trial court reasonably concluded that appellant attempted to vaginally rape Cierra. Under these circumstances, defense counsel's failure to bring gross sexual imposition to the attention of the trial court did not constitute ineffective assistance of counsel. See, State v. Clark (Feb. 16, 1995), Cuyahoga App. No. 65805, unreported. Appellant's first assignment of error is overruled. B. Appellant partially points to inconsistencies in Cierra's testimony to demonstrate that the trial court lost its way in finding him guilty of attempted rape. In comparing Cierra's testimony to that of her cousins, these inconsistencies are whether appellant placed his penis inside her mouth or in her vagina on March 5, 1994; whether he locked the door behind him when he entered the bedroom; and whether Cierra cried in the presence of her cousins. Appellant argues that these inconsistencies and the -12- lack of physical evidence, substantially weakened Cierra's testimony, and establishes his conviction as being against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: [T]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** (Citations omitted.) Id., 175. See, Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. Moreover, this court "'may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt.'" State v. Hawkins (1993), 66 Ohio St.3d 339, 344, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33. A guilty verdict will not be reversed based on manifest weight of the evidence if there was sufficient evidence for the trier of fact to find a defendant guilty beyond a reasonable doubt. State v. Brown (1988), 38 Ohio St.3d 305, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239; State v. Rios (1991), 75 Ohio App.3d 288, 291; see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. It must be stressed that the weight of the evidence and the credibility of the witnesses are issues properly left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d -13- 465, 476; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. R.C. 2907.02 provides in relevant part: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender ***, when any of the following applies: *** (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. "Sexual conduct" includes "vaginal intercourse between a male and female." R.C. 2907.01(A). Moreover, "[p]enetration, however slight, is sufficient to complete vaginal or anal intercourse." Id. R.C. 2923.02(A) reads in part: No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense. A criminal attempt is committed "*** when one purposely does or omits to do anything which is an act or omission constituting a substantial step in a course of criminal conduct planned to culminate in the commission of the crime." State v. Woods (1976), 48 Ohio St.2d 127, paragraph one of the syllabus. Furthermore, A defendant's conduct must be strongly corroborative of his or her criminal purpose in order to constitute a substantial step. Id. The emphasis is on what the defendant has done, and not on what remains to be done. State v. Brooks (1989), 44 Ohio St.3d 185, 191. As the court in Woods explained, -14- [t]he difficulty is to formulate a standard that excludes preparations prior to an actual attempt to commit a crime, while including, as punishable, those acts which are so dangerously close to resulting in a crime that intervention and arrest by the police are justified, even before the "last proximate act." Id., 131-132. In the within case, Cierra testified that appellant entered the bedroom on March 5, 1994, took off his pants and her pants, and then placed his "thing" inside her "thing." She communicated to the trial court that she meant appellant's penis and her vagina as the "things." Cierra's cousin, Shahara, was awakened when she heard Cierra stating "no" and "stop" while in the bedroom. Cierra's other cousin, Russell, also heard Cierra's statements to this effect. When Cierra left the bedroom, Shahara and Russell noticed that her pants were unbuttoned and unzipped, and Russell noted that her hair was "messed up." Cierra also almost immediately told Shahara and Russell that appellant placed his "thing" or penis in her mouth. Cierra's mother also learned from Cierra that appellant "put his thing in her thing." Pertaining to Cierra's confusion as to whether appellant placed his penis into her mouth on March 5, 1994, the trial court acknowledged this factor, finding that appellant could only have committed, if anything at all, vaginal rape. The trial court then found that the state failed to prove the element of penetration. Despite the other "inconsistencies" cited by appellant, and the lack of physical evidence, the remaining evidence properly allowed the trial court to find, beyond a reasonable doubt, appellant -15- engaged in conduct which, if successful, would have resulted in the crime of rape. Dr. Spaner testified that the lack of physical evidence did not rule out the commission of the offense. Since this court must defer to the fact-finder's ability to observe the witnesses, study their demeanor and judge the credibility under all of the circumstances, we find no error in the trial court's conclusion. Appellant's conviction for attempted rape is thus not reversible as being against the manifest weight of the evidence. Brown; Rios. Appellant's second assignment of error is overruled. C. Appellant, in his third and final assignment of error, challenges the introduction of Van Heiningen's testimony regarding her interaction with Cierra and the identification of State's Exhibit Nos. 8 and 9, the anatomically correct drawings. Specifically, Van Heiningen testified that Cierra identified the portions of the adult male and the grammar school female that she termed "things." Appellant asserts that the only reason the state offered this "hearsay" testimony was to bolster Cierra's credibility, and argues its introduction either amounted to plain error or ineffective assistance of counsel. The state attempted to question Van Heiningen as to what Cierra told her during the interview on March 7, 1994. The trial court sustained defense counsel's objections to this line of questioning. Therefore, the only testimony that Van Heiningen offered was that Cierra identified a penis and vagina as "things." -16- Initially, the state never offered Van Heiningen as an expert witness. She rendered no opinion as to whether appellant committed the alleged acts or whether Cierra was a credible witness. Appellant's Evid.R. 702 attack on her testimony is, therefore, unjustified. Compare, State v. Shepherd (July 1, 1993), Cuyahoga App. No. 62894, unreported (child victim's statements to student interns at child guidance center were admissible under Evid.R. 803[4] as witnesses rendered no opinions as to allegations or credibility, and were not offered as expert witnesses). Hearsay is defined in Evid. 801(C) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A "statement is either an oral or written assertion, or nonverbal conduct which is intended to be an assertion." Evid.R. 801(A). In State v. Wagner (1986), 30 Ohio App.3d 261, the child victim maneuvered anatomically correct dolls to demonstrate the defendant's actions. This court found that the child victim's demonstration constituted nonverbal conduct which was intended as an assertion under Evid.R. 801(A). Id., 262. We, therefore, applied the hearsay rule and ultimately determined that the child victim's demonstration fell within the excited utterance exception to the hearsay rule pursuant to Evid.R. 803(2). Id., 264. A police officer who viewed the demonstration was, therefore, permitted to describe the demonstration at trial. Id. Despite our finding in Wagner that a child victim's demonstration with dolls amounted to hearsay, the present case is -17- easily distinguishable from Wagner. Van Heiningen was not allowed to testify as to the events of March 5, 1994 as learned from Cierra on March 7, 1994. She merely testified that Cierra identified the "things" on two anatomically correct drawings, not that Cierra demonstrated what appellant did or attempted to do as in Wagner, or implicated appellant in any activity. The testimony in Wagner was meant to prove the truth of the matter asserted, i.e., that the defendant committed the acts. Herein, Cierra's identification of the "things" was not meant to prove that they were "things," as correctly discerned by the state. Van Heiningen's testimony, therefore, failed to amount to hearsay under Evid.R. 801. For the same reasoning, the cases cited by appellant in support of this assigmnent are not applicable. These cases are State v. Chappell (1994), 97 Ohio App.3d 515 and Presley v. Presley (1990), 71 Ohio App.3d 34. This court discussed Evid.R. 803(4) as it relates to social workers in Chappell. We stated, "[w]e are equally not prepared to hold that a social worker by merely being a social worker is automatically included in the category of individuals who can render treatment or diagnose sex abuse victims." Id., 530-531. After analyzing the social worker's function and testimony, we concluded that the trial court abused its discretion in permitting the testimony which included the statement, "[s]he [the child victim] stated that James had hurt her." Id., 534. No such testimony was offered by Van Heiningen in the present case. -18- Moreover, though we found the social workers' testimony was inadmissible in Chappell, we nonetheless determined that the admission of it was harmless error since the child victim testified at trial and was subjected to cross-examination. Id., 535. In Presley, the appellant asserted on appeal that the trial court erred in not permitting a social worker to testify at a motion to modify visitation hearing. Presley, 37. The body of the opinion fails to disclose the proposed content of the social worker's testimony, but it appears that the testimony would have included allegations of sexual abuse made by a child. Conse- quently, our subsequent application of Evid.R. 803(4) was warranted unlike in the within case. In conclusion, as previously noted, appellant's case was tried to the bench. "We therefore give weight to the fact this case was tried to the court, rather than a jury, and presume that the trial judge considered only relevant, competent and material evidence in arriving at his decision." State v. Philpot (Feb. 22, 1990), Cuyahoga App. No. 56596, unreported. See, Eubank and Crisp, supra. Appellant's third assignment of error is overruled. Judgment affirmed. -19- 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 Cuyahoga County 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, J., AND TERRENCE O'DONNELL, J., CONCUR. PRESIDING JUDGE SARA J. HARPER 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 .