COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68762 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES BERRY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 2, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-315940 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: RICHARD J. BOMBIK, ESQ. DONALD GREEN, ESQ. Asst. County Prosecutor Asst. Public Defender The Justice Center, 8th Fl. 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, C.J. Defendant-appellant, James Berry ("appellant") appeals his conviction for rape in violation of R.C. 2907.02. The following facts were adduced at appellant's jury trial. Cleveland Police Officer Fabian Henderson testified that on March 22, 1991, he was patrolling the area around East 46th and Quincy located in Cleveland, Ohio. At about 5:00 a.m. Maya Turner ("victim"), wrapped in a curtain, waived Officer Henderson down and told him that she had just been raped by the appellant whom she identified standing on the street corner about 50 feet away. The victim only knew the appellant by the name of "Tank." Officer Henderson called for back up and then exited his patrol car. Officer Henderson stated he walked over to the appellant and when he was about 20 feet away he ordered the appellant to raise his hands and walk towards him. At that point, the appellant began to run and Officer Henderson chased him but lost sight of him behind an apartment building. Officer Henderson identified the appellant as the person whom the victim identified as the assailant and whom ran from him on the morning of March 22, 1991. Officer Henderson testified that the victim informed him where the rape occurred and he then went into the apartment building and examined the specific apartment unit. Officer Henderson stated that it was brought to his attention that an automobile belonged to - 3 - the appellant. Officer Henderson ran a computer check on the car and verified the appellant as the owner of the car. The victim testified that she is a recovering cocaine addict and was a prostitute in 1991, although she has not done drugs or prostituted herself for several years. On March 22, 1991, she was at East 46th Street and Quincy looking to buy drugs. She saw Tank and she asked him where she could buy some crack. The victim stated Tank was known in the drug community as a person who could locate drugs. Tank told her that Jamaicans were selling crack across the street. The victim stated that she went with Tank to the third floor of an apartment building and Tank pulled her into a vacant apartment and raped her. The victim identified the photographs of the apartment and items of clothing that was recovered. The victim testified that the appellant ejaculated inside of her. The victim then stated that she ran out of the apartment wrapped in a curtain and flagged down a police officer. She corroborated the testimony of Officer Henderson with respect to her pointing out the appellant and Officer Henderson's attempt to apprehend him. The victim then stated that she was transported to St. Vincent Charity Hospital where she was examined. The victim testified that in August of 1994, she saw Tank on Cedar Road located in Cleveland, Ohio and flagged down a police car. She informed the police officer that she saw the man that raped her in 1991. - 4 - Cleveland Police Officer Jeff Follmer testified that he was on patrol when the victim stopped him and identified the appellant as the man whom raped her in 1991. Officer Follmer detained the appellant and once he verified the 1991 incident he arrested the appellant. Scientific examiner, Joseph Serowik testified that he works in the forensic science laboratory unit for the Cleveland Police Department. Serowik stated that appellant's jeans which were left in the apartment tested positive for human blood. Serowik also testified that the vaginal smear slide from the rape kit prepared at St. Vincent's Hospital tested positive for the presence of spermatozoa which means the victim had sexual activity within 12 to 24 hours of the test. The appellant testified on direct examination that he knew the victim for a number of years, they would do drugs together quite frequently. The appellant denied having sex with the victim. On cross-examination, the appellant admitted to being in the apartment with the victim, but the victim and a Jamaican male robbed him of $100. The appellant denied that he was chased by the police on the morning of March 22, 1991, and claimed the police chased somebody else. The appellant asserted that he never went to the police station to retrieve his car because he was afraid of being accused of raping the victim. Appellant's sole assignment of error states: JAMES BERRY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND - 5 - FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Appellant maintains that he was denied his constitutional right to effective assistance of counsel. Specifically, appellant claims that his trial counsel failed to: (a) move the court to dismiss the indictment due to the unjustifiable pre-indictment delay; (b) move the court to dismiss at the conclusion of the evidence pursuant to Crim.R. 29; (c) effectively cross-examine the victim and point out the inconsistences in the evidence and (d) effectively question the appellant on direct examination. First we will address the standard of review for an appeal based on ineffective assistance of counsel. In order to establish a claim of ineffective assistance of counsel, the burden is on the defendant to show that counsel's performance was deficient and that such deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668; State v. Johnson (1986), 24 Ohio St.3d 87, 89. Defense strategy will not be second-guessed by reviewing courts when determining effective assistance of counsel. Strickland, supra, at 2065; State v. Smith (1991), 75 Ohio App.3d 73, 76. Appellant maintains that he received ineffective assistance of counsel because his defense counsel failed to move the court to dismiss the indictment based on unjustifiable pre-indictment delay. The Ohio Supreme Court has held: - 6 - An unjustifiable delay between the commission of an offense and a defendant's indictment therefor, which results in actual prejudice to the defendant, is a violation of the right to due process of law under Section 16, Article I of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. State v. Luck (1984), 15 Ohio St.3d 150, paragraph two of the syllabus. In Luck, supra, the court found the defendant prejudiced because of the sixteen year delay between the murder and her indictment due to several specifically named witnesses were unavailable to testify because they had died. Appellant claims that he was prejudiced by the unavailability of witnesses after more than three years had passed between the rape and the indictment. However, appellant does not specifically name any witnesses that are unavailable. Nor does appellant offer the reason for the unavailability of the witnesses. Accordingly, we find that appellant has not offered any evidence that he was prejudiced by the delay and therefore, appellant's counsel was not deficient for not moving the court to dismiss the indictment because of delay. Appellant also asserts he received ineffective assistance of counsel because his counsel failed to renew its Crim.R. 29 motion for dismissal at the close of evidence. Appellant claims this failure denies him the right to raise sufficiency of the evidence as an assignment of error before this court pursuant to State v. Barnett (1990), 67 Ohio App.3d 760. - 7 - We agree with appellant that his trial counsel did err when it failed to renew its Crim.R. 29 motion for dismissal. However, after a thorough review of the record we find that there was sufficient evidence to convict the appellant of rape. Therefore, trial counsel's mistake did not prejudice the appellant. Next, appellant maintains he did not receive effective assistance of counsel because his counsel failed to effectively cross-examine the victim and failed to effectively question him on direct examination. The law is clear in Ohio that defense strategy will not be second guessed. Smith, supra. In the present case, appellant's appeal is based on his counsel's trial strategy during direct and cross-examination. Pursuant to Smith, supra, we will not second guess defense counsel's strategy. Accordingly, appellant's sole assignment of error is overruled. Judgment 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 Court of Common Pleas 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. PATRICIA BLACKMON, J. DAVID T. MATIA, J., CONCUR. CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .