COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68679 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION HERBERT MANGUS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 8, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-297812 JUDGMENT: Affirmed and Remanded for Sentencing. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue EDWARD M. WALSH, ESQ. Cleveland, Ohio 44103-1125 Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was indicted for one count of rape against eighteen- year-old Elizabeth Peura, a mentally handicapped woman with the approximate mental age of a four-year-old. Appellant was tried before a jury and found to be guilty of the charged offense, March 25, 1994. The trial court sentenced appellant to a ten to twenty- five year term of incarceration, to run consecutive to an eighteen month term for an unrelated offense of having a weapon under a disability. The relevant facts of this sad incident are as follows: On May 28, 1993, Elizabeth came home from school at 3:30. She told her mother about her day and was particularly excited about bowling with her class. Elizabeth changed her clothes and left the house to play with the children in the neighborhood at about 4:00. It was a warm day. Elizabeth was wearing shorts, a t-shirt and tennis shoes. At approximately 4:30 Molley Allooh, who knew Elizabeth well, spoke with her briefly in the Alloohs' front yard. Appellant lived next door to the Alloohs. Mrs. Allooh saw Elizabeth in appellant's yard as Mrs. Allooh went inside to care for her four children. An hour and a half later Mrs. Allooh was tending to her dinner on the grill when her son went to appellant's house to ask if he could retrieve the ball the boy had inadvertently sent into appellant's backyard. Appellant came to the back gate to let Mrs. Allooh's son into the yard. Mrs. Allooh saw appellant and also Elizabeth - 3 - following behind him. Elizabeth was shaking her hands as she did when she became agitated. Most strikingly, however, Mrs. Allooh noted that Elizabeth was wearing her shorts with both legs coming through one of the leg holes. Elizabeth had not been dressed as such earlier when Mrs. Allooh had spoken with her. Mrs. Allooh ran to the Peuras' home, about ten houses down the street, to have Mrs. Peura come get her daughter. On her way back home, Mrs. Allooh passed Elizabeth walking in the direction of her own home. Mrs. Peura asked Elizabeth several questions before deciding that the Lakewood police should be notified. Elizabeth has difficulty communicating and her mother testified that Elizabeth did not in fact tell her what had happened on that day. On cross- examination, the defense asked if Elizabeth had talked to her mother on the day of the incident about what happened. Mrs. Peura responded that Elizabeth had not because it was very late by the time they came home from the hospital. On re-direct Mrs. Peura explained that Elizabeth told her later that appellant had touched her "back here," and had told her to be quiet. (TR. 235). Investigator Lawrence Ambrose came to the house and interviewed Elizabeth. He testified that Elizabeth told him "that she was sitting on the couch with him [appellant], and that he showed her some photos of himself, and that she also said for awhile, she was holding a red ball, and that the man took her shorts off." (TR. 247). Elizabeth told Ambrose that the man had touched her "butt" and indicated her buttocks, vagina and upper - 4 - legs. (TR. 247). According to Ambrose's testimony, Elizabeth "pointed towards her vagina and she said `hurt.'" (TR. 248). Furthermore, she told him "one time he yelled at her when she was making too much noise." (TR. 248). Ambrose transported Elizabeth to Lakewood Hospital. On a video taped deposition, played to the jury, Dr. Nelson testified that he performed an examination of Elizabeth on that evening and took samples from Elizabeth's body for the rape kit, which was sent for testing at the Bureau of Criminal Investigation ("BCI"). Dr. Nelson testified from his written record of the examination. In his notes Dr. Nelson had written, "patient states she was sexually penetrated and ejaculated upon by a known person." (Dep. 9). Dr. Nelson saw what appeared to be semen on Elizabeth's introitus and clitoris and in a vaginal pool, located at the top of the vaginal canal. He noted some abrasions on the vaginal walls. Although Dr. Nelson could not state that the abrasions were fresh, he testified that abrasions or tears, such as these, heal within forty-eight hours. Dr. Nelson also noted that the hymen was not intact. Elizabeth became uncooperative at the end of the examination so Dr. Nelson was unable to do a "wet prep," where a sample of the fluids from her vagina could be examined under a microscope for the presence of semen or spermatozoa. The samples taken by swabs and smears from the vagina, anus and mouth were sent to BCI. Dr. Nelson was asked by the prosecution if his findings - 5 - were consistent with sexual penetration. He responded, "Yes." (Dep. 33). James Wurster from BCI testified that he performed tests on the samples sent to him from the physical examination of Elizabeth and also on the bed sheets and clothing articles recovered from appellant's house. Wurster found no traces of semen on any of the articles or from the samples taken by Dr. Nelson. Neither did Wurster find anything of significance in the scraping taken from Elizabeth's fingernails. Wurster testified that it is quite rare to find evidence from fingernail scrapings. While Elizabeth was at Lakewood Hospital, appellant was arrested and his house was searched pursuant to a search warrant. Officer Beno transported appellant to the Lakewood jail and conducted a search of appellant's person at the jail. Beno testified that he noted fresh scratches on appellant's back, near the shoulder blade area which "appeared to be from somebody's fingernail." (TR. 363). Detective Robinson searched appellant's house and took as evidence bedding which had been described by Elizabeth as being a flower print. Robinson did not find any pictures of appellant which might have been shown to Elizabeth as she told Investigator Ambrose. Nor did Robinson see a red ball during the search. However, Sergeant Fred Wellman testified to having seen a bowling ball in a bowling bag in a room on the second floor. This room had been locked but the police broke the hasp off of the padlock to gain entry. At the time Sgt. Wellman saw the - 6 - bowling ball, its significance had not yet come to light in the investigation. After Elizabeth's physical examination by Dr. Nelson, Detective Erhardt and Jefferey Corbacho, Elizabeth's school principal, conducted a brief interview of Elizabeth at the hospital. Corbacho was notified of the situation due to his ability to communicate well with Elizabeth. He testified that Elizabeth was "very upset and embarrassed" in the hospital room. (TR. 277). Elizabeth told Corbacho that she had taken off her clothes and that the man had touched her. She indicated her buttocks, chest and legs as the areas which were touched. Elizabeth explained that she saw the man's penis when he took off his clothes. Corbacho testified that Elizabeth was familiar with the words "penis" and "vagina" from the sex education taught at the school, and knew the difference between the two. Corbacho asked what happened after the man took off his clothes. Elizabeth "said it hurt. And we asked where? and she again pointed between her legs." (TR. 283). Corbacho's testimony continued, "At the next point, Detective Erhardt asked, was he lying on top of you? The answer was yes. And what did you say? And she said it hurt and I said stop." (TR. 283). Testimony was adduced from Officer Montague, on duty at the jail the night appellant was arrested, as to comments made to the general prison population by appellant that night. Montague overheard appellant telling fellow prisoners "that he gave a - 7 - bowling ball to a little retarded girl and was receiving for pay- ment fucks, and he still had nine more fucks coming for payment." (TR. 372-73). Finally, appellant gave an oral statement to Detectives Erhardt and Incze the day after his arrest. After signing a form indicating that he was familiar with his rights, appellant told the detectives "that he wanted to set the record straight about the retard that wanted to have sex, that was having sex with every other boy in the neighborhood." (TR. 435). Appellant told the detectives that he had offered to sell a bowling ball to Elizabeth for twenty dollars, that she followed him upstairs while he was using the bathroom and grabbed his penis. He claimed to have rejected her advance. After he had returned to the first floor of his house he realized that she had gone upstairs. When he got to his bedroom appellant saw Elizabeth lying naked on the bed. Appellant stated that he then slapped her on the buttocks and told her to go home. After Detective Erhardt asked him how he could explain the presence of semen on Elizabeth, appellant offered the story that some must have come out of his penis when she was stroking it in the bathroom and that she then went to the bedroom and fingered herself. Appellant denied having had sex with Elizabeth. When the detective told appellant that Elizabeth had said that appellant had had sex with her and it hurt and she had told him to stop, appellant told the detectives that he was ready to go back to his cell and watch t.v. He asked them, "how much - 8 - time do you think I am going to get for this? * * * six months or a year ought to do it." (TR. 440). Appellant then laughed and returned to his cell. The State rested its case after the presentation of the foregoing testimony and evidence. Appellant testified on his own behalf. He admitted to bragging in the jail about the incident but said it was just a joke, then denied stating the details of the sex for the bowling ball transaction. Appellant's testimony was con- tradictory, belligerent and wholly lacking in credibility, from this Court's view. The jury must have thought so as well. Appellant filed a timely appeal from his conviction and sentencing, asserting three assignments of error. I THE EVIDENCE IS CONSTITUTIONALLY INSUFFICIENT TO SUSTAIN A CONVICTION OF RAPE IN VIOLATION OF R.C. 2907.02 PURSUANT TO COUNT ONE OF THE INDICTMENT. Appellant argues that the evidence of force was insufficient to meet the State's burden of proof. According to appellant, the evidence may have supported sexual battery but not rape. Appellant's argument is not well taken. R.C. 2907.02(A)(2) prohibits a person from engaging in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. "Force" is defined by R.C. 2901.01(A) as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." - 9 - The degree of force which must be proven by the State is set forth as follows: The force and violence necessary to commit the crime of rape depends upon the age, size and strength of the parties and their relation to each other. * * * State v. Eskridge (1988), 38 Ohio St.3d 56, paragraph one of the syllabus. In light of the surrounding circumstances we find substantial evidence from which the jury could have found beyond a reasonable doubt that appellant raped Elizabeth by force. The victim told Investigator Ambrose that appellant hurt her, while pointing toward her vagina. She also told Ambrose that appellant had yelled at her for making too much noise. Elizabeth later told her mother, too, that appellant had told her to be quiet. Testimony was given by Jefferey Corbacho that Elizabeth told him that appellant had hurt her, again while pointing between her legs. Detective Erhardt asked Elizabeth if appellant was lying on top of her, to which she answered "yes" and added that she had told appellant that it hurt and to stop. Dr. Nelson concluded, according to his notes from the examination that Elizabeth had been penetrated. Dr. Nelson also found abrasions on the vaginal walls. Officer Beno testified that appellant had fresh scratches on his back. These marks were inadequately explained by appellant as coming from the seat of police cruiser after he was given the "Rodney King treatment." Besides this testimonial evidence, we also note the disparity in the parties relation to each other. Elizabeth, age seventeen at - 10 - the time of the rape, had the mental capacity of a three or four- year-old. Appellant is forty-nine years old, the father of grown children. He took advantage of her excitement and interest in bowling to lure her into his home, where he committed an act which Elizabeth can not have understood beyond the pain and embarrassment she must have felt. We find ample evidence of force to support the State's burden as to that element of the rape offense. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. After a thorough review of the evidence, we find that such evidence, viewed in a light most favorable to the prosecution, could have easily convinced a jury to find the element of force proven beyond a reasonable doubt. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED WHEN IT ADMITTED OUT OF COURT STATEMENTS MADE BY A WITNESS, WHERE NO EXCEPTION TO EVID.R. 802 APPLIED. Appellant argues that Mrs. Peura's testimony that Elizabeth had told her several days after the incident that appellant had told her to be quiet during the incident was admitted in error. - 11 - Appellant asserts that none of the exceptions to the evidentiary rule prohibiting the admission of hearsay testimony applied in this instance. Appellant's argument is without merit. First, we note that the evidence does not indicate when Elizabeth spoke to her mother regarding the incident. The pertinent section of the trial transcript reads as follows: [On re-direct] Q Now, in response to Mr. Zingale's question, about your daughter telling you what happened to her, you indicated that she told you what happened to her after May 28, correct? A Yes, she would talk about it every now and then. Q What did she tell you happened to her? Mr. Zingale: Objection The Court: Overruled. A She would talk about -- she told me about being on his bed. She said he touched me back here. I mean, that's how she would talk to me. I honestly can't remember, she does not say penis. I don't know how she said that to me. She told me -- Mr. Zingale: I am going to object. The Court: Overruled. A He told her to be quiet. (TR. 234-35). At no point in that exchange was it clear when Elizabeth talked to her mother. It could have been the next morning. The police were called to the Peuras' home immediately after the incident and Elizabeth was involved with the ensuing investigation until eleven o'clock that evening when her mother took her home to bed. There was not an opportunity for Elizabeth to have time alone with her mother until the next day. We can not assume a time period in which to place these state- ments made by Elizabeth to her mother. Therefore, we are unable to review the applicability of Evid.R. 803(2), the excited utterance - 12 - hearsay exception, to these statements. We can not reverse the trial court's decision to admit the testimony without further proof that the admission was somehow an abuse of discretion. Furthermore, the testimony that Elizabeth had said that appellant told her to be quiet during the incident was corroborated by the testimony of Ambrose, one of the first officers to speak with Elizabeth upon arrival at her home. Also, the quantum of evidence without the statements made by Mrs. Peura sufficiently supports the rape conviction. We find that appellant was not prejudiced by the admission of the hearsay statements, regardless of whether or not the excited utterance exception was applicable. Appellant's second assignment of error is overruled. III THE APPELLANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL AS GUARANTEED BY THE SIXTH AND FOUR- TEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. Appellant asserts that his trial counsel's failure to request an instruction on sexual battery amounted to ineffective assistance of counsel, in violation of his constitutional right. Appellant argues that the lack of evidence of force or threat of force, as required to prove the offense of rape, could have led the jury to return a verdict of guilty on a lesser offense of sexual battery. We are not persuaded that appellant was afforded less than competent legal representation at the trial level. When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of - 13 - defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397. The issue before us is whether it was a substantial violation for defense counsel to fail to request an instruction on the offense of sexual battery. We find that it was not a violation of defense counsel's duty in representing appellant. Even though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evi- dence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense [citations omitted.] State v. Thomas (1988), 40 Ohio St.3d 213, paragraph two of the syllabus. Sexual battery may, under some circumstances, be a lesser included offense of rape. See, State v. Miller (1988), 44 Ohio App.3d 42 and State v. Wilkins (1980), 64 Ohio St.2d 382. Given the evidence of this case, appellant was not entitled to a jury instruction on sexual battery as a lesser included offense of rape where he denied any sexual conduct with Elizabeth, and the jury, considering such defense, could not reasonably have disbelieved the State's evidence of force and purposeful sexual conduct, and at the same time, reasonably believed that non- forcible sexual conduct took place under circumstances where appellant knew that Elizabeth's ability to appraise the nature of or to control her own conduct was substantially impaired. In order - 14 - to support an instruction on sexual battery, on the facts of this case, the jury would have had to disbelieve all testimony from both defense and prosecution and concoct its own version of the inci- dent. In that case, the jury could not be said to be reasonable in its beliefs and the instruction would still not be justified. Trial counsel did not violate any substantial duty in the failure to request an instruction which was not justified under the facts in evidence. Appellant's third assignment of error is over- ruled. We note a discrepancy in the sentencing of appellant by the trial court. In the transcript of the sentencing hearing, the trial judge sentenced appellant to ten to twenty-five years imprisonment, to run consecutive to the eighteen month sentence she gave him for the unrelated conviction of having a weapon while under disability. In the journalized entry contained in the file record, appellant's sentences are given as concurrent in time. We remand this for a correction of sentencing terms to reflect con- sistency between the hearing and the journal entry. Appellant's conviction is affirmed. Remanded for clarifica- tion of the sentencing. - 15 - 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. SPELLACY, C.J., AND KARPINSKI, J., CONCUR. ANN DYKE JUDGE 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, .