COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69535 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ANTOINE K. LOGAN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-319943. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John Gallagher, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Valerie R. Arbie, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -3- DAVID T. MATIA, P.J.: Antoine Logan, defendant-appellant, appeals from his conviction of rape. Defendant-appellant's appeal raises four assignments of error concerning the manifest weight of the evidence and the admissibility of evidence at trial. This court, finding no error, affirms defendant-appellant's conviction. I. STATEMENT OF FACTS On February 23, 1995, the Cuyahoga County Grand Jury returned a single count indictment charging Antoine Logan, defendant- appellant, with rape in violation of R.C. 2907.02. A jury trial began on July 19, 1995. The state presented the testimony of Chineawa Woods, the victim, who testified to the following facts. Chineawa Woods lived with her brother and stepsister, Tenesha Hall, who is the natural daughter of defendant-appellant. The children lived in the home of Mr. and Mrs. Hall. On the night of December 7, 1994, defendant-appellant took his daughter Tenesha, the victim's brother, and the victim to Pizza Hut for dinner as both Mr. and Mrs. Hall were working. When the group returned to the Hall residence, the victim went upstairs to make a telephone call to her friend Tabitha Wright. While the others were in the basement watching television, defendant-appellant approached the victim and attempted to kiss her. The victim testified that her brother and stepsister came upstairs. The victim eventually went downstairs and was again on the phone with her friend, Tabitha Wright. Defendant-appellant followed the victim downstairs and again attempted to kiss the -4- victim. Although the victim was attempting to push him away, defendant-appellant began fondling the victim and pulled down her pants. Defendant-appellant unzipped his pants and "moved his penis close to [the victim's] vagina." The victim testified that defendant-appellant penetrated her. The state also presented the testimony of Tabitha Wright who testified that she talked with the victim during this period and that the she believed it was unusual that the victim kept asking her to immediately call back. After defendant-appellant left the house, Tabitha Wright testified that the victim called her back up crying and told her that defendant-appellant attempted to fondle her. The state presented Tenesha Hall who testified she overheard the victim crying and explaining to her friend over the phone that defendant-appellant had held her mouth and was trying to kiss her and that he pulled down her jogging pants and tried to stick his penis in her. When the victim's stepmother, Vera Hall, came home from work, the three of them sat down and talked about what had happened. It was at this time Vera Hall told Tenesha Hall to page defendant-appellant. Mrs. Hall testified that when she came home from work that night, the victim appeared upset and nervous. When the girls told her what happened, she had Tenesha Hall page defendant-appellant. When Mrs. Hall asked why he had done this, he told her the girls were lying and hung up the phone. Vera Hall then called police and her husband. After defendant-appellant was arrested, Mrs. Hall -5- testified that he called her from jail and stated "[h]ow could you believe I raped her, she consented to it." Mrs. Hall further testified that when she asked defendant-appellant if there had been full penetration, he stated that she took her pants off and that they did in fact have sex. Dr. Richard Yetsko, a Euclid Meridia Hospital emergency room physician, testified that in his experience he had seen rape victims reactions "run the whole scope of emotions." This, the state argued, would explain why the doctor had documented that the victim was calm during the examination. Moreover, the doctor testified that after giving the victim a general exam, there was no evidence of external injuries and no evidence of trauma to the opening of her vagina or fluids. The doctor also testified that the victim's hymen was still intact. These findings, the doctor testified, were consistent with what she had told him, i.e., that defendant-appellant's penis was against the opening of her vagina. However, on cross-examination, the doctor testified his findings were not consistent with full penetration since there would have been tears or trauma to the victim's vagina. Detective Joseph Bensi testified that in his seventeen (17) years on the force, he has interviewed approximately two hundred (200) rape victims. He testified that many times he experiences reluctance on the part of the victim when being questioned about what has taken place. Detective Bensi testified that the victim first told him there was no penetration when they arrived at the -6- scene. In an interview the next day, the victim told the detective there had been slight penetration. Then, in an interview taken months later, the victim told the detective there was penetration. The detective also obtained cellular phone records made to the home of the victim which corroborate her version of what happened on the night of December 7, 1994. Following the detective's testimony, both the state and the defense rested. On July 26, 1995, the jury returned a guilty verdict. Defendant-appellant was ordered to serve a term of incarceration of seven to twenty five years at the Lorain Correctional Institution. A timely notice of appeal was filed on September 6, 1995. II. FIRST ASSIGNMENT OF ERROR Antoine Logan, defendant-appellant, states as his first assignment of error: I. THE VERDICT FINDING ANTOINE LOGAN GUILTY OF RAPE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. A. ISSUE RAISED: WHETHER THE GUILTY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE Defendant-appellant argues the guilty verdict was against the manifest weight of the evidence. Specifically, defendant- appellant argues that the victim cannot be considered credible when the following facts are considered: 1) that the victim claims she was initially approached by defendant-appellant -7- upstairs while she was on the phone with her friend, 2) that the victim claims defendant-appellant stopped when her brother and stepsister came upstairs, 3) that the victim went back downstairs alone to again call her friend, 4) that defendant-appellant again approached her and raped her while she was on the phone with her friend, 4) that at no time did she tell her friend she was being raped while it was supposedly happening, 5) that the victim first stated there was no penetration, then said there was slight penetration, then said there was full penetration, and 6) that there is no corroborating medical evidence that there had been any full penetration at all. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, a court of appeals "has the authority and the duty to weigh the evidence and to determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial." State, ex rel. Squire v. City of Cleveland (1948), 150 Ohio St.3d 303, 345. The standard employed when reviewing a claim based upon the manifest weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. The Unites States Supreme Court recognized these -8- distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where the Court held that unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. Upon application of the standards established in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Moreover, it is important to note the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence, we must accord due deference to those determinations made by the trier of fact. C. THE JURY'S VERDICT IS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant was convicted of rape which is defined by R.C. 2907.02(B): -9- No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. "Sexual conduct" is defined by R.C. 2907.01(A) as follows: "Sexual conduct" means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. In the case sub judice, the victim testified that defendant- appellant followed her into the basement and began fondling her and eventually, pulled her pants down and unzipped his pants and "moved his penis close to [the victim's] vagina." After a while, the victim testified defendant-appellant penetrated her. While the victim at first said there was no penetration, then slight penetration, and finally, full penetration, the discrepancies can be attributed to the victim's age and the stress accompanying the offense. Moreover, the fact that the medical examination produced no signs of trauma or tearing to the victim's vagina and that the victim's hymen was intact does not preclude a finding by a jury, upon other competent evidence, that a rape had been committed. See State v. Carpenter (1989), 60 Ohio App.3d 104. The state also presented the testimony of the victim's stepsister who testified that the victim was upset and crying immediately after defendant-appellant left the house. Moreover, the victim's friend testified that the victim told her -10- immediately after the offense that defendant-appellant was kissing her and trying to feel up her shirt and down her pants. Finally, the state presented the testimony of Vera Hall who testified that defendant-appellant called her from jail and stated "[h]ow could you believe I raped her, she consented to it." Mrs. Hall further testified that when she asked defendant- appellant if there had been full penetration, he stated that she took her pants off and that they did in fact have sex. Although we acknowledge the unusual circumstances surrounding this case, we believe there is sufficient credible evidence supporting the jury's determination that defendant-appellant was guilty of rape beyond a reasonable doubt. For this reason, defendant-appellant's conviction is not against the manifest weight of the evidence. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Antoine Logan's, defendant-appellant's, second assignment of error states: II. THE TRIAL COURT COMMITTED REVERSIBLE AND PREJUDICIAL ERROR WHEN IT PERMITTED A WITNESS TO REPEATEDLY STATE THAT A TELEPHONE CALL MADE BY THE APPELLANT DURING THE PENDENCY OF THE CASE WAS MADE FROM JAIL. -11- A. ISSUE RAISED: WHETHER THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING VERA HALL TO TESTIFY THAT DEFENDANT- APPELLANT'S PHONE CALL WAS MADE FROM JAIL. Defendant-appellant argues the trial court committed prejudicial error in allowing Vera Hall to testify that defendant-appellant's phone call was made from jail. Specifically, defendant-appellant argues that informing the jury that a defendant has remained in jail during the pendency of a case is prejudicial. Moreover, defendant-appellant argues not only is the location of where the phone call was made irrelevant, but any probative value of the statement was substantially outweighed by the statements' prejudicial nature. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: ADMISSIBILITY OF EVIDENCE Evid.R. 401 reads as follows: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. However, even though evidence is relevant, it must be excluded if the conditions set forth in Evid.R. 403 apply: (A) Exclusionary mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the jury. The admission or exclusion of relevant evidence rests within the sound discretion of the trial court and will not be disturbed -12- unless the decision involves an abuse of that discretion. State v. Sage (1987), 31 Ohio St.3d 173; State v. Harcourt (1988), 46 Ohio App.3d 52. An abuse of discretion connotes more than an error of law or judgment. There must be a finding that the trial court's attitude was arbitrary, unreasonable, or unconscionable. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19. C. THE TRIAL COURT DID NOT COMMIT PREJUDICIAL ERROR IN PERMITTING THE TESTIMONY THAT DEFENDANT-APPELLANT WAS MAKING HIS PHONE CALL FROM JAIL. Initially we note the testimony of Vera Hall that defendant- appellant called and told her the victim consented to having sex with her was not at issue. It is merely the testimony that defendant-appellant was making the phone call from jail which is the object of defendant-appellant's claim. We hold that the relevancy of Vera Hall's testimony that defendant-appellant made his phone call from jail is minimal at best. However, when considering the evidence presented, we fail to recognize, nor does defendant-appellant establish, any prejudicial effect by this statement. Accordingly, we cannot hold that the trial court abused its discretion in permitting Vera Hall to testify that defendant-appellant's phone call was made from jail. Defendant-appellant's second assignment of error is not well taken. IV. THIRD AND FOURTH ASSIGNMENTS OF ERROR -13- As Antoine Logan's, defendant-appellant's, third and fourth assignments of error contain similar issues of law and fact, we will consider them concurrently: III. IT IS ERROR FOR A TRIAL COURT TO PERMIT A POLICE OFFICER WITNESS TO PROVIDE GENERAL CHARACTERIZATIONS OF RAPE VICTIMS WHEN HE HAS NOT BEEN QUALIFIED AS AN EXPERT WITNESS ON THAT SUBJECT. IV. THE TRIAL COURT IMPROPERLY PERMITTED TWO WITNESSES TO OFFER THEIR OPINIONS AS TO THE TRUTHFULNESS OF THE ALLEGED VICTIM'S ALLEGATIONS. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED DETECTIVE BENSI TO TESTIFY AS TO THE GENERAL CHARACTERISTICS OF RAPE VICTIMS AND WHEN THE TRIAL COURT PERMITTED TENESHA AND VERA HALL TO TESTIFY REGARDING THEIR BELIEF IN THE VICTIM'S TESTIMONY. Defendant-appellant argues the trial court abused its discretion in permitting Detective Bensi to testify as to the general characteristics of rape victims regarding their cooperativeness in investigations. Specifically, defendant- appellant argues: 1) Detective Bensi's testimony was the opinion of a lay witness dealing with a subject which should be limited to expert witnesses and 2) even if Detective Bensi was qualified as an expert, the specific testimony provided was improper as its sole purpose was to bolster the victim's testimony. Further, defendant-appellant argues in his fourth assignment of error that the trial court abused its discretion in permitting the testimony of Tenesha and Vera Hall regarding their belief that the victim was telling the truth in her testimony. -14- Defendant-appellant's third and fourth assignments of error are not well taken. -15- B. STANDARD OF REVIEW: ADMISSIBILITY OF EVIDENCE As previously stated, the admission or exclusion of relevant evidence rests within the sound discretion of the trial court and will not be disturbed absent a finding that the court's attitude was arbitrary, unreasonable, or unconscionable. State v. Sage (1987), 31 Ohio St.3d 173; Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19. Evid.R. 701 reads as follows: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN PERMITTING THE TESTIMONY OF DETECTIVE BENSI AND IT DID NOT PREJUDICE A SUBSTANTIAL RIGHT OF DEFENDANT-APPELLANT IN PERMITTING THE TESTIMONY OF TENESHA AND VERA HALL. The pertinent testimony of Detective Bensi is as follows: Q. Sir, prior to December 7, 1994, had you had other occasions to investigate reports of rape cases? A. Yes, I have. Q. Approximately how many times? A. Would be hard to estimate. I would imagine probably either I investigated myself or assisted in the investigation well over 200 cases. Q. Okay. And investigating those number of cases, over 200, has -- or you have noted tendencies or patterns that you have recognized as far as how cooperative or uncooperative a victim can be when you attempt to interview him or her? -16- MR. KNABE: Objection, Your Honor. THE COURT: Overruled. He can answer that. A. Yes I have. Q. Can you elaborate on that, please? A. Yes. In general, when you are dealing with victims who are adolescence (sic) or children, and also certain adults, there is a great resistance or reluctance to disclose what has taken place or disclose fully what has taken place. They are often times willing to provide to you what they feel they might be able to give to you and then be left alone, so they can go home or do whatever. It often times takes more than one occasion, more than one interview, in order to obtain the full amount of information that is required when a case -- and sometimes you do not - - or you are not able at this particular level to obtain that information, and it requires additional therapy in order to have that disclosed. Q. Okay. And what causes of factors do you attribute to that tendency? MR. KNABE: Your honor, the same continuing objection. THE COURT: Okay. Objection noted. You can answer that. A. I think it varies from the individual. In this particular case I would think it was probably a combination of factors. I think it was probably fear, embarrassment, reluctance to disclose what obviously -- or what appeared to be a very intimate act, very difficult act to describe, and also the fact that this was a very unusual situation, in that her relationship with the mother of her -- or I'm sorry, her step-sister and also her step-mother were related in one degree or another to the suspect in this case. -17- The testimony at issue is personal observations of facts in dealing with approximately two hundred rape victims and his personal observation of the victim herself as opposed to the "expert" opinion testimony envisioned by Evid.R. 702. See State v. Nagel (1986), 30 Ohio App.3d 80; State v. Robinson (November 23, 1994), Cuyahoga App. No. 66510, unreported. The trial court did not abuse its discretion in permitting Detective Bensi to testify as to what he perceived to be the general characteristics of approximately two hundred rape victims he had interviewed. With regard to the opinion testimony of Tenesha and Vera Hall regarding whether they believed the victim was telling the truth, we agree with defendant-appellant that the trial court improperly admitted this opinion testimony. However, such error was harmless in view of the evidence presented at trial of defendant- appellant's guilt. See Crim.R. 52(A); State v. Moreland (1990), 50 Ohio St.3d 58. For these reasons, defendant-appellant's third and fourth assignments of error are not well taken. Judgment affirmed. -18- 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. DIANE KARPINSKI, J., CONCURS; TIMOTHY E. McMONAGLE, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .