COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69709 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION JOE PETERS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1996 CHARACTER OF PROCEEDING: Criminal proceeding from Common Pleas Court Case No. CR-325535 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DONALD BUTLER, ESQ. Cuyahoga County Prosecutor 75 Public Square Suite 1111 DEBORAH NAIMAN, ESQ. Cleveland, Ohio 44113 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Joe Peters appeals from his jury convictions for felonious sexual penetration and gross sexual imposition of his minor daughter. Defendant was indicted on two counts of rape, one count of felonious sexual penetration, and one count of gross sexual imposition of his daughter Ariel Taylor. Defendant and the child's mother, Stacey Taylor, were never married and broke off their relationship before they had Ariel on December 17, 1989. Ariel frequently visited defendant and his subsequent girlfriend, Alicia, who became his wife in October 1992. The offenses allegedly occurred on two separate occasions at locations where defendant and Alicia Peters were living during visits in the summer of 1994 and early in 1995. The prosecution presented testimony from Stacey and Ariel Taylor, three doctors, and a social worker. Three doctors who physically examined Ariel in the summer of 1994 discovered abnormalities around her vagina, but did not conclude that she had been sexually abused. The three doctors did not examine her anus. Another doctor subsequently examined Ariel following the 1995 incident. The fourth doctor observed irregularities in Ariel's hymen and laxity in her anus and concluded that she had been sexually abused. The social worker testified that, after the 1995 incident, Ariel did not describe the sexual assault during her first interview, but did during the second. - 3 - Defendant presented testimony from his wife, Alicia Peters, his sister, Serena Tucker, and two children who live with Tucker. The four described life and living conditions at defendant's residences. According to the witnesses, defendant was almost never alone with Ariel, defendant did not have an opportunity to abuse her, and she never reported any such abuse to them. The jury acquitted defendant of the two counts of rape, but convicted him of felonious sexual penetration and gross sexual imposition. The trial court sentenced defendant to life imprisonment on the felonious sexual penetration to be served concurrently with eighteen months for gross sexual imposition. Defendant timely appeals raising four assignments of error. Defendant's first assignment of error follows: DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment lacks merit. Defendant argues that his convictions for felonious sexual penetration and gross sexual imposition are against the manifest weight of the evidence because the medical evidence was conflicting and the child victim's testimony was unreliable. Ariel testified that defendant committed various sexual acts against her on two occasions. Three doctors who vaginally examined Ariel found no physical evidence of sexual abuse after the first alleged incident. However, Dr. Richardson, the sole physician who subsequently examined Ariel following the last time she stayed at defendant's residence, concluded there was physical evidence consistent with anal and vaginal sexual abuse. - 4 - The jury, apparently discounting some of the prosecution's evidence, acquitted defendant of two charges, but convicted him of the remaining two charges. We note that the jury had a superior opportunity to observe the demeanor of the witnesses when evaluating their credibility and the weight to be given their testimony. Dr. Richardson's testimony was not contradicted. Further, physical evidence which Dr. Richardson observed corroborated the victim's testimony of sexual assault. The record contains competent credible evidence to support the two convictions, and defendant's wife, sister and nieces were unable to establish a complete lack of opportunity for defendant to have committed them. Under the circumstances, defendant has failed to show the jury lost its way and created a manifest miscarriage of justice when evaluating the conflicting evidence in this case. State v. Mattison (1985), 23 Ohio App.3d 10. Accordingly, defendant's first assignment of error is overruled. Defendant's second and third assignments of error raise related issues as follows: PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. THE TRIAL COURT ERRED WHEN IT PERMITTED TESTIMONY OF OTHER CRIMES, ACTS, OR WRONGS, ATTRIBUTED TO DEFENDANT- APPELLANT TO BE INTRODUCED OVER OBJECTION AND BY ITS FAILURE TO GIVE A LIMITING INSTRUCTION BOTH DURING THE COURSE OF TRIAL AND IN THE GENERAL CHARGE TO THE JURY, THE PURPOSES FOR WHICH EVIDENCE PRESENTED BY THE PROSECUTION COULD BE USED. These assignments lack merit. - 5 - Defendant argues the prosecutor committed misconduct and the trial court erred by admitting evidence concerning a physical altercation between defendant and his wife in the presence of Ariel. Defendant argues the evidence, elicited from his wife Alicia during cross-examination, was irrelevant and prejudicial. Because this testimony falls under the "bad acts" exclusion, defendant argues, the jury should have been instructed not to consider the matter as substantive evidence of his guilt. Defendant's wife, Alicia, testified generally during direct examination that defendant had no opportunity to sexually abuse Ariel, because defendant was never alone with her. During cross- examination the prosecutor questioned her concerning a separation from defendant and whether Ariel ever stated defendant abused her. Alicia responded that the child never told her about abuse and volunteered that "there was never nothing out of the ordinary, never." She added that there had never been "a problem" at the house when Ariel was there. The trial court subsequently permitted the prosecution to re-open cross-examination of Alicia following discovery of a 1 domestic violence report she made to the police. Alicia stated in a March 1994 report to the police that when she and defendant argued concerning defendant's involvement with another woman, defendant, under the influence of alcohol, punched her in the mouth. Consequently, she feared for Ariel's safety. This 1 Defendant makes no claim that the trial court improperly permitted the prosecutor to re-open her cross-examination of his wife. - 6 - incident occurred at the time of their separation and prior to the first alleged sexual assault of Ariel. Defendant contends the report of the 1994 domestic dispute was "bad acts" testimony which should have been excluded under Evid.R. 404(B). Evid.R. 404(B) provides as follows: Other crimes, wrongs or acts. Evidence of the other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Defendant's attempt to shoehorn the prosecution's cross- examination of his wife concerning this incident into Evid.R. 404(B) is unpersuasive. Defendant has not explained how this rule applies to exclude the domestic violence evidence in this case. Evid.R. 404(B) excludes evidence of prior bad acts when used as substantive evidence to show the defendant had a propensity to commit the offense for which he is charged. If the case against defendant had involved domestic violence charges against his wife, Evid.R. 404(B) would have excluded evidence of this prior incident to show that defendant was a wife abuser and, therefore, acted in conformity with such character on this occasion. However, defendant was charged in this case with committing sex crimes against his daughter. It is illogical to argue that evidence of domestic violence by defendant against his wife showed defendant had a propensity to commit sexual abuse against his daughter contrary to Evid.R. 404(B). - 7 - Defendant's argument makes no sense because it distorts what occurred at trial. The evidence concerning the 1994 domestic violence incident was introduced on cross-examination to impeach defendant's wife. In other words, the evidence was offered for impeachment purposes and not as substantive evidence or because of its relevance to any substantive issue. We agree with defendant, however, that the prosecution's justification is erroneous. Citing State v. Sims (1981), 3 Ohio App.3d 321, 323-324, the prosecution contends that this incident was proper impeachment of Alicia's testimony concerning her husband defendant's "character" under Evid.R. 405. While this theory may be viable under the right circumstances, the record shows that Alicia did not offer any testimony concerning defendant's "character." As a result, impeachment under this theory is untenable. Nevertheless, impeachment concerning the 1994 domestic violence incident was permissible in this case. The record shows that the cross-examination explored the background of the parties' separation in 1994 and was more in the nature of impeachment by showing a prior inconsistent statement under Evid.R. 613. See State v. Talbert (1986), 33 Ohio App.3d 283. Alicia's testimony to the effect that "nothing out of the ordinary ever happened" and there was never "a problem" at the residence when Ariel was present was inconsistent with her prior statements in her domestic violence complaint to the police. - 8 - Although the cross-examination may have involved matters collateral to the issues in the case, a trial court's determination to permit such questioning concerning witness credibility will not be reversed on appeal absent an abuse of discretion. State v. Riggins (1986), 35 Ohio App.3d 1, 3. Defendant has failed to argue or show that the trial court abused its discretion in this case, because he has limited his argument to the erroneous contention that the trial court had no discretion whatsoever to permit this testimony. Defendant complains for the first time on appeal that the trial court did not instruct the jury that it should consider this evidence for impeachment purposes only, rather than as substantive evidence. This argument should have been raised in the trial court. State v. Grant (1993), 67 Ohio St.3d 465, 472. Instead of requesting a jury instruction, defense counsel sought a mistrial based on the challenged cross-examination, but the trial court properly rejected this claim because the impeachment was proper. Evid.R. 105 expressly requires parties to request limiting instructions when evidence is admissible for one purpose but not another. As a result, the trial court committed no error, let alone plain error, by omitting such an instruction in this case. Even if this claim were not waived, the Ohio Supreme Court has repeatedly emphasized that notice of plain error is to be taken with utmost caution and only in exceptional cases to prevent a manifest miscarriage of justice. State v. Adams - 9 - (1980), 62 Ohio St.2d 151. Reversal is warranted under this standard only when the outcome of the trial clearly would have been different without the alleged error. Defendant has failed to meet this strict standard in this case. The jury acquitted defendant of two charges and convicted him of two charges. It is not clear how the jury could have improperly used the challenged information against him on the felonious sexual penetration and gross sexual imposition charges, but not on the remaining two counts of rape. Defendant received a fair trial and has failed to show that the verdict would have been different without the impeachment or was not based on the evidence and resulted from unfair prejudice. Accordingly, defendant's second and third assignments of error are overruled. Defendant's fourth assignment of error follows: THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINING A MINOR CHILD, THE ALLEGED CHILD VICTIM, COMPETENT TO TESTIFY AND THUS DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. This assignment lacks merit. Defendant argues the trial court improperly found his daughter Ariel to be a competent witness after conducting a superficial voir dire concerning her competency prior to trial. It is well established that a reviewing court will not reverse a trial court's determination that a child is competent to testify under Evid.R. 601, absent evidence that the trial court abused its discretion. State v Frazier (1991), 61 Ohio St.3d 247. This court has previously recognized that witnesses - 10 - four years of age may be competent witnesses. State v. Abercrombie (Aug. 26, 1993), Cuyahoga App. No. 63695, unreported at pp. 7-8; State v. Baker (July 14, 1988), Cuyahoga App. No. 54439, unreported at pp.5-6. The record of Ariel's statements during voir dire and trial in this case do not reveal that she was incompetent or that the trial court abused its discretion by finding her competent. State v. Lewis (1982), 4 Ohio App.3d 275. Contrary to defendant's argument, Ariel repeatedly stated she both knew what telling the truth meant and that she would tell the truth. Her statements, moreover, revealed she had the ability to observe events accurately and communicate about them. The fact that Ariel frequently stated "I don't know" during her voir dire does not warrant a different conclusion. Accordingly, defendant's fourth assignment of error is overruled. Judgment affirmed. - 11 - 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. LEO M. SPELLACY, C.J., CONCURS; DYKE, J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI 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 .