COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70076 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION MICHAEL HAMPU : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-326909. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor David Zimmerman Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Charles M. Morgan, Jr., Esq. 11510 Buckeye Road Cleveland, Ohio 44104 SWEENEY, JAMES D., P.J.: Defendant-appellant Michael Hampu appeals from his jury conviction for gross sexual imposition in violation of R.C. 2907.05. The appellant was sentenced to a term of imprisonment of eighteen months. On July 1, 1995, the victim, Jeremy Forestall, was sexually assaulted by the appellant. The Forestall family met the appellant through the Morgana Baseball League, a private baseball league in which the two Forestall children participated. The appellant coached the ten to twelve-year-old division in 1992 and 1993. The victim, Jeremy Forestall, age fourteen at the time of trial, was a member of the team coached by the appellant. Ken Forestall, the victim's father, became the assistant coach. Mr. Forestall and the appellant became friends through their participation in the baseball league. During the four-year friendship, the appellant was invited to parties and family gatherings fifteen to twenty times prior to the incident which occurred on July 1, 1995. On this day, the appellant was invited to the birthday celebration for Justin Forestall, the victim's younger brother. The appellant arrived at the party after most of the guests had already left. Mr. and Mrs. Forestall each testified that the appellant appeared to have been drinking. After his arrival, the appellant ate and sat down to watch the Indians game with the family on the small television set on the patio. When the - 3 - appellant chose his seat, he sat down, inappropriately, very close to Jeremy. After the appellant began feeling his leg Jeremy became so uncomfortable, and as he described it, "worried in my stomach" (T. 139), that he went into the house. The appellant followed Jeremy commenting that now they were alone. The appellant entered the restroom. Jeremy pretended to return to the patio, but instead went upstairs to his bedroom to play Nintendo. After a time, Mr. and Mrs. Forestall and the appellant entered the house. At approximately 11:00 p.m. the appellant prepared to leave. He went upstairs to say goodbye to Jeremy and returned to the living room five or ten minutes later. When he returned he was disoriented and did not know which way to leave the house. As he began to move toward the back door, the Forestalls asked why he did not just leave by the front door since that was where his car was parked. The appellant exited through the front door, and shortly thereafter the Forestalls went to bed. At approximately 3:30 a.m. Jeremy, sobbing, woke his parents. After Jeremy and his mother left the bedroom, Jeremy described the following events which occurred when the appellant entered his bedroom to bid him goodbye. As Jeremy sat on his bedroom floor playing Nintendo, he faced the television and his back was towards the open door. He was dressed in a T-shirt and gym shorts, and he played Nintendo with the volume turned up loud. He felt "something come over the side of [him] and down [his] pants." (T. 110.) The "something" was the appellant's hand. The hand went down the front - 4 - of the gym shorts, underneath the underwear. The appellant grabbed the victims penis and scrotum for approximately thirty seconds. Jeremy began to punch the appellant on the arm. The appellant looked dazed, exited the room, and proceeded down the stairs. Immediately after this occurrence the victim was too scared and embarrassed to discuss these events. When he found he could not sleep that night he finally woke his parents. The appellant sets forth four assignments of error. The first assignment of error: I DEFENDANT-APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL WAS MATERIALLY PREJUDICED BY THE INEFFECTIVE ASSISTANCE OF HIS COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS. The appellant asserts that he was rendered ineffective assistance of counsel by counsel's failure to discredit or impeach the conflicting and unreliable testimony of the victim, failing to call witnesses, entering into personal arguments with the prosecutor during trial, and by failing to move the court to examine the competency of the victim. To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. The burden of proving ineffectiveness is on the - 5 - defendant. State v. Smith (1981), 3 Ohio App.3d 115. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. The appellant herein was not rendered ineffective assistance of counsel. Defense strategy will not be second-guessed by reviewing courts when determining claims of ineffective assistance of counsel. State v. Berry (Nov. 2, 1995), Cuyahoga App. No. 68762, unreported, citing to Strickland, supra, and to State v. Smith (1991), 75 Ohio App.3d 73. In Berry, supra, this court refused to second-guess the trial strategy of appellant's counsel regarding the cross-examination of the victim. In the case sub judice, the case was tried to a jury and the victim was a minor child. The decision as to which questions to ask and when to ask them of a child, especially relating to a sex offense, is clearly within the realm of trial strategy. Without a showing of clear prejudice, this court will not second-guess counsel. Such prejudice has not been demonstrated by the appellant. In addition, the decision whether or not to call a witness is a tactical trial strategy and generally will not sustain a claim - 6 - for ineffective assistance of counsel. See State v. Williams (1991), 74 Ohio App.3d 686, 695; State v. Hunt (1984), 20 Ohio App.3d 310, 312. The appellant's contention that trial counsel should have called witnesses to testify regarding a prior inappropriate encounter between the appellant and the victim is not well taken. Such witnesses might easily have bolstered the victim's testimony, a result good defense counsel generally seeks to avoid. The appellant points to a portion of the record in which the prosecutor and defense counsel became embroiled in a personal argument. While this may have been unprofessional, the appellant has demonstrated no prejudice arising from this one incident. Finally, the appellant contends that his trial counsel erred in failing to move the court to examine the competency of the victim. Absent an exception as listed in Evid.R. 601, every person is presumed competent to testify. The appellant has failed to demonstrate that the victim was of unsound mind or under ten years of age. There is no indication in the record that the victim appeared incapable of receiving just impressions of the facts and transactions or that he was incapable of relating them truly. Without a showing that the victim arguably fell within the parameters set forth in the rules of evidence, the appellant has shown no basis for his counsel to move the court for a competency examination of the victim. A defendant is not rendered ineffective - 7 - assistance of counsel by counsel's failure to perform a vain act. State v. Box (1993), 89 Ohio App.3d 614. The appellant failed to meet his burden of showing that his trial counsel erred, let alone that any errors committed were so egregious as to effectively deny him counsel. The appellant's first assignment of error is overruled. The appellant's second and third assignments of error will be considered together: II THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THE OFFENSE OF GROSS SEXUAL IMPOSITION. III THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. The appellant asserts that the verdict was based both on insufficient evidence and was against the manifest weight of the evidence. The appellant argues that the State failed to prove sufficient evidence that the crime was committed with purposeful force or a threat of force. The appellant challenges the manifest weight of the evidence by alleging that the victim's testimony was uncertain and unreliable. The Supreme Court set forth the test for appellate review of both sufficiency of the evidence and the manifest weight of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, 273. A - 8 - verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. The weight to be given evidence and the credibility of witnesses are primarily for the trial of fact to determine. Jenks, supra. The appellant's conviction is supported by sufficient evidence. The elements of gross sexual imposition are set forth in R.C. 2907.05: (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: (1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force. * * * (C) A victim need not prove physical resistance to the offender in prosecutions under this section. * * * The appellant is essentially arguing that if you covertly attack an innocent child involved in a game in the safety of his bedroom that the State is unable to show the element of force necessary to convict. This proposition is untenable. The - 9 - testimony of the victim indicated that he was playing Nintendo with the volume up and his back toward an open door. The appellant entered his bedroom without calling attention to his presence and forced his hand down the victim's pants. Once the victim realized he was being assaulted, he quickly attempted to ward off his attacker. The force used to place his hands inside the victim's pants and underwear was sufficient to establish the element of force or threat of force under the statute. The appellant similarly attacks the credibility of the victim in order to suggest that the conviction is against the manifest weight of the evidence. The credibility of evidence is determined by the trier of fact. Jenks, supra. Here, the jury obviously found Jeremy Forestall to be a credible witness. This determination will not be disturbed on appeal. The appellant's second and third assignments of error are not well taken. The fourth assignment of error: IV THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN IMPOSING THE MAXIMUM SENTENCE WITHOUT CONSIDERATION OF DEFENDANT'S HISTORY OF NO PRIOR CRIMINAL ACTIVITY AND CHARACTER REFERENCES SUBMITTED ON HIS BEHALF, THEREBY VIOLATING O.R.C. 2929.13. The appellant argues that the court disregarded the requirements of R.C. 2929.13 and imposed the maximum sentence allowed by law. The appellant believes that the court failed to consider that this was his first offense, that by all accounts he - 10 - was a good teacher and coach, and that the court ignored the many letters submitted on the appellant's behalf which indicated his good character. Sentencing is within the discretion of the trial court and shall not be disturbed absent an abuse of discretion. State v. Lazada (Oct. 26, 1995), Cuyahoga App. No. 67147, unreported, citing to Toledo v. Reasonover (1965), 5 Ohio St.2d 22; State v. White (Jan. 24, 1995), Cuyahoga App. No. 63879, unreported. The term abuse of discretion connotes more than an error of law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151; State v. Montgomery (1991), 61 Ohio St.3d 410, 413. At the sentencing the trial court noted the receipt of letters of commendation and stated that the appellant's abilities as a teacher and coach were not in question. The court proceeded to impose the maximum sentence despite these considerations. The appellant has not demonstrated that the court failed to consider the factors set forth in R.C. 2929.13. The imposition of the maximum sentence, while perhaps irregular for a first offense, is not an abuse of discretion given the circumstances of this crime. The 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. PATRICIA A. BLACKMON, J., and JAMES M. PORTER, J., CONCUR. JAMES D. SWEENEY PRESIDING 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 of decision by the .