COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70122 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT E. LEE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 16, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-323821 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 Bldg. DEBORAH R. NAIMAN, ESQ. Suite #1210 Assistant County Prosecutor Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was indicted on charges of kidnapping and rape of a child under the age of thirteen, R.C. 2905.01 and R.C. 2907.02 respectively. A jury found him guilty as charged on both counts. The kidnapping conviction merged with the rape conviction and the trial court sentenced appellant to life imprisonment. Appellant filed a timely appeal from his convictions and sentence, asserting four assignments of error. I DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the only evidence to support the convictions is the unreliable, confusing and contradicted testimony of Reba, the child victim. Appellant's argument is not supported by the record below. According to the testimony and evidence presented at trial appellant had been a close friend of Reba Smith's family for seventeen years prior to the incident on May 7, 1995. Appellant was the best man in the wedding of Reba's parents, Regina and Sydney Smith, and had lived with the family for a lengthy period of time. On the morning of May 7th, appellant came to the home while the family was still asleep. He was returning a car he had borrowed from them the prior evening. A neighbor called the Smiths when appellant could not awaken them by knocking. Regina answered the phone and Sydney went down to let appellant in the house. Reba - 3 - and her younger sister had fallen asleep on the sofa the night before while watching television. Appellant sat down on the reclining loveseat near the girls to sleep. He had been out all night at a birthday party. Sydney returned to his upstairs bedroom to sleep. Eleven year-old Reba testified that the last thing she remembered was falling asleep on the sofa on the first floor. When she awoke she was on the sofa in the basement. Her pants and panties were pulled down to the lower part of her legs. Reba's knees were apart and appellant was on top of her with his pants similarly lowered. Reba testified that when she awoke appellant was putting his penis in her vagina. She testified that it hurt. She pushed him off of her and he hit his head on a table. Reba attempted to run upstairs but appellant attempted to stop her by grabbing her three times. Reba escaped from appellant and ran to the second floor to her parents' room. Regina testified that Reba came to their bedroom and knocked. Reba was crying. She told them, "Bobby touched me. . . I was down on the couch sleeping. He picked me up and took me in the basement. He pulled my panties down. He pulled his down. He stuck his wee-wee in." (TR. 181) Regina testified that she examined Reba's genitals at that point. She saw that Reba was "red, opened." (TR. 181) Regina took her to the hospital. - 4 - The standard set forth in State v. Martin (1983), 20 Ohio App.3d 172 is applied by this Court to determine the issue of manifest weight of the evidence to support a criminal conviction. * * * The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin, supra, at paragraph three of the syllabus. Appellant claims that Reba's testimony was the only evidence to support his convictions. Appellant argues that her testimony was contradictory and unreliable. The record reveals a remarkably consistent set of facts surrounding the incidents which occurred on the morning of May 7th. Reba's testimony was consistent throughout her direct and cross-examination on the stand. This testimony was also consistent with what she told her parents that morning and later the social worker who took Reba's statement. Reba's version of the events was supported by the physical evidence presented on the stand by Dr. Tichavakunda, the emergency room doctor. Reba's mother also testified to the reddened, open appearance of Reba's genitals prior to taking her to the hospital. After reviewing the entire record, this Court finds that the evidence supported the jury's finding that appellant, by any means in the case of a victim under the age of thirteen, removed Reba from the place where she was found or restrained her of her liberty - 5 - for the purpose of engaging in sexual activity, R.C. 2905.01. The evidence also supported a finding that appellant engaged in sexual conduct with Reba, a girl less than thirteen years of age, R.C. 2907.02. The jury did not clearly lose its way and create a manifest miscarriage of justice when it found that the testimony and evidence presented support convictions on both the kidnapping and rape of then ten-year old Reba. Appellant's first assignment of error is overruled. II DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Appellant asserts four specific instances of ineffective assistance under this assignment of error. Appellant claims that his defense attorney failed to call two witnesses who could have impacted the credibility of the victim's father's testimony. Appellant further argues ineffective assistance because trial counsel called no character witnesses: his attorney failed to present a theory to explain the presence of blood on the victim's vaginal swab; and, his attorney failed to prove the absence of injury to appellant's head to contradict Reba's testimony that he bumped his head when she pushed him off of her. None of these alleged failures constitute a dereliction of the defense counsel's duty of representation to appellant's prejudice. To prove ineffective assistance of counsel, appellant bears the burden to show that the representation received fell below an - 6 - objective standard of reasonableness. State v. Bradley (1989), 42 Ohio St.3d 136. The Ohio Supreme Court, following Strickland v. Washington (1984), 466 U.S. 668, further held that: * * * "[J]udicial scrutiny of counsel's performance must be highly deferential." * * * Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. * * * To warrant reversal, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Bradley, supra, at 142, quoting Strickland v. Washington, supra, at 694. On the record during appellant's sentencing, his trial counsel addressed appellant's complaint about the decision against presenting a witness who was prepared to testify that Sydney Smith had molested her twenty years ago, when he was seventeen years of age. Defense counsel recognized that such testimony would not have been admissible, and therefore decided not to present this witness. We agree that such testimony would have been irrelevant to the issue of whether appellant raped and kidnapped Reba. Appellant's theory was that Reba had dreamed the entire episode, not that it was actually Reba's father who committed the rape. Counsel was acting well within the objective standard of reasonableness applied to determine the effectiveness of his assistance in appellant's defense when he chose not to present this witness. - 7 - As to appellant's assertion that ineffective assistance of counsel was rendered when no character witnesses were presented, we find that this decision, too, was reasonable. This Court has previously held that a counsel's failure to call a character witness is a matter of trial strategy which does not demonstrate ineffective assistance of counsel. State v. Flors (1987), 38 Ohio App.3d 133, motion for leave to appeal overruled (1987), Supreme Court of Ohio Case No. 87-988. Appellant's third claim of ineffective assistance of counsel relates to defense counsel's failure to develop a theory relative to an evidentiary finding of Tina Wolff, from the Scientific Investigation Unit. Ms. Wolff testified that a trace amount of blood was found on a vaginal swab, taken when Reba was admitted to the emergency room. Ms. Wolff further testified that the blood did not suggest that a sexual relationship had occurred. (TR. 303) Any theory as to the presence of the blood was unnecessary given that the evidence was not a factor in the State's case against appellant. We can not find ineffectiveness in defense counsel's handling of appellant's defense in relation to the evidence of blood. Finally, appellant claims that defense counsel was ineffective in rendering assistance in his defense because of the failure to present evidence of a lack of injury to appellant's head. Reba had testified that appellant bumped his head on the table when she pushed him off of her in the basement. Reba's testimony did not - 8 - require a responsive presentation of proof that appellant did not have a bump, scratch or bruise. Such evidence would not necessarily render Reba's version of the facts untrue. The jury must have been aware that people can receive bumps to the head without sustaining lasting injury. Defense counsel's failure to present such evidence was neither below the objective standard of reasonableness nor prejudicial to appellant's defense. Appellant has not met his burden to prove ineffective assistance of counsel with any of the above cited claims. Appellant's second assignment of error is overruled. III THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING THE EXAMINING DOCTOR TO TESTIFY THAT IT WAS HIS OPINION THAT EVEN WHERE THE DATA IS NEGATIVE OF RAPE THAT CHILDREN WILL NOT LIE ABOUT SEXUAL ABUSE. Appellant argues that plain error occurred when the court admitted testimony from the doctor which tended to validate the credibility of Reba's testimony. Appellant's argument is not well taken. On cross-examination, Dr. Tichavakunda was asked about the lack of physical evidence found to support the rape offense. Tichavakunda attempted to express his professional opinion that penetration can occur without necessarily leaving physical evidence in the form of blood, semen or sperm on the victim's body or the clothing of either victim or offender. Tichavakunda explained that he had been involved in situations in the past where he knew that a - 9 - rape had occurred but no physical evidence remained to support the fact. Specifically, Tichavakunda stated: With children I have seen where rape has occurred that I am certain, and the data has been negative, because a ten year-old has no reason to make up a story like this and lie. (TR. 265) This last part of the statement was an additional comment which did not directly answer the question which was put to him, dealing with the negative results of tests run for evidence of bodily fluids. No objection was raised to this testimony, therefore the comment must rise to the level of plain error to merit a new trial because of its admission into evidence. We do not find plain error in this instance. The Ohio Supreme Court recently reiterated the standard we must apply under a plain error analysis: Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus. Plain error does not exist unless, but for the error, the outcome at trial would have been different. State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899. State v. Watson (1991), 61 Ohio St.3d 1, 6. The Ohio Supreme Court has held that, "An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant." State v. Boston (1989), 46 Ohio St.3d 108, at the syllabus. See also, State v. Davis (1989), 64 Ohio App.3d 334. Although Dr. Tichavakunda's statement appears to be a comment upon the truthfulness of Reba's story, we do not find - 10 - that it constituted prejudicial error on the part of the trial court in allowing the statement to be admitted. We can not find that the outcome of the trial would have been different without the admission of the statement. Even without the tainted comment the evidence to support appellant's guilty verdicts was overwhelming. Appellant's third assignment of error is overruled. IV THE COURT COMMITTED PLAIN ERROR BY NOT CHARGING THE JURY ON THE LESSER INCLUDED OFFENSE OF GROSS SEXUAL IMPOSITION. Appellant asserts that the offense of gross sexual imposition is a lesser included offense of rape. Appellant argues that the trial court should have included a jury instruction on the offense of gross sexual imposition because the evidence supports a conviction on the lesser included offense. Appellant's argument is not well taken. The Ohio Supreme Court has held that gross sexual imposition is a lesser included offense of rape. State v. Johnson (1988), 36 Ohio St.3d 224. However, the Supreme Court further found that: A criminal defendant is not entitled to a jury instruction on gross sexual imposition as a lesser included offense of rape where the defendant has denied participation in the alleged offense, and the jury, considering such defense, could not reasonably disbelieve the victim's testimony as to "sexual conduct," R.C. 2907.01(A), and, at the same time, consistently and reasonably believe her testimony on the contrary theory of mere, "sexual contact," R.C. 2907.01(B). (State v. Kidder [1987], 32 Ohio St. 3d 279, 513 N.E. 2d 311, and State v. Wilkins [1980], 64 Ohio St. 2d 382, 18 O.O. 3d 528, 415 N.E. 2d 303, approved and followed.) - 11 - The defendant's theory in State v. Johnson, supra, like the one in the present case was a complete defense. The defendant in Johnson attempted to prove that the victims' stories were wholly fabricated. He never tried to "challenge their ability to differentiate between mere touching and actual penetration of a body cavity." State v. Johnson, supra, at 227. Appellant asserted that Reba had actually dreamed the entire incident, never admitting to even touching her. Under these similar factual circumstances and identical defenses presented at trial, the Supreme Court held: In view of such defense, the jury could not consistently or reasonably disbelieve the girls' testimony as to penetration and, at the same time, consistently and reasonably believe their testimony on the contrary theory of mere touchings specifically related to any of the charged events. Appellee was thus not entitled to an instruction on gross sexual imposition as a lesser included offense of rape. State v. Johnson, supra, at 227-28. Following the law as set forth above, we find that appellant was not entitled to an instruction on the lesser included offense of gross sexual imposition. Appellant's fourth assignment of error is overruled. Appellant's convictions and life sentence for the rape and kidnapping of Reba Smith are affirmed. - 12 - 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. PORTER, P.J., AND NAHRA, J., CONCUR. ANN DYKE 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 .