COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70129 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION HERIBERTO RAMOS, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-323641 JUDGMENT: Affirmed in part; Reversed in part and Remanded for Resentencing. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. CUYAHOGA COUNTY PROSECUTOR 75 Public Square, Suite 1016 BY: BLAISE D. THOMAS, ESQ. Cleveland, Ohio 44113-2098 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant Heriberto Ramos appeals from his convictions for rape, burglary, and intimidation. For the reasons set forth below, we affirm in part, reverse in part and remand for resentencing. On May 16, 1995, defendant was indicted pursuant to a nine count indictment for five counts of rape, one count of burglary, and three counts of intimidation. Defendant pleaded not guilty to all charges. Thereafter, defendant executed a written waiver of his right to a jury trial which was duly filed with the clerk of courts pursuant to R.C. 2945.05. The matter then proceeded to trial to the court on November 26, 1995. For its key evidence, the state presented the testimony of Jessica, the victim of the rapes as alleged in the indictment, Betty Jo Adams, Melissa Adams, Marsha Thompson, Lynn Foulkrod, Cleveland Police Officers Melvin Wilson and Charles Russell, and Cleveland Police Detective Marvin Cross. Jessica, who was fourteen-years-old at the time of trial, testified that defendant is her mother's former live-in boyfriend. In January 1995, defendant hurt his back and began to sleep in the living room on a mattress on the floor. Shortly after this time, defendant came into her room in the middle of the night and touched her private parts, then brought her downstairs to the living room and had sexual intercourse with her against her wishes. He told her that he would kill her and her family if she ever told anyone what had happened, and that she could have anything she wanted if - 3 - she did not tell anyone. According to Jessica, defendant had sexual intercourse with her again in February 1995 and a third similar incident occurred again in late March 1995 during which defendant wore a condom. A fourth and final incident occurred in April before Easter. Jessica further testified that following the last episode, she told defendant that she hated him, and she resolved that she could not let it happen anymore. She subsequently told her friend Betty Jo that defendant had raped her. Betty Jo urged her to tell her mother, and also told Jessica's mother that there was something which Jessica wanted to tell her but was afraid to say. In addi- tion, Betty Jo told her own mother who likewise urged Jessica to tell her mother. Jessica's mother eventually elicited from Jessica that defen- dant had raped her. She explained that she had delayed telling her mother due to her mother's love for the defendant. The police were subsequently contacted and Jessica spoke with them for approxi- mately one-half hour. On cross-examination, Jessica stated that she also had a younger brother and sister and that she and her sister shared a bedroom at the time of the alleged offenses. She further stated that there was blood on a blanket after one of the incidents and she laundered the blanket so that her mother would not see it. The court reviewed Jessica's police statement following her testimony and the court determined that there were inconsistencies. - 4 - In particular, the court noted that her written police statement described three events, whereas her testimony detailed four events. (Tr. 115) as well as inconsistencies regarding the location of the attacks and the timing of the attacks. On cross-examination, Jessica stated that she only described three events to the police since the policewoman only asked her about different times and places and "[o]ne of these events happened almost exactly the same as the fourth." (Tr. 126). She also stated that she could not recall telling the officer that the third incident happened on the couch in the living room and not on the mattress as she had stated in her testimony for the court. On redirect, Jessica stated that defendant threatened to kill her "[m]aybe three times." (Tr. 136). Betty Jo Adams testified that she is Jessica's best friend. In February 1995, when the girls were together, Jessica looked very sad. Betty Jo asked her what was wrong and she responded that "Junior had raped her." Jessica then recounted to Betty Jo that she had been sleeping in the living room while her room was being redone and that defendant came downstairs in the middle of the night and raped her almost every night. At a subsequent time, Jessica asked Betty Jo if Betty Jo would sleep at her house, explaining that if Betty Jo were there defendant could not continue the attacks. Betty Jo further stated that Jessica was upset during both discussions. Betty Jo eventually told her own mother about Jessica's charge and her mother in turn confronted Jessica and - 5 - informed her that she must report the allegations. Jessica did not do so and Betty Jo then called 696-KIDS and reported what she had learned from Jessica. One week after making the call, Betty Jo learned that a social worker went to Jessica's house to investigate the charge. The following week, the police asked Betty Jo to make a police report. She told the police that defendant had done "everything" to Jessica which she meant as full sexual intercourse, but she specifically denied ever stating to the police that he forced her to perform oral sex. On cross-examination, Betty Jo stated that Jessica also told her that two years earlier, in approximately 1993, defendant had sexual contact with her. By this account, Jessica reported the earlier incident to her mother, and her mother pressed charges but there was insufficient evidence to convict defendant. Melissa Adams, Betty Jo's mother, testified that in January or February, Betty Jo approached her and asked to discuss a problem in confidence. She then disclosed Jessica's allegations to her. Melissa instructed Betty to have Jessica tell her own mother, and later spoke to Jessica about the matter. At this time, Jessica was pale, shaking and scared, and Mrs. Adams told her that if she did not tell her mother, she would do so or would call 696-KIDS. Mrs. Adams subsequently learned that defendant went to Florida so she did not pursue the matter. Later, when he returned, Mrs. Adams again informed Jessica that she would report her allegations - 6 - if Jessica did not do so. Officer Melvin Wilson of the Cleveland Police Department testified that he visited Jessica's home in May 1995. At this time, Jessica's mother related that she suspected that her daughter had been sexually assaulted. She further related the name of a suspect, that she had received threats from the suspect, and that he had broken into the house. Officer Wilson also interviewed Jessica and Betty Jo but did not attempt to gather physical evi- dence because of the time lapse and because the family members indicated that items in the house had been cleaned and moved. There was no mention of any previous incident from 1993. Marsha Thompson, a certified pediatric nurse practitioner testified that she performs evaluations and examinations for the Alpha Unit of MetroHealth Medical Center. Thompson examined Jessica on July 3, 1995. She obtained a patient history which revealed no voluntary sexual activity. In her subsequent examina- tion, she determined that Jessica's development was a stage IV of the five stage Tanner Developmental Stages of children. She further determined from Jessica's anatomical appearance that the hymen appeared normal. Thompson noted, however, that with that particular level of development it would become "estrogenized," and therefore could expand without trauma. Thompson further noted the fossa navicularis had projections which were possibly venereal warts. The posterior fourchette was widened and had multiple folds demonstrating that this tissue has been pulled or stretched apart. - 7 - From the foregoing, Thompson concluded that her genitalia was abnormal and had changes which are more frequently described in children who have been sexually abused than in those who have not been sexually abused. Laboratory results were negative for disease or infection, however. Lynn Foulkrod, Jessica's mother, testified that she dated the defendant for three years and that he eventually moved into her home. Mrs. Foulkrod, her children, and defendant lived as a family and in 1994, defendant and Mrs. Foulkrod openly discussed getting married. Defendant's role was similar to that of a stepfather and he had authority to give the children directions. At the time of trial, Mrs. Foulkrod was pregnant with defendant's child. In late April 1995, she learned of Jessica's allegations from her neighbor then asked defendant to leave the house until she could determine what had happened. When defendant arrived home, he denied having sex with Jessica. Mrs. Foulkrod insisted that he leave, packed some of his things, then drove him to a friend's house. The next day, defendant returned to talk and to obtain more of his things. She permitted him to get his things then insisted that he leave. Defendant returned the next day and again denied that anything had happened. At this time, defendant reportedly stated that if Mrs. Foulkrod went to the police, her house would be set on fire after everyone had gone to sleep. Several days later, after Mrs. Foulkrod had locked all of the doors of the house and gone to bed, she found defendant standing in her bedroom at 4:00 - 8 - a.m. She asked him how he had gotten in and he said he broke in through a sliding door in order to talk with her. He left after learning that she had not reported the allegations of sexual abuse to the police. The following morning, she called the police to report both the break-in and Jessica's allegations. The responding officer spoke with Jessica privately. Mrs. Foulkrod further testified that in later discussions, defendant admitted to having had sex with Jessica but he claimed that it was consensual and that she had seduced him. On cross-examination, Mrs. Foulkrod admitted that two years earlier, Jessica alleged that defendant had inappropriate contact with her but later explained to an interviewer that her charge had been a mistake. Following the presentation of the state's case, the court dismissed the fifth count of the indictment, which charged defen- dant with rape, pursuant to Crim. R. 29(A). The defense elected to offer evidence and presented the testimony of Richard Wiedemer, defendant, his father, Heriberto Ramos, Sr., his sister, Edna Ramos, Humberto Torres, and Donna Dumann. Richard Wiedemer, president of Hinkley Lighting, testified that defendant is employed by Hinkley Lighting. He also produced defendant's employment records which indicate that defendant worked the night shift, i.e., from 3:30 p.m. to midnight. He further - 9 - stated that defendant resigned from his employment on February 20, 1995 and stated that he had to make an emergency return to Puerto Rico. Humberto Torres testified that he helped defendant move things out of Mrs. Foulkrod's home days before his arrest and at this time neither Jessica nor Mrs. Foulkrod gave any indication of a problem with defendant. Defendant's father testified that after charges were brought against his son, he invited Mrs. Foulkrod and her family to dinner at his home in order to talk about the case. Mrs. Foulkrod refused to discuss the matter at this time, but she and Jessica behaved in an ordinary manner and Mrs. Foulkrod later spoke to defendant on the telephone for almost half an hour. Edna Ramos testified that she overheard the first five minutes of this conversation and there was no argument. Rather, Mrs. Foulkrod sounded jovial and discussed the baby they were expecting. Donna Dumann testified that she is defendant's girlfriend and that she and defendant lived together from 1992 until 1994. She further stated that defendant's penis is crooked and that this deformity is very noticeable. Defendant testified that he quit his job at Hinkley Lighting after learning that his youngest daughter was planning on running away to Puerto Rico with an older man, and that a police report prepared in New Jersey, in the city where his daughter lived, supports this claim. He further testified that he did not leave - 10 - Ohio in order to evade the charges. He further stated that several years ago, when he first moved in with Mrs. Foulkrod, Jessica accused him of molesting her but he was never charged and Mrs. Foulkrod resumed the relationship. He maintained that Jessica has repeatedly tried to have him put in jail but he has never touched her in a sexual way and did not rape her. According to defendant, noise travels within the house and due to back problems, he was not capable of forcing Jessica downstairs for sex. According to defen- dant, Jessica had been sexually active with her baby sitter's son, and had also been molested by one of her uncles. Defendant admitted to returning to the home in the middle of the night but he explained that he was allowed to enter the home through the rear door at any time. During this incident, he asked that Jessica simply tell the truth. He denied ever threatening Jessica, Mrs. Foulkrod, or her family. Defendant admitted on cross-examination that he functioned as a stepfather in the home and had the power to discipline the children. The matter was submitted to the court and defendant was found guilty of all of the remaining charges. The court subsequently sentenced defendant to ten to twenty-five years incarceration on the rape charges, five to fifteen years for the burglary charge, and two years for the intimidation charges, with all terms to be served concurrently. Defendant now appeals and assigns eleven errors for our review. - 11 - Defendant's first assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS WAIVER OF A JURY TRIAL WAS NOT MADE IN CONFORMITY WITH LAW AND WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED. Within this assignment of error, defendant asserts that his waiver of a jury trial was not knowingly, intelligently and volun- tarily entered because it was not made in open court, was not made following a colloquy, and defendant's primary language is Spanish. Waivers of the right to a jury trial are governed by R.C. 2945.05 which provides as follows: In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defen- dant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: 'I ***, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury.' Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had oppor- tunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial. In State v. Pless (1996), 74 Ohio St.3d 333, paragraph one of the syllabus, the supreme court held that there must be strict compliance with R.C. 2945.05. Nonetheless, there is no requirement in the statute that the trial court determine on the record that the waiver was made knowingly, voluntarily, and intelligently. - 12 - Further, the supreme court held in State v. Jells (1990), 53 Ohio St.3d 22, 26, as follows: There is no requirement in Ohio for the trial court to interrogate a defendant in order to determine whether he or she is fully apprised of his right to a jury trial. The Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and oppor- tunity to consult with counsel. Accord State v. Hill (1992), 64 Ohio St.3d 313, 326. In this instance, defendant executed a written jury waiver which provided in relevant part as follows: I *** hereby voluntarily and knowingly waive and relin- quish my right to a trial by jury, and elect to be tried by a judge of the court in which said cause may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury. ORDER The above jury waiver was executed by the defendant in the presence of the Court. *** /s/ Judge Ronald Suster " While we have not been provided with a transcript of these proceed- ings, it is clear that the waiver was in turn signed by the defendant, and was journalized by clerk of courts on November 28, 1995. Thus, the waiver comports with Ohio law, and in the absence of a transcript, we have no basis from which to determine that defendant did not knowingly, voluntarily, and intelligently waive his right to a jury trial. Cf. State v. Summers (1981), 3 Ohio St.3d 234, 236-237 (In the absence of a transcript, presumption of regularity is applicable). As to the additional contention regarding defendant's fam- - 13 - iliarity with the English language, the trial transcript unequi- vocally demonstrates that an interpreter was not necessary, that comprehension was not expected to be a problem (Tr. 7), and that defendant understood and responded to the questions put to him by his counsel and the state. The first assignment of error is overruled. Defendant's second assignment of error states: DEFENDANT WAS DENIED HIS CONSTITUTIONAL AND SPEEDY TRIAL RIGHTS. Within this assignment of error, defendant asserts that he was tried beyond the time limits set forth in R.C. 2945.71 because a speedy trial waiver which he executed on June 23, 1995 became ineffective as of July 12, 1995. This claim lacks merit. Pursuant to R.C. 2945.71, a criminal defendant who is charged with a felony must be brought to trial within two hundred seventy days after his arrest. It is well-settled, however, that when a defendant knowingly and voluntarily signs a waiver of his right to be brought to trial within the time period specified in R.C. 2945.71, and the waiver states no time period after which it is to expire, his rights are not infringed upon as long as he is tried within a reasonable time. State v. Kidd (1978), 60 Ohio App.2d 374, 376; State v. Johnson (1984), 13 Ohio App.3d 271, 271-272. In this instance, defendant appeared before the court on June 23, 1995, with counsel, and executed a written waiver of his speedy trial rights which provided in relevant part as follows: - 14 - *** I consent to this case being continued, even if it has to be continued indefinitely. ATTESTATION OF COUNSEL I *** attorney of record *** hereby attest that I have explained to the Defendant his speedy trial rights, and my client understands this right and that the consequences of the waiver of that right, and that this waiver is knowingly, intelligently, and voluntarily made. (Emphasis added). At this time, counsel stated that he wished to disregard a previously discussed trial date and stated that he did not wish to set a trial date at that time. The court then indicated that it would hold a pretrial on July 12, 1995, at which time it would set a trial date. (Supp. Tr. 6-7). Defendant's trial began on November 26, 1995. Thus, the waiver executed in this matter stated no time period after which it would expire, and it remained in effect until the date of trial. Thereafter, the date of trial was approximately seven months after defendant was indicted, and this time period has been upheld by this court. Id. Defendant's second assignment of error is without merit. Defendant's third assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ADMITTED EVIDENCE CONCERNING STATEMENTS OF DEFENDANT AFTER HE HAD INVOKED HIS RIGHT TO COUNSEL. In Miranda v. Arizona (1966), 384 U.S. 436, 479, the Supreme Court of the United States held that the constitutional protections against self-incrimination require that before custodial interroga- - 15 - tion may proceed, the suspect must be advised of his right to remain silent, informed that anything said can and will be used in court, informed of his right to consult with an attorney and to have counsel present during questioning, and that if he cannot afford an attorney one will be appointed for him prior to any questioning. The Court further held that if the suspect requests counsel, "the interrogation must cease until an attorney is present." Id. at 474. Once a defendant invokes his right to counsel, police may not re-initiate questioning without the attorney present unless the defendant himself initiates further communications. Edwards v. Arizona (1981), 451 U.S. 477, 484-485. That is, *** nothing in the Fifth and Fourteen Amendments would prohibit the police from merely listening to [the defendant's] voluntary, volunteered statements and using them against him at the trial. Id., at 485. In this instance, Cleveland Police Detective Marvin Cross testified that he arrested defendant on May 4, 1995, after he was apprehended by citizens at a bar. Det. Cross advised defendant of his Miranda rights, then determined that defendant understood those rights. Defendant stated that he did not wish to say anything until he had an attorney. While being booked, however, defendant spontaneously uttered a threat against one of the men who had apprehended him and indicated that he would obtain a plea bargain in this matter. (Tr. 340-344). Det. Cross was not cross-examined as to his testimony that the defendant spontaneously uttered this - 16 - remark. The record therefore fails to demonstrate any constitu- tional violation and the assignment of error is overruled. Defendant's fourth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW AND PLAIN ERROR WAS COMMITTED WHEN MEDICAL OPINIONS WERE GIVEN BY A NURSE. Defendant next complains that the trial court erred in permit- ting Marsha Thompson, a pediatric nurse practitioner, from testify- ing as to her examination of Jessica. Specifically, defendant complains that Thompson provided medical opinions and was not qualified to do so. As an initial matter, we note that defense counsel stipulated that she was "an expert in her field." (Tr. 216) Further, the defense did not object to any of her testimony. Considering the matter for plain error pursuant to Crim.R. 52, we note that while defendant's appellate counsel describes her as a nurse and then maintains that pursuant to R.C. 4723.151, she was not qualified to make medical diagnoses, we note that Thompson is a nurse practi- tioner and is therefore permitted under R.C. 4723.43 to provide preventative and primary care services and evaluate and promote patient wellness within the nurse's nursing specialty consistent with the nurse's education and certification, and in accordance with the rules adopted by the board. ***. Herein, there has been no demonstration that Thompson exceeded this statutory authority, and in any event, the testimony was focused primarily upon Thompson's own observations regarding Jessica's - 17 - anatomy. Moreover, the testimony challenged herein concerning whether the anatomical changes were consistent with sexual intercourse is not prejudicial in light of the defense's claim that Jessica had been sexually active with someone other that the defendant. The fourth assignment of error is overruled. Defendant's fifth assignment of error states: DEFENDANT WAS ILLEGALLY SENTENCED FOR BURGLARY. Within this assignment of error, defendant maintains that his conviction for burglary pursuant to R.C. 2911.12(A)(3), is a felony of the fourth degree which carries a maximum sentence of eighteen months. Defendant was indicted for burglary pursuant to R.C. 2911.12(A)(3), which is a felony of the fourth degree. See R.C. 2911.12(C). Thus, pursuant to R.C. 2929.11(D)(2), the terms of imprisonment for this offense are six months, one year, or eighteen months. Within its journal entry, however, the court sentenced defendant to five to fifteen years incarceration for this con- viction. Thus, this assignment of error is well-taken. We therefore reverse defendant's sentence for burglary and remand for resentencing as to this portion of defendant's conviction. Defendant's sixth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF THE OFFENSE OF BURGLARY. - 18 - Defendant next complains that he was erroneously convicted of the offense of burglary because there was no evidence to demon- strate that he trespassed into Mrs. Foulkrod's home. Rather, defendant asserts that he was privileged to enter the home because he had lived there. The Ohio Supreme Court has held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal con- viction 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. [Citation omitted.] State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. Moreover, the credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. More specifically, the element of a trespass has been estab- lished where a defendant who previously lived with his girlfriend in her apartment, no longer has permission to be inside the apart- ment, moves out, then forcibly reenters the apartment. See State v. Brooks (1995), 101 Ohio App.3d 260, 264. In this instance, the evidence demonstrated that in the end of April 1995, Mrs. Foulkrod learned of Jessica's allegations. She then packed defendant's things and told him to leave until she could determine what had happened. (Tr. 280-282). Thereafter, "a - 19 - few days after *** [Mrs. Foulkrod] woke up at 4:00 in the morning and he was standing in [her] bedroom." (Tr. 289). She had not given him permission to enter, and he stated that he had broken in through a sliding door. (Tr. 292). This evidence sufficiently establishes the essential elements of burglary, including the essential element of a trespass. Defendant's sixth assignment of error is overruled. Defendant's seventh assignment of error states: DEFENDANT'S RIGHT TO PRESENT A DEFENSE WAS DENIED WHEN THE COURT WOULD NOT ALLOW VIEW [SIC] DEFENDANT'S PENIS. Within this assignment of error, defendant complains that the trial court erred in failing to view defendant's penis because defendant contends that it is noticeably crooked and Jessica testified that it was straight. Evid. R. 403 vests a trial court with discretion to determine whether the probative value of proffered evidence is substantially outweighed by the danger that it is prejudicial, confusing, or misleading. See State v. Adams (1980), 62 Ohio St.2d 151, 157. Absent an abuse of discretion, a court of appeals should be slow to interfere with an evidentiary ruling of the trial court. State v. Maurer (1984), 15 Ohio St.3d 239, 265. We find no abuse of discretion herein. As cogently argued by the state, the customary manner of presenting such evidence would have been by motion for medical examination. In any event, the record demonstrates that the trial court accepted defendant's - 20 - contention. (Tr. 549) Nonetheless, there was no evidence that this condition prevented defendant from engaging in sexual relations and Jessica testified that it was dark during the attacks. Defendant's seventh assignment of error is overruled. Defendant's eighth and ninth assignments of error are interrelated and state: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED MOTIONS OF JUDGMENT OF ACQUITTAL AS TO THE OFFENSES OF INTIMIDATION OF MAY 4, 1995. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION FOR JUDGMENT OF ACQUITTAL AS TO INTIMIDATION IN APRIL, 1995. Herein, defendant maintains that there is no evidence to support the conviction as to the May 4, 1995 intimidation charge because insufficient evidence was presented and there "is abso- lutely no evidence concerning Jessica" and no evidence that he attempted to influence her on this date. Likewise, defendant asserts that there is no evidence to support the conviction for the April 1995 intimidation charge because defendant's alleged threat on this date goes to the force element on the state's rape charge. Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. - 21 - The material elements of the offense of intimidation are set forth in R.C. 2921.03: (A) No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder a public servant, party official, or witness in the discharge of his duty. (Emphasis added). With regard to defendant's claim that the May offense was not established because there was no act directed at Jessica, the complaining witness, we note that in State v. Price (1990), 69 Ohio App.3d 243, 244-245, the court held that the offense was established where the defendant directed threats to a police officer who executed the warrant for his arrest. Indeed, the language of the statute prohibits the "threat of harm to any person." Nonetheless, as to the May 4, 1995 incident, only vague hearsay was introduced through Officer Russell concerning a phone call which was placed to Mrs. Foulkrod's house while he was there. (Tr. 330-333). There was no evidence from the target of the threat and there was no evidence of the nature of the threat. The eighth assignment of error is well-taken and this conviction for intimidation is hereby reversed. With regard to the offense from April 1995, the trial court properly denied the motion for a judgment of acquittal as to the April 1995, offense since it was established that after defendant broke in he threatened to have Mrs. Foulkrod's house set on fire. The ninth assignment of error is without merit. - 22 - Defendant's tenth assignment of error states: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. Within this assignment of error, defendant asserts that his trial counsel was ineffective because he: (1) failed to object to prejudicial hearsay; (2) failed to object to Marsha Thompson's opinion testimony; (3) failed to object to the introduction of privileged information; (4) failed to object to the cross- examination of defendant regarding a criminal conviction which was over ten years old; (5) failed to object to improper cross- examination of defendant; (6) failed to move to suppress defen- dant's post-arrest statements; (7) allowed the introduction of irrelevant evidence concerning the events surrounding defendant's arrest; (8) failed to object to improper closing argument by the state; (9) and failed to move for dismissal of the charges for violation of the right to a speedy trial. In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court held that in order to establish a claim of ineffective assistance of counsel a defendant must meet the follow- ing two-part showing: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. - 23 - Further, where the asserted error upon which a claim of defi- cient performance is premised has been rejected by the reviewing court, then the claim of deficient performance will likewise be rejected. See State v. Henderson (1989), 39 Ohio St.3d 24, 33. By application of the foregoing we conclude that the claim of deficient performance cannot be sustained with regard to items (2), (6), and (9), cited by defendant's appellate counsel. Since there is no merit to each of these underlying claims of error, there has been no deficient performance. Accord State v. Henderson, supra. We further note, with regard to item (3) concerning the letter to Father Viol, that the priest was the spiritual advisor to Jessica, not defendant. Indeed, defendant repeatedly stated that he was not Father Viol's parishioner, and that defendant is of a different religion. Thus, there was no communication for "a religious counselling purpose" within the meaning of R.C. 2317.02(C). There was therefore no privilege and defense counsel did not commit an error in failing to object to this evidence. As to item (4), evidence now being denounced concerning the state's questioning of defendant concerning a previous conviction over ten years old, the record reveals that the defense initially introduced evidence of the conviction in order to explain defen- dant's remarks to Det. Cross regarding a plea bargain. With the defense having introduced this issue in the trial for this strategic purpose, the state was permitted to cross-examine this testimony. Evid.R. 611(B); Cf. State v. Litz (1982), 8 Ohio App.3d - 24 - 321, 324. Thus, this claim must likewise fail because there has been no showing of deficient performance. Likewise as to item (7) concerning the introduction of the "irrelevant" evidence concerning the events surrounding defendant's arrest, it is clear from count eight of the indictment charging defendant with intimidation on the date of his arrest, that this evidence was relevant to the ultimately unsuccessful attempt to establish this charge. Thus, the failure to object to this evi- dence does not demonstrate deficient performance. As to item (1), concerning the introduction of various testimony challenged as hearsay, we presume that the challenged statements of Betty Jo Adams were considered as excited utterances. Without reaching a definitive conclusion that the statements were in fact admissible under this exception to the hearsay rule, cf. State v. Fenton (1990), 68 Ohio App.3d 412, 421-428, we note that the normal presumption in a bench trial applies: The normal presumption in a bench trial applies. It appears that the court '*** considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.' State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759, certiorari denied (1988), 484 U.S. 1079, quoting State v. White (1968), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 136, 239 N.E.2d 65, 70. State v. Lott (1990), 51 Ohio St.3d 160, 166-167. Thus, we hold that the second prong of the Strickland test has not been met and the claim of ineffective assistance of counsel will not lie in connection with the introduction of this evidence. With regard to the statements of Mrs. Adams, Officer Wilson, - 25 - Mrs. Foulkrod, and Det. Cross which are also challenged in item (1), we conclude that these statements were not introduced in order to prove the truth of the matters asserted, but to explain the actions of a witness to whom the statements were directed. See State v. Thomas (1980), 61 Ohio St.2d 223, 232. Thus, no error may be recognized in counsel's failure to object to introduction of this testimony. With regard to the statement of Officer Russell concerning the intimidating phone call Mrs. Foulkrod received which is also challenged in item (1), we conclude that this evidence was imper- missible hearsay. Nonetheless, we recognize no prejudice from counsel's failure to object to this evidence, in light of this court's reversal of this conviction for intimidation. With regard to the introduction of Mrs. Foulkrod's written statement, we note that the supreme court has held that written statements are admissible and not hearsay, if offered solely to prove that a statement was given to the police, but are hearsay if the contents of the statement are used to prove the truth of the matter asserted. State v. Williams (1988), 38 Ohio St.3d 346, 348. Again, this matter was tried to the court without a jury so the court is presumed to have considered only the relevant and properly admitted evidence. We therefore presume that the court considered the statement for its proper purpose. State v. Lott, supra. With regard to item (5) concerning the state's cross- examination of defendant regarding whether the state's witnesses - 26 - were liars, the supreme court has held that no witness is permitted to evaluate the credibility of another. See State v. D'Abrosio (1993), 67 Ohio St.3d 185, 193. We can discern no prejudice, however, from these two isolated questions. Thus, we recognize no ineffective assistance claim in connection with this contention. With regard to item (8) concerning the state's closing argument, the supreme court has repeatedly held that such remarks are not evidence and may not be considered as such. See, e.g., State v. Davis (1991), 62 Ohio St.3d 326, 337. We again presume that the trial court did not consider the remarks as evidence in making his determination of guilt or innocence. State v. Lott, supra. Defendant's eleventh assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS MOTIONS FOR JUDGMENT OF ACQUITTAL WERE OVERRULED AND HIS CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In evaluating the merit of this assignment of error, we note that in State v. Mattison (1985), 23 Ohio App.3d 10, 14, this court set forth the following factors to be considered by the reviewing court in determining whether a conviction is against the manifest weight of the evidence: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; - 27 - 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. Moreover, the credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. In this instance, we do not find the convictions to be against the manifest weight of the evidence. The unrefuted evidence of Marsha Thompson established clear evidence that Jessica had been the subject of sexual conduct, and Jessica's testimony identifying defendant as her assailant was credible, definite, detailed, and in no way self-serving. In short, we cannot conclude that the court lost its way in accepting her testimony. Likewise the evidence going to the burglary offense and the remaining charge of intimidation was certain, detailed, and not refuted as to any significant point. Defendant's evidence, however, was vague, incomplete and at times illogical. - 28 - The eleventh assignment of error is overruled. Affirmed in part, reversed in part, and remanded for resentencing as to the burglary conviction. - 29 - It is ordered that appellee and appellant split the 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. BLACKMON, P.J., AND KARPINSKI, 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 .