COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71188 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : CHARLES E. WHITE, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 16, 1997 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-332538 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Edward M. Walsh Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: James R. Willis Courthouse Square Building 310 Lakeside Avenue, N.W. Suite 595 Cleveland, Ohio 44113 2 NAHRA, P.J.: Appellant, Charles E. White appeals his convictions on three counts of rape, two counts of felonious sexual penetration, and two counts of gross sexual imposition. White's trial and conviction arose from allegations by Lakeeta Williams that he sexually abused her on three separate occasions. Appellant was a Cleveland Police Officer for fourteen years, and Lakeeta was a seventeen year old high school senior. White was married to Lakeeta's aunt Jackie, who is a sister of Lakeeta's mother Terressa. White and Lakeeta are step uncle and step niece, and according to their testimony, for the last eight years had shared what they referred to as a close and loving relationship. Throughout the course of those years, Lakeeta would live with the appellant and his wife during holidays, most weekends, and often all of summer vacation. White's family, to Lakeeta, was in effect her second family, often preferring their company to that of her parents. As a result, Lakeeta had her own bedroom in their home and could come and go as she pleased. At trial, Lakeeta stated that White first sexually abused her on September 3, 1995. That morning, at approximately 6:00 a.m., he cornered her in a bathroom fondled her breasts, and placed his fingers inside her vagina. Later that same morning, appellant repeated these offenses in Lakeeta's bedroom while she was still in her bed. These events accounted for convictions of one count of gross sexual imposition and one count of felonious sexual penetration. 3 The second alleged incident occurred in early November, where sometime between 2:00 a.m. and 3:00 a.m. White was alleged to have entered Lakeeta's bedroom and again fondled her breasts and inserted his fingers inside her vagina. For these actions, the jury found appellant not guilty. The last incident occurred on January 1, 1996 after a New Years Eve party at appellant's home, an annual event. On this morning, Lakeeta alleged that White entered her bedroom at approximately 6:00 a.m., removed her panties, and proceeded to again insert his fingers inside her. This action accounted for the second conviction of felonious sexual penetration. He then placed his weight on her to restrain her, covered Lakeeta's mouth and proceeded to place his penis in her vagina against her will, an action resulting in the first conviction of rape. Immediately following this vaginal intercourse, appellant proceeded to perform oral sex on Lakeeta, which also resulted in penetration, accounting for the second count of rape. White then left the room, re-entered moments later after retrieving a condom, got back into Lakeeta's bed, and proceeded to vaginally penetrate Lakeeta. This action accounts for the third count of rape. During each and every instance, Lakeeta maintained she told the appellant to stop and he refused. Appellant timely appealed and assigns six errors for our review. I. The appellant's first assignment of error states: 4 I. THE COURT COMMITTED PLAIN ERROR WHEN, IN SPITE OF THE PATENCY OF A CONSIDERABLE QUANTITY OF HEARSAY EVIDENCE PROVIDED BY VARIOUS PROSECUTION WITNESSES, THE JURY WAS ALLOWED TO CONSIDER SUCH TESTIMONY AS SUBSTANTIVE PROOF OF APPELLANT'S GUILT. Since no objection to the claimed hearsay evidence was made, we consider this assignment of error under the plain error standard of review. In order to prevail under a standard of plain error, Crim.R. 52(B), appellant must establish that the outcome of his trial would clearly have been different had the alleged errors not occurred. State v. Waddell (1996), 75 Ohio St.3d 163, 661 N.E.2d 1043; State v. Gideon (1977), 52 Ohio App.2d 70, 77. [N]otice of plain error is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710. Appellant contends that during the course of the trial, the court erred in allowing certain hearsay testimony to take place, and subsequently allowed the jury to consider this hearsay as substantive proof of the appellant's guilt. Hearsay is defined as a statement, other than one made by declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). Most of the passages cited by appellant's counsel do not qualify as hearsay, under this definition, because the statements are direct testimony from the victim regarding what she said to other witnesses. Id. However, there are two instances referred to by appellant's counsel that do 5 qualify as hearsay. The first instance happened during direct examination of Lakeeta concerning the rape, and is as follows: . Did you and your aunt then have a conversation? . Yes, she asked why I hadn't told her (about the rape), and I shouldn't have been keeping that from her. . Did you answer her? . I told her I didn't want to come between him and her and I didn't want her to stop talking to me because of what happened. . What was her response to that? . She just said that she wouldn't let no man come between me and her, that she believed me. . That she believed you? . Yes. (Emphasis added.) 6 The second instance involved Terressa and Jackie where Terressa stated that: . I asked, I told her (Jackie) what my daughter had just told me and asked her what was going on . And she said she didn't know, that was the first she had heard of it and then she said that she wouldn't have put it past him, but I really didn't know what she meant by that. . Wait a minute. She said, I wouldn't put it past him? . Yes. . How did she say this, was she, was it in an excited manner? . She just said, you know Terressa, I wouldn't put it past him. (Emphasis added.) Arguably in both these situations, the response elicited may have been objected to as hearsay. However, the fact of the conversations taking place was properly before the jury and the decision not to object and further emphasize the comments cannot be faulted. On review, great deference is given to an attorney's decisions during the course of the trial. Unless the offending situation is patently unreasonable so as to cause prejudice, an attorney's trial strategy will not be questioned. Strickland v. Washington (1984), 466 U.S. 688. Also, in light of the entire record, these comments can hardly be regarded as outcome determinative so as to satisfy the plain error standard. State v. D'Abrosio (1992), 73 Ohio St.3d 147, 652 N.E.2d 710. The first assignment of error is overruled. II. 7 The appellant's second assignment of error states: II. THE PROSECUTOR WAS GUILTY OF MISCONDUCT AND THE APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE PROSECUTOR WILFULLY AND DELIBERATELY ELICITED WHAT HE HAD TO KNOW WAS IMPERMISSIBLE HEARSAY EVIDENCE FROM VARIOUS PROSECUTION WITNESSES, INCLUDING THE ALLEGED VICTIM. The conduct of a prosecuting attorney during trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial. State v. Gest (1995), 108 Ohio App.3d 248, 257, 670 N.E.2d 536, 542; State v. Keenan (1993), 66 Ohio St.3d 402, 613 N.E.2d 203, 206; State v. Apanovitch (1987), 33 Ohio St.3d 19,24, 514 N.E.2d 394, 400. Although it is a serious issue, we have not treated prosecutorial misconduct as reversible error `except in rare instances' Keenan, 66 Ohio St.3d at 406, 613 N.E.2d at 206, quoting State v. Depew (1988), 38 Ohio St.3d 275, 288, 528 N.E.2d 542, 556. Furthermore, in weighing its effect on appellant's due process rights, the effect of the misconduct on the jury must be determined in the context of the entire trial. Keenan at 406. The touchstone of analysis * * * is the fairness of the trial, not the culpability of the prosecutor. * * * The Constitution does not guarantee an `error free, perfect trial.' Gest, at 257. In this assignment of error appellant refers to extensive testimony by the victim, including the portion cited under assignment of error I, without specific reference to which questions by the prosecutor constituted deliberate misconduct. As mentioned in our response to the first assignment of error, outside of the specific areas already dismissed within that error, the referenced hearsay is inconsequential to the eventual outcome of 8 this case. Any hearsay that was elicited by the state, either intentionally or unintentionally, taken in context of the entire trial, cannot be said to be so egregious as to have affected the decision making process. Again, since no objections were made, the plain error standard applies and we find it has not been met. The appellant's second assignment of error is overruled. III. The appellant's third assignment of error states: III. GIVEN THE FAILURE OF THE DEFENSE COUNSEL TO OBJECT (ON HEARSAY AND CONFRONTATION GROUNDS) TO THE ADMISSION OF CONSIDERABLE PREJUDICIALLY INADMISSABLE TESTIMONY, THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. The federal and Ohio test for determining if a defendant was denied the effective assistance of counsel are strikingly similar. The federal test is whether counsel's conduct so undermined the proper functioning of the adversarial process that the defense was prejudiced. Strickland v.Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693. In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus, it was determined that in Ohio an ineffective assistance claim requires proof that counsel's performance is proved to have fallen below an objective standard of reasonable representation and in addition prejudice arises from counsel's performance. Id. In order to establish such prejudice, the appellant must demonstrate that there is a reasonable probability that, were it not for counsel's errors, the results of the trial would have been different. Id., paragraph three of the syllabus. Furthermore, we presume that counsel's assistance was both reasonable and 9 professional. State v. Thompson (1987), 33 Ohio St.3d 1, 10, 514 N.E.2d 407, 416-417; see, also, Strickland, 446 U.S. at 689, 104 S.Ct. At 2065, 80 L.Ed.2d at 694. After review of the entire record and careful consideration, we reject appellant's argument. The actions and inactions of an attorney directly relate to his or her trial strategy. The failure to object is not a per se indicator of ineffective assistance of counsel because counsel may refuse to object for tactical reasons. State v. Riffle (1996), 110 Ohio App.3d 554, 556, 674 N.E.2d 1214, 1216, quoting State v. Gumm (1995), 73 Ohio St.3d 413, 428, 653 N.E.2d 253, 267. As a result, the failure of appellant's counsel to object to the hearsay and confrontations, as noted in appellant's brief, did not equate to ineffective assistance. The appellant's third assignment of error is overruled. IV. The appellant's fourth and fifth assignments of error are interrelated and will be treated together. These assignments of error state: IV. THE PROSECUTOR WAS GUILTY OF WILFUL MISCONDUCT, AND THE ACCUSED DENIED A FAIR TRIAL WHEN DURING HIS CROSS- EXAMINATION OF THE ACCUSED, IT WAS WILFULLY INSINUATED, WITHOUT A FACTUAL BASIS, THAT THE ACCUSED (A POLICE OFFICER) WAS IN EFFECT A ROGUE COP. V. THE ACCUSED WAS DENIED DUE PROCESS WHEN THE PROSECUTOR RESORTED TO AN IMPERMISSIBLE LINE OF QUESTIONS WHEN CROSS-EXAMINING THE ACCUSED AND WHEN HE VOICED HIS PERSONAL OPINION AS TO THE CREDIBILITY OF THE APPELLANT. A prosecutor is at liberty to prosecute with earnestness and vigor, striking hard blows, but may not strike foul ones. State v. Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883, 885; see, also, 10 Berger v. U.S. (1935), 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314. Although the prosecutor wants to emerge victorious, he shall not do so at the expense of justice. Smith, supra. As a result it is incumbent upon a prosecutor to remain impartial as to guilt during the trial and present the facts and evidence, as he knows them, to the best of his ability. However, as the advocate for the state, the prosecutor is free during summation, within reason, to candidly characterize the evidence in a manner which advances his or her case. State v. Frambach (1992) 81 Ohio App.3d 834, 845, 612 N.E.2d 424. The Supreme Court has also found that a cross-examiner may ask a question if the examiner has a good faith belief that a factual predicate for the question exists. Gest, supra. Furthermore, it is beyond dispute that the trier of facts is to be the judge of a witness' veracity and credibility. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. On review however, it is not enough that there be sufficient other evidence to sustain a conviction in order to excuse the prosecution's improper remarks. Instead, it must be clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury would have found the defendant guilty. Smith, supra, at 15. The appellant maintains that the prosecution engaged in misconduct when they asked the accused, on cross, about an accusation made by his superiors on the police force about his connection to a known crack house. The offending questions went as follows: . Okay. You have told us, your defense counsel, that you have never been accused of anything as a police 11 officer, never been arrested, never even been accused of anything? . No, I haven't. . Is that your testimony? . Yes, it is. . Weren't you accused of tipping off crack houses at 141st and Nell? . No I was not. . That never happened? . It never happened. The prosecutor in the instant case committed no prejudicial error in questioning the defendant on issues already addressed by the appellant on direct examination. The attorney for appellant specifically brought Mr. White's police record into the purview of the court on direct, and, as a result, it was proper to impeach appellant on cross. The rule of invited error, a corollary of equitable estoppel, prohibits a party who induces error in the trial court from taking advantage of such error on appeal. State v. Woodruff (1983), 10 Ohio App.3d 326, 327, 426 N.E.2d 457. Accordingly, the appellant's fourth and fifth assignments of error are found to be without merit and are overruled. V. The appellant's sixth assignment of error states: VI. GIVEN THAT THE GUILTY VERDICTS IN THIS CASE ARE BASED UPON EVIDENCE WHICH IS SO IMPROBABLE OR UNSATISFACTORY THERE REMAINS A REASONABLE DOUBT AS TO GUILT, THE VERDICTS ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND ARE CONTRARY TO LAW. 12 When reviewing a criminal conviction to determine whether the evidence is sufficient to support the verdict, the 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. State v. Jenks (1991) 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. The relevant inquiry does not include how the appellate court might interpret the evidence, rather the appellate court must be mindful that the jury heard the evidence and was instructed as to the law, and was vested with the responsibility of determining the credibility of the witnesses. Id.; see, also, State v. Clark (1995) 106 Ohio App.3d 426, 666 N.E.2d 308, D'Abrosio, supra, at 147. After careful examination of all of the testimony, reasonable minds can easily come to the conclusion that defendant was guilty as charged. The detailed testimony of the victim, which the jury was free to believe in its entirety, was sufficient to convict. Accordingly, assignment of error number six is overruled. Judgment affirmed. 13 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. O'DONNELL, J., and ROCCO, J., CONCUR. JOSEPH J. NAHRA 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 .