COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71349 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY : vs. : AND : KEVIN TOLLIVAR : OPINION : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 31, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-334795 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ___________________________ APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor SEAN C. GALLAGHER Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: MICHAEL D. BAKER STEWART MANDEL 75 Public Square, Suite 650 Cleveland, Ohio 44113-2001 O'DONNELL, J.: Kevin Tollivar appeals from a judgment of the common pleas court entered pursuant to jury verdict finding him guilty of 2 sexual battery of Lishana Baldwin. The record reveals that Tollivar had grown up with Baldwin and known her for more than twenty years; during that time, they had never engaged in sexual relations. On the evening of October 13, 1995, Tollivar patronized the C.C. Club located at East 110th Street and St. Clair Avenue in Cleveland, Ohio, and, while there, met his brother, Chris, and Baldwin's brother, Isamore, a.k.a Hot Shot. They remained there for most of the evening. On the same evening, Baldwin visited a haunted house in Painesville, Ohio, with friends and consumed at least six cans of beer. About 1:00 a.m., she returned to her home, located at 1414 West 85th Street in Cleveland, which she shared with her cousin, DeCarlo Steward, and her three children. When she arrived home she went to bed. Around 2:00 a.m., Tollivar left the C.C. Club and drove to Baldwin's residence arriving there about 2:30 a.m., which he testified was not unusual for him. After visiting briefly with Steward, Tollivar stated he needed to use the bathroom, proceeded upstairs, and after leaving the bathroom, visited Baldwin in her bedroom where they engaged in sexual intercourse. Tollivar then went downstairs, talked briefly with Steward and left. The following morning, Baldwin noticed her panties were off and noticed a vaginal discharge and when her daughter inquired about the man who had been there, she realized that she had engaged in sexual intercourse during the night and learned that she had been alone with Tollivar in her bedroom. That morning, when Tollivar telephoned, Baldwin accused him of raping her during the 3 night. Later that same day, she called the police and obtained an examination at MetroHealth Medical Center in Cleveland after informing them she believed she had been raped during her sleep. Tests confirmed recent sexual intercourse but disclosed no sign of force. The grand jury indicted Tollivar on one count of sexual battery and the court conducted a jury trial. Baldwin testified that, after she returned home, she put her daughter to bed, then fell into a deep sleep from which she did not awaken until morning. Steward testified, however, that she actually made two trips up and down the stairs carrying both children to bed. Baldwin further stated that, being asleep, she did not consent to sexual intercourse with Tollivar and that she had no memory of the event. Tollivar testified that Baldwin had been awake as he entered her bedroom, that after he used the bathroom, he observed her watching television and then asked her about the haunted house. She then asked him if he could handle it, and told him that he did not need any protection because she took a monthly injection. He moved her sleeping son out of the bedroom and they then engaged in consensual sexual intercourse following which, he went downstairs, talked briefly with Steward and left. The MetroHealth medical records introduced into evidence show that Baldwin does in fact receive a monthly injection. At the close of the state's case, the defense made a motion for acquittal which the court denied. At the close of all the evidence, the jury rendered a guilty verdict, the court imposed 4 sentence, and Tollivar now appeals raising three assignments of error for our review. The first assignment of error states: APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW DUE TO PERVASIVE AND REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT WHICH DEPRIVED APPELLANT OF A FAIR TRIAL. Tollivar, contends that prosecutorial misconduct deprived him of a fair trial in that the prosecutor asked numerous leading questions; improperly cross-examined him regarding his relationship with Lonny, his girlfriend; about possible motives Baldwin would have to falsely accuse him of sexual battery; bullied defense witnesses; attempted to impeach defense counsel; appealed to the sympathy of the jury; and expressed, during closing argument, a personal opinion that Baldwin's version of the incident was the more credible. The state denies prosecutorial misconduct urging that Tollivar opened the door to evidence regarding the relationship with his girlfriend, and that only relevant questions which summarized previously admitted testimony and probed Baldwin's possible motives to falsely accuse Tollivar were asked. The state, however, admits misconduct, during closing argument, in expressing a personal opinion regarding Baldwin's credibility, but argues that it did not deprive Tollivar of a fair trial. The issue presented for our review is whether prosecutorial misconduct deprived Tollivar of a fair trial. In considering a claim of prosecutorial misconduct, we apply the well settled two-part test which the court used in State v. 5 Pumpelly (1991), 77 Ohio App.3d 470, 481: * * * The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substantial rights of the accused * * *. When applying this test, we are guided by the standards set forth in State v. Keenan (1993), 66 Ohio St.3d 402, 410: We consider the effect the misconduct had on the jury in the context of the entire trial * * *. One factor relevant to the due-process analysis is whether the misconduct was an isolated incident in an otherwise properly tried case * * *. Here, the record reveals that Tollivar, on direct examination, testified regarding his girlfriend, thus opening the door to the prosecutor's related questions, and that Tollivar, on cross- examination, volunteered his opinions on Baldwin's possible motives to falsely accuse him. Further, the record reflects the prosecutor made no improper remarks except for expressing, during closing argument, his personal opinion that Baldwin's version of the incident possessed more credibility than did Tollivar's which, pursuant to State v. Hill (1996), 75 Ohio St.3d 195 and State v. Apanovitch (1987), 33 Ohio St.3d 19, constituted misconduct. However, the court otherwise properly tried this case and the misconduct did not prejudicially affect Tollivar's right to a fair trial. Accordingly, this assignment of error is overruled. The second assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY OVERRULING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE. Tollivar contends the court erred when it denied his Crim.R. 6 29 motion for acquittal since the state failed to provide evidence that, at the time he engaged in sexual conduct with Baldwin, he possessed knowledge of a substantial impairment to her ability to appraise the nature of, or control, her own conduct. The state argues the trial court properly overruled Tollivar's Crim.R. 29 motion since the prosecution presented sufficient evidence of Tollivar's knowledge at the time he engaged in sexual conduct with Baldwin that she was drunk, which constituted evidence of a substantial impairment to her ability to appraise the nature of, or control, her own conduct. The issue presented for our review is whether the trial court erred when it overruled Tollivar's Crim.R. 29 motion based upon insufficient evidence regarding the element of impairment. We begin our analysis by reviewing Crim.R. 29(A) which states in relevant part: * * * The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment * * * if the evidence is insufficient to sustain a conviction of such offense or offenses * * *. In reviewing a record for sufficiency, we look to the standard articulated in State v. Taylor (1997), 78 Ohio St.3d 15, 18: * * * [T]he relevant inquiry is whether, after reviewing 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 * * *. Here, the state undertook the burden to prove the elements of the offense of sexual battery defined in R.C. 2907.03(A)(2): 7 * * * No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: * * * The offender knows that the other person's ability to appraise the nature of or control his or her own conduct is substantially impaired * * *. (Emphasis added). In this case, the state presented evidence that Tollivar and Baldwin, not husband and wife, engaged in sexual intercourse, that at the time she was in a state of deep sleep and/or drunkenness, and that she had not consented to intercourse with Tollivar, from which the jury could infer her condition substantially impaired her ability to control her conduct. Reviewing this evidence in a light most favorable to the state, as we are required to do, a rational trier of fact could have found beyond a reasonable doubt the elements of the offense of sexual battery. Hence, the court did not err when it denied his Crim.R. 29 motion for acquittal. Accordingly, this assignment of error is overruled. The third assignment of error states: APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Without specifics, Tollivar contends defense counsel's failure to object to the leading questions concerning issues of consent and impairment, improper remarks in the state's closing argument and improper questions during his cross-examination denied him the effective assistance of counsel. The state asserts that this claim relates to the conduct of the prosecutor and the court's rulings and not the competency of defense counsel. The issue then presented for our review is whether defense 8 counsel's failure to object to the alleged incidents of prosecutorial misconduct denied Tollivar the effective assistance of counsel. In considering a claim of ineffective assistance of counsel, we apply the two-part test of Strickland v. Washington (1984), 466 U.S. 668, 687: * * * 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 the defendant 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. Here, the record reveals defense counsel objected on numerous appropriate occasions during the state's case and the prosecutor's cross-examinations. Further, since we have already determined that only one incident of prosecutorial misconduct occurred, which did not prejudicially affect Tollivar's right to a fair trial, any failure of defense counsel to object did not prejudice the defense or deprive Tollivar of a fair trial. Accordingly, this assignment of error is overruled. Judgment Affirmed. 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 9 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. DYKE, P.J., and HOLMES, J., CONCUR (Justice Robert E. Holmes, Retired, the Supreme Court of Ohio, Sitting by Assignment) JUDGE TERRENCE O'DONNELL 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 .