COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71654 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) PATRICK O. STOKES ) ) Defendant-Appellant ) Date of Announcement of Decision DECEMBER 11, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-338526 Judgment Affirmed Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES ROBERT G. WALTON, ESQ. Cuyahoga County Prosecutor 13111 Shaker Square MELODY A. WHITE, Assistant Suite 211 Prosecuting Attorney Cleveland, Ohio 44120 1200 Ontario Street Cleveland, Ohio 44113 2 JAMES M. PORTER, J.: Defendant-appellant Patrick O. Stokes appeals from his convictions on three counts of rape, kidnapping, aggravated robbery and importuning young boys. Defendant claims he was deprived of effective assistance of counsel in violation of his constitutional rights. We find no merit to these contentions and affirm. On October 22, 1996, defendant was placed on trial for rape, kidnapping, aggravated robbery, public indecency and importuning. The crimes with which defendant was charged occurred on April 21 and 23, 1996. At trial, the following evidence was presented. On April 21, 1996, 14 year old Jovan Robinson was walking down Kingston on the near west side with his friend Doug Clemons. He said that a blue Grand Am pulled up to the curb and the boys walked to the car because they thought they knew the driver. When the driver rolled down the passenger side window, the boys could see that he was masturbating. The boys told him to get out of our face and the car drove off and then circled back around the block. This time, the man in the car propositioned the boys by asking if he could perform oral sex on them. The boys again told him to go away. The boys then made a note that the car had temporary license tags and Jovan went home and told his mother what had happened. A couple of days later, his mother saw on the news that a person in a blue Grand Am had assaulted another boy. It was then that his mother called the police and took him down to the Justice Center. Jovan identified the defendant in a line up as the man who approached him. He again identified him in court. 3 Douglas Clemons testified to basically the same facts that Jovan did. He was also able to identify the defendant in court as the person who propositioned them and also picked him out of the police line up. Late in the afternoon on April 21, 1996, 11 year old Rashon Ellis was walking with his 14 year old brother Sidney to the rapid station on West 98th street near West Boulevard. They encountered a black man in a blue car who called to them and told them to look at him. When the boys looked in the passenger window which was rolled down, they saw that the man was masturbating. The boys then ran away. Rashon was unable to identify the defendant in court. When shown a picture of the defendant's car, Rashon identified it as the car that the man was in. On cross-exam, however, Rashon stated that although the car looked like the car, he was not sure whether the car he saw had the black leather covering on the front. When shown the car from a different angle, he again said it was the same car. Rashon's brother Sidney testified to basically what Rashon did. He said that he told his uncle with whom he lived what happened and that a couple of days later, after seeing the news, his uncle called the police. Sidney testified that he recalled the car was blue and that it had a black covering on front. He identified the defendant's car in the pictures as the one that the man was in. Sidney, like Rashon, was also unable to identify the defendant in court. 4 On April 23, 1996, Samuel Gonzalez, then 12 years old, was playing basketball at the Cuddell Recreation Center located on Detroit and West Boulevard. He was walking home around 8:00 p.m. when he saw a black male with a green hood come towards him in the parking lot. After trying to make small talk with Samuel, the man grabbed him and with a metal fork, forced him behind a wall. Samuel said that the man then pulled out a knife and forced him into a blue 1990-1991 two door Grand Am. After seat belting the boy in, the man crawled over him to the driver's side and they drove off. As they were driving, Samuel said the man made him put his head down on his knees and blind folded him with green jogging pants. Eventually the man stopped driving and parked the car. He then pulled the boy's pants down and performed oral sex on him. Afterwards, he turned the boy over and put the passenger seat completely down and after applying lubricant to the boy's rectum, digitally penetrated him and then raped him twice. Samuel testified that he was screaming and crying the whole time and that the man threatened to kill him if he did not stop. Samuel also defecated on himself. When the man finished, he drove to West 98th, took the boy's blindfold off and threw him out of the car. He told Samuel that if he tried to look at the car he would run him over. In pain and crying, Samuel made his way to Margaret's Bar. He told a man in the bar that he had been molested and to call the police. Once the police arrived, Samuel described the car to the police and gave them a description of the defendant. He described 5 his assailant as a black male in his 20's or 30's who was wearing red jogging pants and a green pullover jacket with a hood tied real tight. Samuel identified the defendant in court as the man who assaulted him. He also identified pictures of the defendant's car as the one in which he was assaulted. Samuel said that he was able to pick the defendant out of a police line up because he remembered his face and after the police made the defendant talk, he remembered his voice. On cross exam, Samuel admitted that it was dark in the parking lot the night he was accosted but on redirect stated that there were lights on in the parking lot and he was able to see defendant because he was holding him close and was able to get a good look at him. Richard Jones was the man at Margaret's Bar who called the police for Samuel. He testified that when the boy came in he was hysterical and crying with his pants down around his knees. The boy told him that he had been raped and to call the police. He was also walking hunched over as if in pain and he could not sit down. Jones called the police and then called the boy's father. Dr. Virginia Evans, an emergency room doctor at Lakewood Hospital, testified that Samuel was brought in by ambulance. She described him as being very fearful and upset and was clinging to his father. She was able to perform a rape kit culture on him and also noticed that his rectum had tears. Since the boy was in too much pain for her to examine him throughly for internal injuries, she called Dr. Trillis, a surgeon at the hospital, to perform an exam on the boy under anaesthesia. Dr. Trillis testified that he 6 found no internal injuries to the boy except for multiple deep lacerations in the anal area and bruising. Officer Raymond Dietz testified that he went on duty at 7:00 p.m. on April 23, 1996. He said he was conducting a basic control of Detroit Avenue with his partner in a marked police car around 8:18 p.m. when they saw a blue Pontiac Grand Am pulling into a parking lot where only trucks usually park. Dietz thought this was suspicious and suspected the car was stolen, as there was no reason for a car to drive back in that area of the parking lot. He and his partner drove by the car in the parking lot and were able to see that there were keys in the ignition indicating it was not stolen. The Grand Am never stopped but drove in a circle and left the lot. He also called in a license check and it came back clear. He said he was only able to see one person in the car. Forty-five minutes later, Dietz received a radio call that a sexual assault had occurred in a blue two door Grand Am. Realizing he had seen the car earlier, he called in for a recitation of the information of the license and owner's name that they had received earlier. Dietz said that he would not have been able to see the boy in the car earlier if the boy was crouched down below the window. Officers Kennelly and Griffin testified that they responded to the call from Margaret's Bar and interviewed the boy. They testified that the boy was hysterical and crying and obviously in pain. He told them that he had been raped and digitally penetrated. They noted he had blood on the inside of his thighs by 7 his knees and that his pants were down by his feet and he had boxer shorts on. The boy gave them a description of the car and assailant and they broadcasted the information over the radio. On April 25, 1996, the Cleveland Sex Crimes Unit asked Sgt. Marvin Cross to find the suspect, Patrick Stokes. Sgt. Cross received a description of a blue Grand Am with a temporary tag of L670233 and obtained information that the suspect could be found in the area of East 45th and Woodland. He went to that area, spotted the car and set up surveillance. While waiting, he received information that the suspect was in the area of East 30th and Central, so he proceeded to that location and apprehended the defendant as he exited 2824 Central Avenue. Sgt. Cross then had the car towed for processing and turned the defendant over to Sgt. Gail Walsh-Koehl of the Sex Crimes Unit. Sgt. Walsh-Koehl confiscated the defendant's clothing, which included red jogging pants, and had them delivered to the Scientific Investigation Unit. On April 27, 1997, members of the Cleveland Police Scientific Investigation Unit processed the defendant's car. They found 26 tubes of Astroglide lubricant, numerous condoms, a metal fork, a grey shirt and a green hooded jacket in the back seat. The sleeve of the jacket tested positive for seminal fluid, and the shirt tested positive for human blood. The rectal swab from the rape kit was found to contain blood. Samuel's shirt, jeans and boxer shorts tested positive for feces. An area of his jeans between the back pockets tested positive for seminal fluid. All pertinent items and known blood and saliva samples of both the victim and the defendant 8 were transported to the Coroner's Office for further testing. DNA testing established that the semen on Samuel's pants was from the defendant, with the polymarkers occurring only 1 time in 4,478 of all black men in the entire world. Prior to submitting the case to the jury, the trial court dismissed one of the kidnapping counts as being duplicative. The jury convicted the defendant on all counts except the counts of public indecency in relation to the Ellis brothers. The defendant was sentenced to three life terms for the rapes and 10 to 25 years each on the kidnapping and aggravated robbery counts, all of which were ordered to be served consecutively. The defendant was sentenced to 30 days each for two counts of public indecency and six months each for two counts of importuning; all concurrent with the other sentences. This timely appeal followed. Defendant's assignments of error will be addressed in the order asserted. I. TRIAL COUNSEL'S FAILURE TO REQUEST A SEVERANCE OF THE RAPE AND OTHER CHARGES WHICH ALLEGEDLY OCCURRED ON APRIL 23 1996 FROM THE MISDEMEANOR CHARGES OF IMPORTUNING AND PUBLIC INDECENCY WHICH ALLEGEDLY OCCURRED ON APRIL 21, 1996 CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, DENIED THE APPELLANT A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND IS COGNIZABLE ON APPEAL AS PLAIN ERROR UNDER CRIM.R. 52(B). Defendant contends that he was deprived of effective assistance of counsel because his counsel failed to move, pursuant to Crim.R. 14, to sever or try separately the April 21 offenses of public indecency and importuning from the April 23 offenses of rape or kidnapping. We find no merit to these contentions. 9 The standards to be applied when considering whether counsel was constitutionally ineffective were set forth by this Court as follows in Lakewood v. Town (1995), 106 Ohio App.3d 521, 525-26: The standard of review for ineffective assistance of counsel requires a two-part test and is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, also, State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. [T]he defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland at 687-688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must also prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Whether or not a motion to sever would have been ultimately successful is a test for ineffective assistance of counsel in the circumstances of this case. State v. Hamblin (1988), 37 Ohio St.3d 153, 156. The crimes which occurred on April 21 (importuning and public indecency) were properly joined with the crimes of April 23 (rape and kidnapping) and were clearly admissible to establish identity and modus operandipursuant to Evid.R. 404. Crim.R. 8(A) provides: Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. 10 The offenses herein were clearly of the same or similar character and constituted parts of a common scheme and a course of criminal conduct. However, if similar offenses are properly joined pursuant to Crim.R. 8(A), a defendant can still move to sever the charges pursuant to Crim.R. 14 if their consolidation will prejudice his or her rights ***. When a defendant claims that he was prejudiced by the joinder of multiple offenses, a court must determine (1) whether the evidence of other crimes would be admissible even if the counts were severed ***. If the evidence of other crimes would be admissible at separate trials, any prejudice that might result from the jury's hearing the evidence of the other crime in a joint trial would be no different from that possible in separate trials. State v. Schain (1992), 65 Ohio St.3d 51, 58-59. The evidence established that the defendant was prowling the area surrounding the Cudell Recreation Center and inviting and/or committing various sex offenses on young boys. The rapes of Samuel occurred within two days of the defendant's importuning and exposing himself to the Ellis boys, Jovan Robinson and Douglas Clemons. The acts were all of a sexual nature with young boys and occurred in the same locale by the driver of a blue Grand Am. Therefore, the acts of April 21 are related to the acts of April 23 by time, location, vehicle and perpetrator. The acts shared the common scheme or plan to have sex with young boys in the blue Grand Am. Evid.R. 404(B) permits the introduction of evidence of other crimes to prove a plan or identity so long as the evidence is not used merely to prove the bad character of the person and that he 11 acted in conformity therewith. The Supreme Court recently described when other acts are admissible to show modus operandi in State v. Lowe (1994), 69 Ohio St.3d 527, 531, as follows: Other acts may also prove identity by establishing a modus operandi applicable to the crime with which a defendant is charged. "Other acts forming a unique, identifiable plan of criminal activity are admissible to establish identity under Evid.R. 404(B)." State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180, syllabus. "'Other acts' may be introduced to establish the identity of a perpetrator by showing that he has committed similar crimes and that a distinct, identifiable scheme, plan, or system was used in the commission of the charged offense." State v. Smith (1990), 49 Ohio St.3d 137, 141, 551 N.E.2d 190, 194. While we held in Jamison that "the other acts need not be the same as or similar to the crime charged," Jamison, syllabus, the acts should show a modus operandi identifiable with the defendant. State v. Hutton (1990), 53 Ohio St.3d 36, 40, 559 N.E.2d 432, 438. The evidence supports the conclusion that the defendant's lack of success on April 21 led to his acts of April 23, and the acts on the 21stwere therefore arguably related to the crimes on the 23rd. The modus operandi of defendant's escalating and repetitive misconduct to achieve his criminal ends was extemely relevant. See State v. Keith (March 13, 1997), Cuyahoga App. No. 69267, unreported. Since the other crimes could have been properly admitted as other acts, even if there was separate trials regarding the rape and kidnapping offenses, defendant has not been prejudiced. Furthermore, even if the April 21 acts should have been severed, defendant has failed to show such evidence was 12 prejudicial. State v. Wiles (1991), 59 Ohio St.3d 71, 76 ( Where a defendant claims that joinder was improper he must affirmatively show prejudice. ). The evidence exclusive of the April 21 offenses overwhelmingly supported the jury's finding the defendant guilty of the offenses committed against Samuel Gonzalez; and likewise, the evidence exclusive of the April 23 offenses supported the jury's finding defendant guilty of the offenses committed against Jovan Robinson and Douglas Clemons. State v. Ward (April 9, 1992), Cuyahoga App. No. 60219, unreported at 5. Assignment of Error I is overruled. 13 II. THE FAILURE OF TRIAL COUNSEL TO OBJECT TO KAY MAY'S BEING QUALIFIED AS AN EXPERT WITNESS ON THE SUBJECT OF DNA, COUNSEL'S FAILURE TO EFFECTIVELY CROSS EXAMINE KAY MAY WITH RESPECT TO HER QUALIFICATIONS, TESTING AND CONCLUSIONS CONCERNING DNA, AND COUNSEL'S FAILURE TO OBJECT TO THE IMPROPER HEARSAY TESTIMONY OF KAY MAY CONCERNING THE BASIS FOR HER CONCLUSIONS REGARDING DNA EVIDENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, DEPRIVED THE APPELLANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, AND COMPRISED HIS RIGHT TO A FAIR TRIAL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The defendant contends that he received ineffective assistance of counsel because his lawyer was unable to successfully attack the DNA testimony by Assistant Deputy Coroner, Kay May. Defendant first contends that counsel should have objected to May's qualifications as a DNA expert. Ms. May testified to her career at the Coroner's Office in serology. She attended the College of Wooster, the University of Michigan, and the State University of South Dakota. She received her Bachelor of Science Degree from the School of Medicine of South Dakota and completed a 12 month training program in Akron. She is a registered Medical Technologist and has been performing laboratory work for 33 years. She has worked at the Coroner's Office, performing DNA and other serology work for six years. She has performed approximately 2,500 DNA tests, has done testing to validate DNA studies, and constantly double checks her results with her Supervisor, Linda Luke. She unquestionably meets the qualifications of an expert under Evid.R. 702(B) and the court was well within its discretion in allowing her to testify. See State v. Blair (1990), 70 Ohio App.3d 774, 789 14 (expert qualified as DNA expert: B.A. in Science Technology; is a microbiologist and hybridization supervisor; worked on 30 to 40 forensic cases and over 1,000 paternity cases); State v. Thomas (1991), 63 Ohio App.3d 501, 505 (expert qualified as DNA expert: B.S. and Master of Science; post-doctorate in molecular biology; well published and testified numerous times in court). Defendant also contends counsel was ineffective for not cross- examining May regarding her scientific conclusion regarding the DNA results. DNA is an exact science (Tr. 561) and is now universally accepted in the scientific community and constitutes reliable evidence. See State v. Pierce (1992), 64 Ohio St.3d 490, 497; State v. Nicholas (1993), 66 Ohio St.3d 431, 437. Few people understand the intricacies of the science or how it works. Defense counsel can hardly be said to have fallen below an objective standard of reasonable representation on this issue by failing to go into intricate detail on the testing methods or an explanation of the science itself. Such detailed questions, even if understood, may, in fact, have alienated the jury. A review of the record does indicate however that defense counsel did cross-examine May regarding the reliability and accuracy of the tests to the best of his ability. Finally, defendant contends counsel was ineffective for not objecting to May's reliance on standard DNA percentage profiles as being hearsay. The fact that defendant did not object to May's reliance on the percentage profiles did not constitute ineffective assistance of counsel. Although it is true that she herself did 15 not personally compile these profiles, it can be said that she has used them [the DNA compilations] with such frequency that they become part of the body of knowledge that qualified her as an expert. State v. Breeze (Nov. 24, 1992), Franklin App. No. 92AP- 258, unreported; See, also, State v. Drain (Dec. 29, 1995), Franklin App. No. 95APA03-351, unreported. As the court in State v. Minor (1988), 47 Ohio App.3d 22, 24 held: [A]n expert is a witness who may testify at trial because of special, scientific or technical knowledge which *** will assist the trier of fact to understand the evidence or to determine a fact in issue ***. Evid. R. 702. As such, an expert necessarily brings to each case knowledge of facts and data which are not in evidence, for it is this knowledge which qualifies a witness as an expert. The Supreme Court has held also that DNA evidence is admissible and that any questions regarding its reliability should go to the weight of such evidence rather than its admissibility. State v. Pierce, supra at 497. Furthermore, defendant has failed to show that he was prejudiced by the introduction of such evidence. There was a considerable amount of other evidence introduced at trial which identified the defendant as the assailant. State v. Nicholas, supra, at 437. Assignment of Error II is overruled. III. IN THE AGGREGATE, THE DEFICIENCIES AND ERRORS IN TRIAL COUNSEL'S PERFORMANCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, DENIED APPELLANT HIS RIGHT TO CROSS EXAMINE THE WITNESSES AGAINST HIM, AND DEPRIVED HIM OF A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 16 Defendant lists numerous examples of alleged defective representation by defense counsel. These all amount to second guessing strategic trial choices. The first is that his attorney told the jury on voir dire that his client might not testify because he would not stand a chance against the prosecutor and, when he did not testify, his attorney did not request an instruction on a defendant's right to not testify. The attorney's remark may have not been wise, but it was certainly better than telling the jury his client would not be testifying because they would find out he has a prior conviction for a sex offense. During voir dire, the judge did explain to the jury a defendant's right not to testify immediately after defense counsel made the challenged remark. (Tr. 132-133). At the conclusion of the trial, the judge specifically asked both the defendant and his attorney what their wishes were regarding an instruction on defendant's right not to testify. Both the attorney and the defendant said they did not want the instruction given to the jury. (Tr. 702-703). The merits of reminding the jury of defendant's failure to take the stand is debatable. We will not second guess defense counsel on such close calls regarding trial strategy. Defendant also claims that his attorney should have filed a motion to suppress Samuel's out of court identification of him, did not adequately cross-examine Samuel regarding his ability to identify him, and did not request a cautionary instruction regarding eyewitness identification. The defendant bears the 17 burden of establishing ineffective assistance of counsel and any prejudice resulting therefrom. The defendant was at the lineup. If the lineup was somehow suggestive or otherwise improper, there should be some allegation of wrongdoing on the part of the police. Without some allegation of misconduct, it is fair to assume that a suppression hearing would have been a futile exercise. State v. Steele(1982), 8 Ohio App.3d 137, 139 ( The filing of such motions [suppression motions] is not routine and should be done only where the motions have arguable merit. ). To press cross-examination of the young boy Samuel on defendant's identity may have only emphasized the State's proof. For the same reason, a cautionary instruction on eyewitness identification was not required. Samuel saw the defendant when he first approached him in the parking lot, spent some time with him behind the school and in the car before he was blindfolded, and saw him again when the blindfold was removed. Samuel was with the defendant for 30 or 40 minutes and heard his voice during that time. He identified the defendant by sight and by sound. The clothing Samuel described was found on the defendant and in his car. Samuel's description of the car was accurate. Semen was found on the defendant's jacket described by Samuel and found in the defendant's car. DNA testing confirmed that the semen on Samuel's jeans was consistent with the defendant's. A cautionary instruction on eyewitness identification in light of all this evidence would have been superfluous given this state of the evidence. 18 Defendant also claims that counsel was ineffective because counsel wanted to withdraw from the case since defendant refused to enter into a plea bargain. A review of the transcript and the letter in the file the defendant wrote to the trial court, however, indicates that it was defendant who, in fact, wanted his counsel removed as he felt he was being forced to plea bargain. However, the matter was resolved on the record with the defendant telling the court several times that he was satisfied with counsel and wanted him to represent him at trial. A reading of the transcript indicates that in spite of counsel advising the defendant to take the plea, he went on to represent his client as zealously as he could given the state of the evidence. Regarding defendant's argument that his counsel was ineffective for not retaining a DNA expert to rebut the findings of the state's expert, the Supreme Court has held that such a claim is without merit. The Court in State v. Nicholas, supra, at 437 held: As an initial matter, the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel. State v. Thompson (1987), 33 Ohio St.3d 1, 10-11. Second, this court has held that DNA results constitute reliable evidence. State v. Pierce (1992), 64 Ohio St.3d 490, 501. Accordingly, the failure to challenge the admissibility of such evidence cannot be considered ineffective assistance of counsel. It is easy to attack defense counsel's performance after a jury verdict finds the defendant guilty. However, defendant has not established that counsel's errors fell below an objective standard of reasonable representation, and he most certainly has not proven that the result would have been different without the 19 alleged errors. The evidence against defendant was overwhelming, the result was reliable even if all of defendant's allegations have merit, which we have found they do not. Assignment of Error III is overruled. Judgment affirmed. 20 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 Court of Common Pleas 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. JAMES D. SWEENEY, C.J., and KARPINSKI, J., CONCUR JAMES M. PORTER 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 .