COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71978 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION : SHANNON BROWN : : Defendant-Appellant : : : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-342685 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ROBERT GLICKMAN Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: RAYMOND GRUSS 14701 Detroit Ave., Suite 555 Lakewood, Ohio 44107 -2- O'DONNELL, J.: Shannon Brown appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him not guilty of kidnapping, but guilty of gross sexual imposition; he alleges prosecutorial misconduct deprived him of a fair trial and he received ineffective assistance of counsel because during its closing argument, the prosecution referred to his failure to testify and the court failed to give a cautionary instruction to the jury. Having thoroughly reviewed the transcript, we conclude Brown's assignments of error are without merit and therefore affirm his conviction. The case history reveals that on August 28, 1996, Tanika Walters traveled by bus from North Ridgeville to downtown Cleveland intending to register for a training program at the Cleveland Job Corps. After getting off the bus, she approached Brown and asked him for directions to the Job Corps, and he offered to walk her there. They began walking down the street, and Brown asked her to read some song lyrics he had written. They then walked toward some tennis courts at Cleveland State University and sat down in a landscaped area. Shortly thereafter, Brown began to kiss her. She stated she had no desire to kiss him, complained that his breath smelled of alcohol, and rejected his sexual advances. As she stood up and attempted to leave, he grabbed her and pushed her to the ground, covered her mouth with his hand, laid on top of her, and grabbed -3- her buttocks. She struggled and eventually escaped by running into the street, where she stopped a police car and reported the incident. When Brown ran from the bushes, the police arrested him for gross sexual imposition and kidnaping. Following his indictment for these charges, the court conducted a jury trial where the state presented testimony from three witnesses regarding the incident: Walters, Patrolman Alan Stacho of the Cleveland Police Department, and James Kuestner, a bystander who heard Walters screaming and ran to the scene and discovered her hair disheveled and her clothes covered in wood chips. The defense called Detective Karl Lessman of the Cleveland Police Department and attempted to elicit testimony from him concerning the contents of a written statement Brown gave to police during their investigation. The state objected, and the court sustained the objection. During closing argument, defense counsel referred to Brown's written statement, which had not been admitted into evidence, and urged the jury to conclude that its contents contradicted evidence offered by the state and maintained that the jury did not have access to Brown's statement because of a legal situation. The prosecutor objected to this argument. The court sustained the objection and then conducted a side bar conference during which the prosecutor indicated an intention to refer to Brown's failure to testify, and defense counsel did not object. -4- During the closing portion of final argument, the prosecutor referenced the defense counsel's argument regarding Brown's statement and argued that Brown should have taken the witness stand in his own defense. The jury returned verdicts finding Brown not guilty of kidnaping but guilty of gross sexual imposition. He now appeals and presents three assignments of error for our review. The first and third assignments of error state: I. THE TRIAL COURT ERRED IN FAILING TO CONTROL THE ATTORNEYS' CONDUCT DURING CLOSING ARGUMENTS TO THE DETRIMENT OF THE APPELLANT BY FAILING TO PREVENT COMMENTS MADE REGARDING THE APPELLANT'S FAILURE TO TAKE THE WITNESS STAND AND ONCE MADE BY FAILING TO PROVIDE A CURATIVE INSTRUCTION TO THE JURY, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. III. THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE PROSECUTION'S REMARKS AND COMMENTS IN REBUTTAL CLOSING ARGUMENT WHICH PREJUDICIALLY AFFECTED THE DELIBERATIONS OF THE JURY. Here, Brown argues that the court erred by allowing the state to refer to his failure to testify, without providing a curative instruction to the jury, and that these statements constituted prosecutorial misconduct, thereby depriving him of a fair trial. The state argues the court did not err because defense counsel, having referred to inadmissable evidence in closing argument, invited comment by the state, and the court properly allowed the state to rebut these improper statements. -5- The issues, then, for our determination are whether the court erred in failing to provide a limiting instruction to the jury following the state's reference to Brown's failure to testify, and whether prosecutorial misconduct deprived Brown of a fair trial. Our analysis in this case is guided by Crim.R. 30(A), which limits a party's opportunity to appeal on the basis of jury instructions: * * * On appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds for the objection. * * * Crim. R. 52 (B) defines plain error: (B) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. The erroneous grant or denial of a jury instruction does not constitute plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Cooperrider (1983), 4 Ohio St.3d 226. In the absence of plain error under Crim. R. 52(B), an appellate court may not review any alleged error in the granting or failure to grant instructions to a jury, unless the party complaining has voiced the objection before the jury retired to consider its verdict. R.C. 2907.05 defines the crime of gross sexual imposition and states in part: (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; * * * when any of the following applies: -6- (1) The offender purposely compels the other person * * * to submit by force or threat of force. R.C. 2907.01 (B) defines sexual contact as follows: any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person Our review of a claim of prosecutorial misconduct is guided by the Ohio Supreme Court's statement in State v. Phillips (1995), 74 Ohio St.3d 72, 90, certiorari denied, 116 S.Ct. 1835: The conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives defendant of a fair trial. The Ohio Supreme Court, in State v. Keenan (1993), 66 Ohio St.3d 402, 410, explained that in determining whether a prosecutor's conduct deprived a defendant of a fair trial, the court must consider the effect the misconduct had on the jury in the context of the entire trial. In making a claim of prosecutorial misconduct,the appellant has the burden to show that the misstatements at issue clearly altered the outcome of the trial. See State v. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus. We are further guided by the principle of invited error, which provides One who has made the first error cannot avail himself of error which is caused thereby and which is calculated only to offset it; a party cannot complain of his opponent's argument to the jury, where it amounts only to a reply in kind to matters introduced in his own argument. State v. Swanson (1967), 9 Ohio App.2d 60, 69-70. -7- In Brown's trial, controversy arose when his defense counsel improperly referred to the contents of his client's written statement, an item not admitted into evidence. Following the prosecutor's objection, which the court upheld, the court held a side bar conference in which the prosecutor stated he intended to refer to Brown's failure to testify. Defense counsel consented. Brown's counsel never requested a jury instruction referring to the prosecutor's comments. Brown raises the issue of error in the court's failure to give such an instruction for the first time on appeal, but fails to show the outcome of his trial would have been different had such an instruction been given. Therefore, because Brown failed to request such an instruction before the jury retired to deliberate, and this failure to instruct does not rise to the level of plain error, we may not review Brown's first assignment of error and it is therefore overruled. Brown's claim of prosecutorial misconduct fails as well. Viewed in the context of the entire trial, wherein the state presented evidence establishing all elements of gross sexual imposition, including eyewitness testimony from Walters, the arresting officer, and a bystander who heard Walters' screams, Brown failed to establish the prosecutor's reference to his failure to testify, which comments his defense counsel invited through his improper statements, clearly altered the outcome of his trial. For this reason, Brown's third assignment of error is without merit and is therefore overruled. -8- Brown's second assignment of error states as follows: -9- II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Brown argues his counsel failed to represent him effectively because his improper reference to Brown's statement resulted in the prosecutor's reference to Brown's failure to testify. The state argues that Brown received effective assistance of counsel because the actions which form the basis of his claim are tactical judgments of his attorney. The issue for our consideration, then, is whether defense counsel's improper reference to Brown's statement denied Brown 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 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. In evaluating defense counsel's performance, a reviewing court must accord deference to counsel's strategic choices from counsel's perspective at the time of trial, without the benefit of hindsight. See Strickland, supra. In order to show prejudice, the defendant -10- must show that a reasonable probability exists that, absent counsel's error, the result of the trial would have been different. See State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. Here, the record reflects that Brown's counsel referred to the contents of a written statement Brown gave to police, which, due to Brown's failure to testify, the defense did not admit into evidence. This improper comment opened the door for the prosecutor to refer to Brown's failure to testify in his rebuttal. In pursuing his claim of ineffective assistance of counsel, Brown has the burden to show that his counsel committed grievous errors and that but for his counsel's actions, the outcome of the trial would have been different. Brown's counsel's made a tactical decision in commenting on the contents of the inadmissable statement, and, although this decision resulted in the prosecutor's reference to Brown's failure to testify, Brown failed to establish a reasonable probability that the outcome of his trial would have been any different in its absence. Therefore, Brown's second assignment of error is not well taken and is overruled. Affirmed. -11- 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. PATRICIA BLACKMON, A.J., and JAMES M. PORTER, J., CONCUR 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 .