COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72064 STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND HAROLD CORROTHERS : OPINION Defendant-Appellant : : : DATE OF ANNOUNCEMENT : FEBRUARY 12, 1998 OF DECISION CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-331139 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs Jones, Esq. Vicki Lynn Ward, Esq. Cuyahoga County Prosecutor The Lincoln Building, Suite 400 By: Richard J. Bombik, Esq. 1367 East 6th Street Assistant Prosecuting Attorney Cleveland, Ohio 44114 The Justice Center 1200 Ontario Street Herbert A. Adrine, Esq. Cleveland, Ohio 44113 18308 Chagrin Boulevard Shaker Heights, Ohio 44122 KENNETH A. ROCCO, J.: -2- Defendant-appellant Harold Corrothers appeals from his conviction for rape contending the jury's verdict of guilty was against the manifest weight of the evidence, the prosecutor's questions of a witness constituted reversible error, and his trial counsel was ineffective for his failure to call certain witnesses at trial. This court has examined the record in light of appel- lant's contentions and finds them to be without foundation; therefore, appellant's conviction is affirmed. Appellant's conviction stems from an incident that occurred on Friday, November 10, 1995. At that time, appellant was employed as shift engineer 1 at the Wyndham Hotel located in downtown Cleveland. Appellant arrived at work at approximately 7:00 a.m., received his work assignment from his supervisor, John Trzop, ate breakfast, and then began making his rounds, i.e., appellant went from floor to floor, checking electrical units in the hotel to ascertain that the units were working properly. April Jackson also worked at the hotel that morning. Ms. Jackson arrived at 8:00 a.m. to begin her duties as a housekeeper. She received an assignment from the housekeeping supervisor, Carrie Scott, to clean all but two of the rooms on the fourth floor of the hotel. Jackson ascertained that all the rooms on that floor were vacant. She then proceeded to the fourth floor. On her way there, she saw appellant. She knew appellant from previous encounters in which appellant would pat her on her butt. Since Ms. Jackson 1Quotes indicate testimony given by a witness at appellant's trial. -3- believed appellant worked an afternoon shift, Jackson asked appellant the reason for his presence so early. Appellant informed her he worked an early shift on Fridays. After that brief encounter, Ms. Jackson proceeded on her way. Jackson reached the fourth floor and assembled her supplies on her housekeeping cart. She then noticed the housekeeper assigned to clean the other two rooms nearly was finished with her task. Soon thereafter, therefore, Jackson was alone as she performed her duties. At approximately 9:15 a.m., Jackson was cleaning room 401 when appellant entered; appellant asked Jackson if she were going to be on the fourth floor all day. Jackson replied yes. Appellant then left, stating he was going to lay down in a vacant room. Slightly more than an hour later, Jackson was preparing to clean room 405. At that time, Jackson saw appellant exiting the guest elevator. Appellant proceeded to the room across the hall from Jackson's location, explaining to her that the guests had left the air on. Jackson retrieved some sheets from her cart and went into room 405. As she spread the clean sheet onto the bed, appellant approached her and began rubbing his hand on her legs and raising up her dress. Jackson's reaction was to remind appellant he could get in trouble for such behavior. Appellant's response was to walk to the door, remove the vacuum cleaner Jackson had placed there to hold the door open, place the vacuum cleaner against the wall, and lock the door. -4- Appellant then re-approached Jackson. Jackson attempted to escape appellant's proximity by going to the other side of the bed, at the same time warning him that they could get caught. Appellant merely changed his direction to continue approaching. Jackson then attempted to cross over the bed to reach the door. Appellant caught Jackson by her legs, grasping them with one hand. Jackson thus was on her stomach on the bed. With Jackson in his grasp, appellant used the other hand to raise Jackson's dress, pull down her stockings and her panties, and unzip his pants. Appellant then lay down on Jackson and raped her. Jackson struggled, but appellant's weight and hands kept her pinioned. When Jackson pleaded with appellant to stop, appellant merely told her to continue pleading. Eventually, appellant removed himself from Jackson, stood up, commented Jackson was no fun, and zipped his trousers. Jackson could not determine if appellant had ejaculated. At that point, appellant merely turned on the room's television set and proceeded to watch a cartoon show from a chair while Jackson attempted to assimilate what had occurred to her. After a short time, appellant stated he couldn't believe it was almost 11 o'clock. He further stated he had to go be seen. He then left the room. When appellant had departed, Jackson used the room's telephone to contact her supervisor, Ms. Scott. Jackson then attempted to clean herself. By the time Scott arrived at the room, Jackson was so upset that she had difficulty in reporting what had happened; however, she indicated a man had forced himself on her. Scott -5- eventually escorted Jackson to the hotel's personnel director. The personnel director spoke with Jackson, then summoned the police. At approximately 11:45 a.m., Detective Sergeant Gail Walker- Koehl of the Cleveland Police Department's Sex Crimes Unit received an assignment to go to the Wyndham Hotel to investigate the incident. Walsh-Koehl spoke with Jackson, accompanied Jackson to room 405 and requested her to describe the attack, then sent Jackson to a nearby hospital for examination. Thereafter, Walsh- Koehl interviewed both appellant and his supervisor, Trzop. Although appellant denied any involvement in the incident, Walsh- Koehl placed appellant under arrest. Subsequently, the results of the medical examination of Jackson conclusively indicated only that she had sexual relations with her boyfriend within twenty-four hours preceding the attack. Appellant was indicted on three counts of violation of R.C 2907.02, Rape. Appellant pleaded not guilty to the charges and retained counsel to represent him. On January 27, 1997, appel- lant's case proceeded to a jury trial.2 Prior to the commencement of the proceedings, the trial court permitted the state to dismiss two of the three counts against appellant; therefore, appellant's case proceeded on only count one. The state presented the testimony of three witnesses during its case-in-chief, viz., Scott, Walsh-Koehl, and Jackson. 2This was appellant's second trial; the jury in the first trial was unable to agree on a verdict. The trial court therefore dismissed that panel and set appellant's case for the later trial date. -6- Appellant presented the testimony of his supervisor and also testified in his own behalf. Thereafter, the trial court permitted the state to recall Walsh-Koehl in order to rebut Trzop's recollec- tion at trial that appellant had returned from his rounds at approximately 10:45 a.m. Subsequently the jury found appellant guilty of one count of rape. The trial court sentenced appellant to a term of incarcera- tion of eight to twenty-five years. Appellant has filed a timely appeal from his conviction, presenting three assignments of error for this court's review. Appellant's first assignment of error states: DEFENDANT-APPELLANT'S CONVICTIONS WERE CON- TRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the evidence cannot support his conviction because the testimony of the victim was uncorroborated and thus unreliable pursuant to the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10. Appellant's argument is un- persuasive. In Mattison, this court stated that in making the determina- tion whether a jury's decision is against the manifest weight of the evidence, several factors should be taken into account by the reviewing court. The stated factors were, however, merely guidelines to be taken into account when weighing the evidence and were not considered to be hard and fast rules. Id. at 14. See, also, State v. Jordan (1992), 73 Ohio App.3d 524. The test to be applied when reviewing a claim that a convic- tion is against the manifest weight of the evidence was stated by -7- the court in State v. Martin, (1983), 20 Ohio App.3d 172 at 175 as follows: There being sufficient evidence to support the conviction as a matter of law, we next con- sider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibil- ity of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) A reviewing court will not reverse a verdict where the jury could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks (1991), 61 Ohio St.3d 259. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. In this case, despite appellant's assertion to the contrary, Jackson's testimony was coherent and revealed a logical progression of events. Jackson stated she reported for work at 8:00 a.m. and received her assignment for the day. Shortly thereafter, she saw appellant on the main floor. By his own testimony, appellant was at that time just beginning his duties upon finishing his breakfast. Since appellant indicated he made his rounds starting in the basement, he would have reached the fourth floor at approximately the time -8- Jackson testified she next observed him, viz., 9:15, when she started cleaning room 401. Jackson further testified that she required approximately one- half hour to clean each room. Logically, she cleaned room 403 after completing the first room. Since she stated appellant reappeared on the fourth floor as she began to clean room 405 at approximately 10:15, her testimony remained consistent. Jackson also testified that following the attack, appellant left when he noticed it was nearly 11:00 a.m. The testimony of the other witnesses for the state corrobo- rated Jackson's testimony. Scott stated she did not respond to Jackson's 11:00 a.m. call from room 405 immediately, but when she arrived, Jackson was in the bathroom, so distraught it was difficult to understand her. Scott testified at least twenty minutes passed before she was able to escort Jackson from the room to the personnel director. Scott further testified some time passed before the personnel director called the police about the attack. Walsh-Koehl testified she received the assignment to investigate the attack at 11:45 a.m. The photographs taken of the scene also corroborated Jackson's testimony since they demonstrated both that the vacuum cleaner had been placed against the wall near the door as Jackson had indicated and that Jackson had spent some time in the bathroom, utilizing wash cloths and facial tissues before reporting the attack. In contrast, the testimony of appellant and his witness concerning the day's events was both incredible and impeached. -9- Appellant stated he was required to make his rounds but denied he was on the fourth floor at all on the day of the incident. Appellant further stated he was with Trzop from approximately 10:30 to 11:30 a.m.; however, he could not account for his time between around 10:00, when he stated he finished making my rounds, and 10:30, when he stated he began work with Trzop fixing wires. Similarly, although at trial, Trzop recalled the time appellant joined him as somewhere in the neighborhood of quarter to eleven, Walsh-Koehl testified in rebuttal that when questioned on the day of the incident, Trzop stated he and appellant were together from 11:15 until noon, pulling wires down in the office next to the front desk. Based upon the foregoing, the jury could find the testimony of the state's witnesses was the more believable and could reasonably conclude appellant was guilty of the crime of rape. State v. Gingell (1982), 7 Ohio App.3d 364; State v. Cox (Jan. 30, 1992), Cuyahoga App. No. 59709, unreported; State v. Gearing (Apr. 8, 1993), Cuyahoga App. No. 62202, unreported. Thus, the factors set forth in State v. Mattison, supra, are met in this case. The State presented reliable, credible evidence of appellant's guilt, and this court declines appellant's request to substitute its own judgment concerning the credibility of the witnesses and the weight to be given to their testimony. This court, therefore, cannot say that on the basis of the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. -10- State v. Martin, supra, at 175. The verdict of guilty was thus not against the manifest weight of the evidence. State v. Jenks, supra. Accordingly, appellant's first assignment of error is overruled. Appellant's second assignment of error states: PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Appellant argues the prosecutor asked improper questions of Walsh-Koehl on direct examination, requiring a reversal of his conviction. Appellant did not object to the questions at trial; therefore, he apparently contends the questions constituted plain error since he asserts the questions were an impermissible comment on his post-arrest silence in contravention of Doyle v. Ohio (1976), 426 U.S. 610. This court disagrees. Generally, conduct of the prosecutor at trial shall not be a ground for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Papp (1978), 64 Ohio App.2d 203. Appellant is entitled to a new trial only when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St.3d 13. In analyzing whether appellant was deprived of a fair trial, this court must determine whether, absent the improper questions or remarks, the jury would have found appellant guilty. State v. Maurer (1984), 15 Ohio St.3d 239. -11- With regard to a claim of plain error, moreover, in State v. Jenks, supra, at 282, the court stated as follows: *** Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the sylla- bus. Plain error does not exist unless, but for the error, the outcome at trial would have been different. State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899. State v. Watson (1991), 61 Ohio St.3d 1, 6, 572 N.E.2d 97, 103. The record reflects that Walsh-Koehl testified on direct examination only that when she interviewed appellant on the day of the incident, he simply denied Jackson's accusation that he raped her on the fourth floor of the hotel. The prosecutor asked Walsh- Koehl no questions concerning any further interrogations of appellant. On cross-examination of Walsh-Koehl, however, the following exchange occurred: Q. Miss, when you interviewed Mr. Corrothers, did you have any problems talking to him? A. No. Q. Did he hesitate or was he reluctant to answer your questions? A. No. At that time you asked him, Harold, were you involved in a rape , what was his answer then? A. No. Q. Harold, did you rape April , what was his answer then? -12- A. No. Q. He denied that all the way; is that right? A. He denied it at that time, yes. * * * Q. Did you ever talk to Harold Corrothers at any time after he was arrested? A. Yes, I did. Q. Did you get a statement from him? A. No, I did not. Q. Did you attempt to get a statement from him? A. Yes, I did. Q. Do you have that statement with you? A. Yes. Q. Did he indicate to you, is that the same information that he gave you? A. I'm unsure of your question. Q. Well, he denied it; was that right? A. Well, he didn't I didn't get a state- ment from him, sir. Q. You didn't get a statement? A. Right. Q. Did he tell you his statement would be the same as it was before? A. He did not give me a statement. Q. Why didn't he give you a statement? A. I -- -13- Q. When did you attempt to get a statement from him. A. Yes, I did. Q. When? A. The next day. If you let me, I can look at my statement to verify. It's been quite awhile. Q. All right. A. November 11th, the next day. Q. What happened there? A. What happened? Q. Yes. A. Well, I brought Harold out of his cell and I brought him over to my office. I sat him down next to my desk and I gave him his constitutional rights again. I asked him if he would like to give me a written statement and he said no and he signed No. Q. He signed No ? Did you indicate to him that he had a right to have counsel there? A. Yes. Q. Did you ask him if he understood that? I asked him if he understood his rights and I asked him if he wished to make any written statements. He said Yes. (Sic). Q. But he had made an oral statement to you denying everything? A. The day before, correct. The day before he was arrested, yes. * * * -14- Q. Miss, isn't it a fact that Mr. Corrothers asked you if he could have his attorney present at the time that he made a statement? A. At the time I'm sorry. I couldn't hear you. Q. That he would agree to make a statement, provided that his attorney was there? A. No, it's not. Q. Uh-huh? A. He told me, due to the seriousness of the case, he did not want to make a state- ment. Q. Due to the seriousness of the case, he did not want to make a statement? So, he did say something, other than no; was that right? A. Right. Thereafter, in a much more abbreviated fashion, the prosecu- tor, on redirect, merely clarified both the information contained on the police department form utilized by Walsh-Koehl and appel- lant's answers to the questions posed on it. The foregoing obviously demonstrates appellant invited the prosecutor's response to that line of inquiry on redirect examination. State v. Ferguson (1991), 71 Ohio App.3d 342; State v. Torrez (Aug. 24, 1995), Cuyahoga App. No. 67732, unreported. Moreover, the questions appellant asked Walsh-Koehl on cross- examination were designed to demonstrate his willingness to cooperate in the investigation. Under these circumstances, the prosecutor was within his prerogative to more accurately portray appellant's actions in this regard. See, e.g., State v. Sims -15- (1981), 3 Ohio App.3d 321; State v. White (Oct. 16, 1997), Cuyahoga App. No. 71188, unreported. Furthermore, in view of appellant's own questions of the witness, it can hardly be said any additional information gleaned by the prosecutor substantially prejudiced appellant. State v. Love (1988), 49 Ohio App.3d 88. Therefore, since the record does not demonstrate either that the prosecutor's questions constituted misconduct or that plain error occurred, appellant's second assignment of error is over- ruled. Appellant's third assignment of error states: DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Appellant argues his trial counsel was ineffective both for his failure to call as a witness Jackson's boyfriend and for his insistence that appellant take the stand in his own defense. A review of the record renders appellant's argument unpersuasive. The claim of ineffective assistance of counsel requires proof that counsel's performance has fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. The establishment of prejudice requires proof that there exists a reasonable probability that were it not for counsel's errors, the result of the trial would have been different. Id., paragraph three of the syllabus. -16- The burden is on defendant to prove ineffectiveness of counsel. State v. Smith (1981), 3 Ohio App.3d 115, cited with approval, State v. Smith (1985), 17 Ohio St.3d 98. Trial counsel is strongly presumed to have rendered adequate assistance. Id. Moreover, this court will not second-guess what could be considered to be a matter of trial strategy. Id. Appellant speculates that had his trial counsel subpoenaed Jackson's boyfriend, Jackson's credibility could have been impeached. The decision to call a witness during the course of trial is, however, a matter of trial strategy. State v. Hunt (1984), 20 Ohio App.3d 310. This court will not presume counsel was ineffective in failing to call as a witness the victim's boyfriend. Jackson admitted on direct examination that she had sexual relations with her boyfriend on the night before the incident. Moreover, in view of such a close relationship, it is likely that Jackson's boyfriend would have bolstered her credibil- ity rather than impeached it. Therefore, counsel was not deficient in this regard. Lakewood v. Town (1995), 106 Ohio App.3d 521; State v. Coulter (1992), 75 Ohio App.3d 219; State v. Mallard (June 30, 1994), Cuyahoga App. No. 65743, unreported. Appellant also asserts there was absolutely no testimonial benefit to be derived from his taking the stand in his own defense. During closing argument, however, defense counsel ex- plained that tactical decision to the jury as follows: From the very beginning to the end of the case, the burden is upon the Prosecutor. I need not present not (sic) even one witness but I did. I did for the purpose of you -17- getting an opportunity to evaluate and hear the second side. They always say there is (sic) two sides to every story. Sometimes I have found, in the practice of criminal law, that jurors say, well, why didn't we hear the other side? You heard the other side. You have the same opportunity to evaluate those witnesses as you will any other witness who testifies or testified in this case. Since the record thus reflects counsel's decision to call appellant to testify as a witness in his own behalf was a legiti- mate and considered tactical decision, counsel cannot be faulted for it. State v. Frazier (1991), 61 Ohio St.3d 247 at 254; State v. Ferguson, supra at 349; cf., Lakewood v. Town, supra. A review of the record in this case reveals trial counsel comported himself in a professional manner, was obviously prepared for trial, and was an effective advocate for his client. Appellant has failed to demonstrate counsel's performance fell below an objective standard of reasonableness; therefore, his third assignment of error also must be overruled. State v. Smith, supra; State v. Gearing, supra. Appellant's conviction is affirmed. -18- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. JAMES M. PORTER, P.J., AND TIMOTHY MCMONAGLE, J., CONCUR JUDGE KENNETH A. ROCCO 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 .