COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72372 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : CHARLES HOOD : OPINION : Defendant-Appellant : Date of Announcement of Decision: JUNE 18, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-345008 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD M. WALSH, Assistant Prosecuting Attorney FERNANDO MACK, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: MYRON P. WATSON, ESQ. 310 Lakeside Avenue, N.W. 595 Courthouse Square Bldg. Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Charles Hood appeals from his convictions following a jury trial on two counts of rape (R.C. 2907.02), one count of kidnapping (R.C. 2905.01) and one count of gross sexual imposition (R.C. 2907.05). Defendant contends that the trial court erred: in allowing the State to exercise a peremptory challenge to excuse an African-American male juror on the basis of race; in not declaring a mistrial for improper prosecutorial conduct; and in preventing the defense's use of medical report statements by misapplying the rape shield law. We find no error and affirm. Defendant was charged with sexual crimes arising out of his relationship with Shaquanda Stewart, a sixteen-year-old, ninth grader whom defendant had dated for a year and a half. Defendant and Shaquanda had a sexual relationship for a one month period prior to breaking up in October 1996. In late October 1996, defendant approached her on the street and requested that they get back together. She refused. According to her testimony, on Tuesday, November 5, 1996 at about 6:30 p.m., Shaquanda was walking to the neighborhood store with some friends when defendant grabbed her, put his arm around her and told her to go with him. She told him to get off of her, but he refused. He forced her to walk to the rear door of his nearby home, picked her up and carried her upstairs against her will. He threw her onto his bed, removed her clothing, and had sexual intercourse twice with her against her will. He also placed -3- his mouth on her right breast without her consent. He asked for her panties and bra for a souvenir. Shaquanda left defendant's home and walked to her own home nearby. She changed and walked to her friend Marleese's home and told her what defendant had done. She then talked to her mother on the telephone and told her Charles did it to me. Her mother immediately drove to the scene and Shaquanda took her to confront defendant across the street. A confrontation occurred and defendant denied raping Shaquanda. Mother and daughter then drove to the Fourth District Police Station and made a report. She was then examined at St. Luke's Hospital. Shaquanda's aunt, Camilla Randall, testified to seeing her niece upon her leaving the rear door of defendant's home on the evening in question. She described her eyes as teary and red, as if she had been crying. She appeared to be in a daze and withdrawn. The aunt asked Shaquanda what was wrong, but received no reply. She observed a man walking behind her, but could not see his face. Upon entering her home, Shaquanda went right to her bedroom and changed clothes. Helen Grant, Shaquanda's mother, talked to her daughter on the telephone shortly after the rape. She testified her daughter did not sound like herself, she had been crying. After hearing what had happened to her daughter, she drove over to the neighborhood. She observed Shaquanda crying. She immediately confronted defendant who denied raping her daughter. She took her daughter to the police station and later to the hospital. -4- Patrolman McClain responded to the scene and assisted a detective from the Scientific Investigation Unit in removing evidence from defendant's bedroom. He also picked up the rape kit from St. Luke's Hospital which was placed in evidence. He also interviewed the victim at the hospital. He described her as clutching to her mother, crying and very emotionally upset. Det. Bruce Taylor responded to the scene and took photographs of the scene. He also seized bed clothing and returned it to the police lab. Forensic Scientist Tina Wolff examined the rape kit and other physical evidence in the case. The vaginal swabs were positive for semen. Sperm was found on the vaginal smears. Seminal fluid was found in the panties of the victim. A sheet and pillow case from defendant's bed also contained seminal fluid. Defendant testified on his own behalf. He had prior convictions for aggravated assault and drug trafficking. His testimony corroborated the testimony of the victim, but he maintained the intercourse was consensual. Following defendant's convictions aforesaid, this timely appeal was pursued. We will address defendant's assignments of error in the order presented. I. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO USE A PEREMPTORY CHALLENGE TO EXCUSE AN AFRICAN-AMERICAN MALE JUROR ON THE BASIS OF RACE WHEN THE PROSECUTOR WAS UNABLE TO PROVIDE A VALID RACE NEUTRAL REASON FOR HIS CHALLENGE. -5- Defendant contends that during the course of jury voir dire, the prosecution used a peremptory challenge to remove an African- American male juror from the panel on the basis of race, i.e., an Afro-American male juror was excused because of a perceived stereotype that he would identify with an African-American defendant. Defendant alleges that the African-American prosecutor was unable to offer a race neutral reason for the challenge, and there was no point of inquiry with reference to the prosecutor's concerns. It is well settled that a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, so long as that reason is related to the prosecutor's view concerning the outcome of the case to be tried. The Equal Protection Clause of the Fourteenth Amendment forbids the prosecutor to challenge potential jurors on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the prosecution's case against a black defendant. Batson v. Kentucky (1986), 476 U.S. 79, 89. The Supreme Court recently summarized the three-prong Batson test in Hicks v. Westinghouse Materials Co. (1997), 78 Ohio St.3d 95, 98, as follows: The United States Supreme Court set forth in Batson the test to be used in determining whether a peremptory strike is racially motivated. First, a party opposing a peremptory challenge must demonstrate a prima- facie case of racial discrimination in the use of the strike. Id. at 96, 106 S.Ct. at 1723, 90 L.E.2d at 87. To establish a prima-facie case, a litigant must show he or she is a member of a cognizable racial group and that -6- the peremptory challenge will remove a member of the litigant's race from the venire. The peremptory-challenge opponent is entitled to rely on the fact that the strike is an inherently discriminating device, permitting ` those to discriminate who are of a mind to discriminate.' State v. Hernandez (1992), 63 Ohio St.3d 577, 582, 589 N.E.2d 1310, 1313, certiorari denied (1992), 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d 206. The litigant must then show an inference or inferences of racial discrimination by the striking party. The trial court should consider all relevant circumstances in determining whether a prima- facie case exists, including statements by counsel exercising the peremptory challenge, counsel's questions during voir dire, and whether a pattern of strikes against minority venire members is present. See Batson at 96- 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Assuming a prima-facie case exists, the striking party must then articulate a race- neutral explanation related to the particular case to be tried. Id. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 88. A simple affirmation of general good faith will not suffice. However, the explanation need not rise to the level justifying exercise of a challenge for cause. Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. The critical issue is whether discriminatory intent is inherent in counsel's explanation for use of the strike; intent is present if the explanation is merely a pretext for exclusion on the basis of race. Hernandez v. New York (1991), 500 U.S. 352, 363, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395, 408. Last, the trial court must determine whether the party opposing the peremptory strike has proved purposeful discrimination. Purkett v. Elem (1995), 514 U.S. , , 115 S.Ct. 1769, 1770, 131 L.Ed.2d 834, 839. It is at this stage that the persuasiveness, and credibility, of the justification offered by the striking party becomes relevant. Id. at , 115 S.Ct. at 1771, 131 L.Ed.2d at 839. The critical question, which the trial judge must resolve, is whether counsel's race- neutral explanation should be believed. Hernandez v. New York, 500 U.S. at 365, 111 S.Ct. at 1869, 114 L.Ed.2d at 409. -7- In the instant case, the defense sought a mistrial based on the fact that the State removed the only black male juror, there being only two other black female jurors on the entire panel. When pressed for an explanation as to the grounds for the peremptory challenge, the State explained that the excused juror made a face when the prosecutor asked another prospective juror about the prior consensual sexual relationship between defendant and the victim. The State also noted that the attention span of the excused juror was very short. He was up in age and they wanted someone who would be able to listen to all the evidence rather than be motivated by pure emotion. We find on this record that there was no pattern of strikes which suggested a racial discriminatory animus toward the excused juror. Since the excused juror was the only black male on the venire, it was impossible to show a pattern to exclude other black males. See Hicks, supra at 100: Adams was the first, and only, African American peremptorily struck from the jury. There was no `pattern of strikes' against African American jurors, nor did appellee's counsel make any statements during voir dire that were reflective of a discriminatory motive. The same may be said here. The record made it clear that there were two black females on the panel and no attempt was made to challenge them. We turn to whether the State offered a bonafide race neutral basis for dismissing the juror. It was the African-American assistant prosecutor who suggested the peremptory challenge in the instant case. The African-American male juror's facial expression -8- and demeanor upon hearing the inquiry as to the consensual sex question suggested to that prosecutor that this question posed difficulty for the prospective juror and that he could not be impartial to the prosecution. Additionally, the prosecutor noted that this same juror's attention span was limited as he was aloof while questions were posed to the other jurors. Consequently, the prosecutor favored having a juror on the panel with the ability to listen to all of the evidence. We find, as did the trial court, that these proffered explanations were race neutral and related to the case to be tried. See Hicks, supra at 102 as follows: We believe the trial court conducted a sufficient inquiry. Nothing in the exchange leading to the trial judge's acceptance of the Federal Court rule can reasonably persuade us that the trial court was improperly applying Batson. The judge required counsel for both parties to explain their positions. He stated his skepticism about the presence of racial motive by saying that probably it should be that the choice you're making is not based on racial (was interrupted by counsel), and then ultimately granted the peremptory challenge. Review of a Batson claim largely hinges on issues of credibility. Accordingly, we ordinarily defer to the findings of the trial court. See Batson at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, fn. 21. Whether a party intended to racially discriminate in challenging potential jurors is a question of fact and in the absence of clear error, we will not reverse the trial court's determination. Hernandez v. New York, 500 U.S. at 369, 111 S.Ct. at 1871, 114 L.Ed.2d at 412; State v. Hernandez, 63 Ohio St.3d at 583, 589 N.E.2d at 1314. Trial judges, in supervising voir dire, are best equipped to resolve discrimination claims in jury selection, because those issues turn largely on evaluations of credibility. See Batson at -9- 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, fn. 21. Once the prosecutor offers a race neutral basis for his exercise of peremptory challenges, the trial court then has the duty to determine if the defendant has established purposeful discrimination. Hernandez v. New York (1991), 500 U.S. 352, 363. The trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal. Id. at 364. In the case at bar, the trial court, after appropriate inquiry, rejected the notion that the prosecutor's challenge rested on perceived stereotypical assumptions or the intention of excluding African-American male jurors. Nothing in the prosecutor's explanation showed that he chose to exclude jurors on the basis of race. As the Court noted in Hernandez: In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral-explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial judge's province. Id. at 365. Here, the trial court chose to believe the prosecutor in large part because of his credibility with the Court and his demeanor during the inquiry in chambers. This is illustrated in the following excerpt: -10- THE COURT: All right. Well, I'm going to allow the excuse to stand. I want the record to show that Mr. Fernando Mack, who is well known to this Court, is a black person, highly skilled and he's advanced this argument and he's articulated this reason and he's an officer of the Court and a honorable individual. (Tr. 168-169). Thus, it is abundantly clear that the defendant failed to make a prima facie case of purposeful discrimination, the prosecutor provided a bonafide race neutral explanation for the challenge, and the court's determination was not clearly erroneous. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED WHEN IT DID NOT DECLARE A MISTRIAL WHEN THE PROSECUTOR ASKED EGREGIOUSLY IMPROPER QUESTIONS AND MADE IMPROPER COMMENTS TO THE JURY. It is well settled that the conduct of a prosecuting attorney at trial shall not be grounds for reversible error unless the conduct deprives the defendant of a fair trial. State v. Phillips (1995), 74 Ohio St.3d 72, 90; State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. A defendant is only entitled to a new trial when a prosecutor asks improper questions or makes improper remarks which substantially prejudiced defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14. In analyzing whether the defendant was deprived of a fair trial, an appellate court must determine whether, absent the improper questions or remarks, the jury would have found the defendant guilty. State v. Mauer (1984), 15 Ohio St.3d 239, 266. In the present case, a review of the trial court record in its entirety fails to show that any of the allegedly improper -11- statements made by the prosecutor deprived defendant of a fair trial. Defendant claims that the prosecutor's inquiry regarding the victim's name and gender in the defendant's prior conviction for aggravated assault somehow deprived him of a fair trial. The prosecutor also asked the defendant if he was a drug dealer after reference to the prior drug trafficking offense. The defendant's objection to this line of questioning was not sustained, but the prosecutor was precluded by the trial court from getting into the details of the prior offense and the trial court instructed the jury that the limited purpose of this evidence was to test the defendant's credibility. (Tr. 467-473). We find no unfair prejudice from this line of questioning. The jury is presumed to follow the curative instructions given by the trial court. State v. Gardner (1995), 74 Ohio St.3d 49, 59; State v. Loza (1994), 71 Ohio St.3d 61, 75. The prosecutor continued to question the defendant with respect to the sentence he received for the aggravated assault and drug trafficking convictions, and the location of his incarceration. The trial court correctly overruled the defendant's objection, as there is no authority that precludes the prosecutor from eliciting information with respect to the defendant's punishment for his prior convictions, and defendant cites no authority for same. It has long been established that under Evid.R. 609 a defendant's credibility may be attacked, after he testified, by evidence of the defendant's prior convictions. The trial court has broad discretion in determining the extent to which -12- testimony will be admitted under Evid.R 609 including allowing questions about the name of the crime, the time of conviction and the sentence imposed. State v. Amburgey (1987), 33 Ohio St.3d 115, 116; State v. Wright (1990), 48 Ohio St.3d 5, 7. The defendant also contends that the prosecutor's characterization of the defendant as a drug dealer based on his prior conviction of drug trafficking somehow substantially prejudiced his right to a fair trial. This is fair commentary on the evidence. Since defendant was convicted of drug trafficking it is reasonably inferred that he was dealing in drugs. Finally, it is suggested that the prosecutor's comment during closing argument that Peanut, defendant's brother, did not testify, was improper and deprived the defendant of a fair trial. Comments that a witness other than the accused did not testify are not improper. State v. Davie (1997), 80 Ohio St.3d 311, 331. The fact that one of the parties fails to call a witness who has some knowledge of the matter under investigation may be commented upon. State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 193. Also, statements made during closing argument will not result in reversal unless the defendant's right to a fair trial was adversely affected. State v. Keenan (1993), 66 Ohio St.3d 402, 405; State v. Hill (1977), 52 Ohio App.2d 393, 397. We find that the prosecution'scomment that a defense witness did not testify would not have been determinative of the outcome of the case. The trial judge sustained objections to the prosecutor's comments and instructed the jury to disregard the comments. (Tr. 613-14). As -13- stated above, the jury is presumed to follow the court's instructions, including curative instructions. State v. Garner, supra; State v. Loza, supra. Instead, it was the victim's testimony, the corroborating testimony from the prosecution's witnesses, coupled with the defendant's own questionable testimony that led to his conviction. We find that the jury would still have found defendant guilty beyond a reasonable doubt, even if the prosecutor's statements are disregarded. Assignment of Error II is overruled. -14- III. THE APPLICATION OF THE RAPE SHIELD LAW VIOLATED THE DUE PROCESS RIGHTS OF THE APPELLANT WHEN THE DEFENSE WAS PREVENTED TO USE STATEMENTS FROM THE MEDICAL REPORT. Defendant claims that the trial court erred in not allowing him to use information contained in the victim's medical records regarding her past sexual history, i.e., she was sexually active since age twelve. These matters were raised in limine prior to trial. (Tr. 5). Specifically, it is argued that the court should have permitted defendant, during cross-examination of the victim, to expose her past. Further, the defendant sought the use of statements in the medical records revealing that the victim was sexually active with someone other than the defendant just two days prior to the rape. Ohio's Rape Shield Statute is R.C. 2907.02(D), which states as follows: Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. The Supreme Court in State v. Williams (1986), 21 Ohio St.3d 33, 34, citing State v. Gardner (1979), 59 Ohio St.2d 14, outlined the concerns behind the rape shield law: First, by guarding the complainant's sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than -15- the defendant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process. In the instant case, the defendant's purpose in revealing this information in the presence of the jurors was to impeach the credibility of the victim. The rape shield statute expressly forbids the defendant from cross-examining the victim with reference to her sexual history since age twelve, and even her sexual activity two days prior to the rape, as neither involved the defendant as a participant. There is no question as to the origin of semen in this case as defendant admitted he had intercourse consensually; and this information is not material to a fact at issue in this case. It is within the trial courts sound discretion to determine the relevancy of evidence and to apply the rape shield law to best meet the purpose behind the statute. State v. Miller (1989), 63 Ohio App.3d 479, 483. Here, the trial court used sound discretion in preventing information that was in direct contravention of the rape shield law. The victim's sexual relations since age twelve and her sexual encounter with another two days prior to the rape are unduly inflammatory and had no probative value. We will not disturb the trial court's discretion on these rulings. Assignment of Error III is overruled. Judgment affirmed. -16- 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. NAHRA, J., and KARPINSKI, J., CONCUR. JAMES M. PORTER 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 .