COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72394 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : EARNEST TISDEL, JR., : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JULY 23, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-330283 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Richard J. Bombik Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: C. Randolph Keller 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, P.J.: Appellant, Ernest Tisdel, Jr., appeals his conviction of rape alleging that the trial court erred when it permitted prejudicial opinion testimony from lay witnesses, and that the verdict was based on insufficient evidence and against the manifest weight of the evidence. Appellant was indicted on one count of rape and one count of kidnapping. In his first trial, the jury found the defendant not guilty of kidnapping and was unable to reach a verdict on the count of rape. A mistrial was declared as to this count. The second jury trial resulted in a guilty verdict on the count of rape. Gregory Williams, the father of the victim, Tonika Williams, testified that his daughter had a learning disability due to contracting spinal meningitis at birth. This learning disability required her to attend special education classes. During her junior year in high school, Tonika was involved in vocational training which resulted in a job training program with Meridia Hillcrest Hospital three days a week for three hours a day. Tonika also had a part-time job with a nearby McDonald's. Mr. Williams also stated that Tonika had limited social activity. Tonika Williams, 18, testified that at the time of trial she was a senior attending Brush High School in Lyndhurst. During her junior year in high school, a school bus would normally transfer her to and from her vocational training program at Meridia Hillcrest Hospital three times a week. On occasion, the school bus -3- would then take her to her job at McDonald's after leaving the hospital. Tonika went on to say that it was while receiving training at Hillcrest that she met the appellant who was employed in the laundry department. She recalled that she and appellant engaged in friendly conversations, that she informed appellant that she was seventeen years old and that at some point she had given Tisdel her phone number. On the day in question, October 31, 1995, Tonika arrived at Hillcrest shortly after 11:00 a.m.. Sometime in the early afternoon she was approached by appellant who offered to drive her to her job at McDonald's once she was done with her shift at the hospital. Appellant stated that McDonald's was on his way downtown and it would be no trouble. Tonika accepted his offer. Tonika went on to testify that at the end of her shift, approximately3:15 p.m., while waiting in front of the hospital to be picked up by appellant, she told another student that she would not be getting on the school bus because Tisdel was driving her to work. Tisdel then pulled up in his car, Tonika got in and they proceeded towards McDonald's. Upon arriving at McDonald's, the appellant pulled into the parking lot and Tonika directed him where to park. In lieu of following these directions, appellant exited the parking lot and proceeded across the street to another parking lot. It was in this parking lot, Tonika stated, that appellant drove to a remote section and parked. Appellant proceeded to play music, shut off -4- the engine and engage in small talk. This made Tonika nervous. It was at this point, to the shock and fright of Tonika, that appellant asked her to remove her clothes. Tisdel then grabbed her shoulders, pulled her on top of his lap and Tonika started to cry. As if in one motion, appellant pushed his seat backward and pulled down Tonika's pants and underwear. Tisdel then pulled his pants down, placed his penis in her vagina and continued with intercourse for approximately 10 minutes. Appellant stopped when Tonika told him she would end up pregnant, withdrew his penis and ejaculated. Appellant then drove her back to McDonald's and, as she was exiting the car, asked if she was upset. After the incident, Tonika stated that she completed her shift, went home and said nothing to her mother because she was afraid of how her mother would react. It was not until the next day, when Tonika confided in her friend Kevin Glaspie, that she told anyone. Two days later Tonika was approached by her teacher, Mr. Kabat, who inquired about the incident. Later that day she was taken to the hospital where a rape kit was performed and she spoke with police. Kevin Glaspie testified that he was in the same vocational program with Tonika at Hillcrest. On October 31, 1995, at approximately 3:15 p.m., while waiting for the school bus, he observed Tonika leave in an automobile driven by appellant. When he saw Tonika the following day, he noticed that she was acting a little out of the ordinary and questioned her as to why. At first he received no response, but later in the day she related the story -5- as above. She asked Kevin not to say anything to anyone, but he told Mr. Kabat, who is one of their teachers. John Kabat, employed as a special education teacher for the South Euclid-Lyndhurst Board of Education, testified that Tonika was one of his students. He explained that his pupils receive individual educational plans that he devises which are aimed at giving them daily living skills. As a result of her disability, Tonika, and others like her, possess very limited social skills and are uncomfortable in that environment. In clarifying himself, Kabat went on to say that Tonika, albeit age appropriate for her class in high school, was well below the social and mental development of her peers who were involved in the regular academic curriculum. Kabat further testified that on November 1, 1995, he was confronted by Kevin Glaspie who informed him of the trouble surrounding Tonika. He in turn contacted the police and the relevant school authorities. Upon confronting Tonika on November 2, 1995, she broke down and cried. Tonika had trouble expressing herself on the matter due to her limited intellect and she became depressed and on occasion would cry for no apparent reason. On cross-examination, Kabat testified that it was very easy for Tonika to become confused and disoriented. Kay May testified that she was employed as a forensic serologist in the trace evidence department of the Cuyahoga County Coroner's Office. May went on to say that upon examining and testing Tonika's clothes, a small area on her boxer shorts was -6- determined to be blood, which, after testing, turned out to match the blood type of Tonika. She also stated that during testing she did not detect any acid phosphates, which is indicative of the presence of spermatozoa. Detective Kevin Neitert testified that he is a member of the South Euclid Police Department and that he was involved in the investigation. He stated that during the initial interview Tonika knew her first name but did not know her last. On November 2, 1995, he took her to University Hospital and then recovered her pants and boxer shorts from her place of residence. After the testimony of Neitert, the prosecution rested. Defense counsel made a Crim.R. 29(A) motion which was denied. Defense then rested and made a Crim.R. 29(B) motion that was also denied. Appellant assigns two errors for our review. I. Appellant's first assignment of error states: I. TRIAL COURT ERRED WHEN IT PERMITTED PREJUDICIAL OPINION TESTIMONY FROM LAY WITNESSES. Appellant maintains that the testimony of Mr. Williams, the victim's father, constituted opinion testimony that should have been declared inadmissable. Appellant argues that the prejudicial effect of this testimony far outweighed its probative value, resulting in a violation of Evid.R. 701. Appellant further asserts that the testimony of John Kabat, testifying as a lay witness, also violated Evid.R. 701 because it amounted to expert opinion testimony given without the proper foundation. -7- Evid.R. 701 states: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. Only when both prongs of the test in Evid.R. 701 are met is opinion testimony properly admitted. Brentson v. Chappell (1990), 66 Ohio App.3d 83, 583 N.E.2d 434. Further, when the lay witness' opinion testimony is the result of experience and the observation and experience aids the factfinder, the witness' testimony is properly admitted under Evid.R. 701. State v. Norman (1982), 7 Ohio App.3d 17, 453 N.E.2d 1257. See, also, State v. Stevenson (Oct. 8, 1992), Cuyahoga App. No. 61074, unreported, State v. Matlock (Jan. 18, 1990), Cuyahoga App. No. 56473, unreported. In the instant case, appellant's attorneys failed to object to the disputed testimony at trial. As a result, a plain error standard is adopted for the purposes of review. State v. Campbell (1994), 69 Ohio St.3d 38, 40, 630 N.E.2d 339. The rule of plain error may only be invoked in rare instances and then only if the outcome of the trial would have clearly been otherwise. State v. Joseph (1995), 73 Ohio St.3d 450, 653 N.E.2d 285. Addressing the testimony of Mr. Williams, appellant contends that Williams improperly testified on matters concerning his daughter's educational terms and conditions. Specifically, appellant believes that Williams' comments classifying his daughter as learning disabled and a slow learner were improper. Moreover, appellant argues that Mr. Williams should not have been -8- allowed to testify concerning the following: the derivation of Tonika's disability, his daughter's special educational needs, Tonika's inability to make decisions as quickly as another child her age, and that Tonika's twin sister suffered none of the same ill effects. The testimony of Mr. Williams, whether classified as opinion or fact, clearly falls within his personal firsthand knowledge and was offered in order to aid the factfinder in assessing the testimony of Tonika and her credibility. The issues addressed by Mr. Williams were the result of raising Tonika and seeing her on a daily basis for seventeen years. Accordingly, Williams' testimony met both prongs of Evid.R. 701 and was properly admitted by the trial court. Kabat, appellant maintains, although certainly capable of being qualified as an expert witness given his educational and professional background, was not offered or established as such; and, as a result, his testimony must be considered that of a lay witness. As a lay witness, appellant maintains that Kabat offered opinion testimony that does not meet the necessary standards of Evid.R. 701. At trial, Kabat was permitted to testify on the following: the meaning of the term developmentally handicapped and how such an impediment impacted one's self-esteem, the capabilities of a developmentally handicapped person, the meaning and effect of below average intelligence and the fact that Tonika would qualify as a developmentally handicapped person with below average intelligence. -9- Moreover, Kabat was also allowed to opine on the cross-examination of Tonika and he concluded that she could have easily been confused by the onslaught of questions by the appellant's attorney. It is appellant's contention that all of this opinion testimony prejudiced him and, thus, should be declared inadmissible. Although Kabat was not established as an expert witness, his testimony, as offered, did not need to be given by an expert witness. Kabat is the special education teacher for the South Euclid-Lyndhurst Board of Education and, as a result, confronts children who are mentally handicapped and who have special educational needs on a daily basis. One of Kabat's students with whom he has regular contact is Tonika. As a result of this regular contact, his testimony meets both prongs of Evid.R. 701. Kabat's testimony concerning Tonika's educational shortcomings, requirements and social skills were all matters which were rationally based on his perceptions and aided the jury in determining the ultimate fact at issue. As a result, the trial court did not commit plain error in allowing the testimony of either Mr. Williams or Kabat and appellant's first assignment of error is overruled. II. II. THE VERDICT WAS BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BASED UPON INSUFFICIENT EVIDENCE. Appellant argues that, based upon the totality of the evidence, no reasonable court could have found him guilty of rape. In State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, 547, the Supreme Court reaffirmed that the proper standard -10- under which a court of should consider questions of manifest weight is set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, where the court stated: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in 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. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 102 S.Ct. 2211. Further, in reviewing under the above-mentioned standard, the court should take into account the following factors: (1) awareness that even a reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) the extent to which a witness may have a personal interest to advance or defend by his testimony; (8) the extent to which the evidence is vague, uncertain, conflicting or fragmentary. State v. Clark (1995), 101 Ohio App.3d 389, 408, 655 N.E.2d 795. Moreover, this court may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt. State v. Hawkins (1993), 66 Ohio St.3d 339, 344, 612 N.E.2d 1227, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33, 583 N.E.2d 576. It is essential that a court on review be aware that the weight of the evidence and the credibility of the witnesses are issues that are primarily left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476, 620 N.E.2d 50; see, also, State v. DeHass(1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could -11- reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132; see, also, State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492; State v. Coulter (1992), 75 Ohio App.3d 219, 232, 598 N.E.2d 1324. The Supreme Court of Ohio in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, set forth the standard of review to be applied by an appellate court when examining a claim of insufficient evidence when it stated: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing 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. See, also, State v. Waddy (1992), 63 Ohio St.3d 424. Here the record reflects that the court properly instructed the jury and after deliberation the jury convicted appellant. The central issue then presented is was the jury reasonable in reaching this conclusion. After a careful review of the record, assessing the credibility of all of the testimony and considering all reasonable inferences therefrom, we cannot conclude that the jury created a manifest miscarriage of justice in convicting Tisdel of rape. There was substantial evidence from which the jury could conclude that appellant purposely and without consent engaged in sexual intercourse with Tonika Williams. The detailed testimony of the -12- victim, which the jury was free to believe in its entirety, was sufficient to convict. Accordingly, appellant's second assignment of error is overruled. Judgment affirmed. -13- 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. JOSEPH J. NAHRA PRESIDING JUDGE KARPINSKI, J., and MICHAEL J. CORRIGAN, J., CONCUR. 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 .