COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72635 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION GLENN DARLING : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : JUNE 18, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-345364 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor TIMOTHY G. DOBECK, ESQ. Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 C. RANDOLPH KELLER, ESQ. Union Steel Screw Bldg. 1677 East 40th Street Cleveland, OH 44103 -2- JOHN T. PATTON, J.: Defendant-appellant Glenn Darling appeals the jury verdict finding him guilty of rape in violation of R.C. 2907.02 and gross sexual imposition in violation of 2907.03. On appeal, defendant claims the evidence does not support the guilty verdict. The first witness to testify was the victim. She stated she had known defendant before the present incident because he had lived with his girlfriend in the apartment next door. On November 13, 1996, victim testified she was in the apartment in the mid- morning when defendant and another man stopped in her apartment to get some coffee. She said this was not unusual because these men were working as painters in the building and stopped by occasionally to get coffee. At this time, victim asked the other man to get her some beer but he refused so defendant agreed to get the beer for her. Defendant appeared approximately two hours later with the beer. Thereinafter, victim stated she consumed half a can of beer. On his third visit to victim's apartment, victim stated he came in through the back door unannounced. Victim testified he approached her and began making comments about her chest and legs. He then remarked that he wanted some pussy. Defendant grabbed her while she was on the couch and began to wrestle with her. Subsequently, he placed his hand under her blouse and grabbed her breast. Victim stated she kept telling him to stop. Victim testified further that defendant then pulled her down to the floor, grabbed her leg, folded it towards her chest, pulled -3- her clothes down, and unzipped and loosened his pants. She said he inserted his penis into her vagina and that she was immobilized because her knees were pushed up to her chest. Victim continued that defendant asked her if it was it good and did I get mine. At the conclusion of the incident, defendant asked the victim if she was on birth control and stated don't do the O.J. on me. After defendant left the apartment, victim testified she started crying and called her sister. She then proceeded to the hospital with her sister where she was examined. She also notified the security at her apartment of the incident. Victim's sister testified and corroborated the fact that the victim called her and stated she had been raped. The sister stated she accompanied victim to the hospital. Victim's fiancee also testified and stated he visited victim in the emergency room and was really upset and incoherent, really. Defendant's co-worker testified that he was working with defendant on the day in question and stated he went to victim's apartment with defendant around noon, lunchtime. He stated victim asked him to get her some beer but he refused because he had a bad leg but defendant left to get her beer. He stated further that during the afternoon he left the paint crew for no longer than five minutes and returned with a cup of coffee. An expert from the Cleveland Police Department, Scientific Investigation Unit, testified next that she examined the rape kit administered at the hospital and noticed on one of the vaginal smears there was the presence of sperm but that it was insufficient -4- for conducting a DNA test. She also testified it is possible the sperm could have been present for four or five days. Lastly, defendant's boss testified. He stated defendant was the only person able to operate a sprayer. That if the sprayer is not being used the whole crew has to stop working. Plus, he said after the incident occurred, the victim's friend asked him if he had any insurance and that the whole matter could be taken care of immediately. The boss' understanding of this meeting was [t]hat she wanted money, that if I gave her enough money she would eliminate whatever the problem was. At the conclusion of the testimony, the state gave its closing argument but defense counsel waived his closing argument. On appeal, defendant presents four assignments of error, the first of which states as follows: DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY WAIVED CLOSING ARGUMENT. Defendant argues he was denied effective assistance of counsel because defense counsel waived closing argument. He claims because of the flimsy evidence upon which the state built its case, the guidance and insight of defense counsel during a closing argument would demonstrate his innocence. Defendant also maintains he has met the two prong test established for determining ineffective assistance of counsel. Strickland v. Washington (1984), 466 U.S. 668, at syllabus 5. First, by not making a closing argument, defense counsel did not function as counsel guaranteed by the Sixth Amendment especially in light of the victim's lack of credibility -5- and lack of objective scientific evidence. Second, the adversarial process was undermined because defendant relied on defense counsel who failed to give an argument at the most crucial juncture of a trial. Additionally, since the jury sent back a note indicating it was deadlocked, there is a reasonable probability that if defendant had received effective assistance, the unjust jury verdict would not have resulted. To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. Id. Under the performance inquiry, this court must determine, considering all of the circumstances, whether counsel's representation fell below an objective standard of reasonableness. State v. Campbell (1994), 69 Ohio St.3d 38, 43, quoting Strickland at 688. Trial counsel is entitled to a strong presumption that his or her conduct falls within a wide range of reasonable assistance. Id. The prejudice inquiry involves a determination of whether there is a reasonable probability that, absent the errors, the fact finder would have acquitted the defendant. Id. at 694. In State v. Burke (1995), 73 Ohio St.3d 399, 405, the court was confronted with the issue of defense counsel waiving closing argument and a challenge regarding whether the waiver amounted to ineffective assistance. The court held the waiver of closing argument may have simply been a tactical decision made by defense counsel to prevent the state from splitting closing argument and staging a strong rebuttal. Id. Consequently, the court found the waiving of the closing argument did not render the defendant -6- ineffective assistance of counsel. See also, Lowe v. State (1989), 799 S.W.2d 334, 337. Applying the foregoing analysis to the present case, we likewise find defendant did not prove his claim of ineffective assistance of counsel. Defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT- APPELLANT'S MOTION FOR MISTRIAL AS A RESULT OF THE GIVING OF A HOWARD INSTRUCTION. Defendant argues his motion for mistrial should have been granted because the trial court improperly instructed the jury. The jury sent the trial court a message indicating it was deadlocked and needed help. The trial court then gave the instruction set forth in State v. Howard (1989), 42 Ohio St.3d 18, which is given to juries who are deadlocked on whether to convict or acquit. Defendant complains the trial court never instructed the jury they were not required to reach a verdict. A review of the record indicates the trial court received a message from the jury that it was deadlocked. Consequently, the trial court read the Howard charge to the jury, verbatim. Defense counsel objected to the giving of this charge and requested a mistrial. The trial court denied defendant's motion for a mistrial. There is no evidence of coercion as a result of giving the Howard charge and there is ample case law indicating this charge to the jury is proper. State v. Rowe (1993), 92 Ohio App.3d 652, -7- 675, and State v. Martens (1993), 90 Ohio App.3d 338, 343. As a result, the trial court did not abuse its discretion in denying defendant's motion for a mistrial and defendant's second assignment of error is overruled. State v. Simmons (1989), 61 Ohio App.3d 514. Defendant's third assignment of error states as follows: THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW DEFENDANT- APPELLANT AN OPPORTUNITY TO CROSS-EXAMINE THE ALLEGED VICTIM WITH RESPECT TO HER PRIOR CRIMINAL CONVICTIONS FOR CRIMES OF DISHONESTY. Defendant argues the trial court made no findings whatsoever as to the balancing test between prejudicial effect and probative value in Evid.R. 609(A)(2), when faced with whether to admit evidence of the alleged victim's prior criminal conviction. Defendant claims due to the trial court's failure to do the above analysis, he was precluded from admitting the one additional piece of evidence necessary for an acquittal. State v. Beavers (Oct. 24, 1996), Cuyahoga App. No. 69963, unreported. Evid.R. (A)(2) states a prior criminal conviction is admissible to impeach the accused if the crime was punishable by death or imprisonment in excess of one year and if the probative value of the evidence outweighs the danger of unfair prejudice. However, this rule is qualified by Evid.R. 609(B) which imposes a time limit and states: Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release from the confinement * * * whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction -8- supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. The trial court has broad discretion in determining whether prior convictions will be admitted into testimony pursuant to Evid.R. 609, and the extent to which such testimony will be used. State v. Brown (1993), 85 Ohio App.3d 716, 726. In the present case, before the trial commenced the parties discussed the admissibility of victim's prior conviction. The state claimed the conviction was eighteen years earlier and was therefore inadmissible pursuant to Evid.R. 609(B). Next, defendant contended the conviction went to the credibility and character of the victim so evidence of the conviction should be admitted. The trial court heard both arguments and stated there is an admissibility problem because the offense was eighteen years ago. Then the trial court stated a ruling would be made if the issue arose during cross-examination. During cross-examination, victim was asked about her prior criminal history. The state objected and the trial court sustained the objection. The conviction occurred eighteen years before the present case. Both the state and defendant were given an opportunity to argue the merits of admitting the prior conviction. The trial court stated I've got a problem because of the time. Eighteen years, it's an awfully long time. The trial court heard both -9- arguments, stated the period of time was a problem, and denied admitting evidence of the prior conviction during cross- examination. From these facts, it is clear the trial court heard and considered both parties' arguments but determined the prejudicial effect outweighed the probative value because of the long period of time since the conviction. Defendant cites Beaversfor the proposition that a trial court has to state on the record what factors it considered in deciding the admissibility of prior convictions. Beavers was charged with carrying a concealed weapon and having a weapon while under disability plus a felony violence specification with each count for a prior sexual battery conviction. At trial, prior to voir dire, Beavers attempted to exclude his eleven year old sexual battery conviction. The trial court decided to allow cross-examination holding [t]his is the same individual, this is the same line, so to speak. Defendant appealed and we affirmed the trial court's ruling because the error in allowing such cross-examination was harmless. We held [b]ecause the court failed to specifically determine that the probative value of the eleven-year-old conviction outweighed its prejudicial effect, the trial court erred in permitting the questioning of Beavers concerning his prior conviction. In Beavers,the court held the probative value analysis stated in Evid.R. 609(B) must be specifically determined when the probative value of admitting the conviction outweighs its prejudicial effect. This reasoning is not applicable to the -10- present case because the trial court determined the prior conviction was inadmissible so it never had to state the probative value outweighed the prejudicial effect. Defendant has misconstrued the application of Beavers to this case. Moreover, the prior conviction in Beavers was only one year past the ten-year time limit mandated in Evid.R. 609(B) while in the present case the prior conviction was eight years past the limit. For these reason, we hold the trial court did not abuse its discretion in determining victim's prior conviction was inadmissible. Accordingly, defendant's third assignment of error is overruled. Defendant's fourth assignment of error states as follows: THE EVIDENCE WAS INSUFFICIENT TO CONVICT DEFENDANT- APPELLANT AND THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant argues the evidence was insufficient because the state presented no scientific or objective evidence that he vaginally penetrated or sexually assaulted victim. He also claims the verdict was against the manifest weight of the evidence because it was obvious from the record there was minimal evidence against him and it centered solely on victim's testimony. 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. State v. O'Neill (1995), 107 Ohio -11- App.3d 557, 560, following Jackson v. Virginia (1979), 443 U.S. 307. It is well-settled law that a reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, at paragraph two of the syllabus. Moreover, in reviewing a claim that a conviction is against the manifest weight of the evidence, said conviction cannot be reversed unless it is obvious that 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. State v. Garrow (1995), 103 Ohio App.3d 368, 370-371. In the present case, defendant was charged with rape and gross sexual conduct. To be convicted of rape, the state must show; defendant purposely engaged victim in sexual conduct, by compelling her to do so through the use of force or threat of force. To be convicted of gross sexual conduct, the state must show; defendant engaged in sexual contact with the victim, who is not his spouse, by compelling such person to submit by force or threat of force. Victim testified defendant came through her back door, uninvited, and approached her. He then started making comments about her legs and chest and stated he wanted to get some pussy. Defendant than attacked victim. He pulled her pants down and pinned her knees against her chest. Next, he inserted his penis in -12- her vagina. Victim stated she resisted his advances and told him no. The fact that the victim was upset after this incident was corroborated by her friend, who took her to the hospital. Additionally, even though there was no evidence of physical trauma, the examining doctor stated this is not indicative of whether or not non-consensual sex occurred. Also, a single sperm was found in victim but the testimony was inconclusive as to whether defendant ejaculated in victim or not. Questions of weight and credibility lie exclusively within the province of the trier of fact, and a reviewing court will not interfere in such determinations. State v. Coker (1984), 15 Ohio App.3d 97. An appellate court may not substitute its own judgment for that of the finder of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. The question of whether defendant committed rape and gross sexual imposition relied predominately on the testimony of victim. Through her testimony there was sufficient evidence a trier of fact could have found all the elements of the crimes proven beyond a reasonable doubt. Although the scientific evidence was not very strong, defendant's friend and fiancee corroborated that victim was upset immediately following her encounter with defendant. Based on victim's testimony and that of her friend and fiancee, we believe the trier of fact did not lose its way and create a manifest miscarriage of justice. Thus, defendant's fourth assignment of error is overruled. -13- Judgment affirmed. -14- 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. MICHAEL J. CORRIGAN, J., CONCURS. TERRENCE O'DONNELL, P.J. CONCURS IN JUDGMENT ONLY. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .