COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73007 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND ISKANDAR ABI-ABDALLAH, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-348935 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES LORI A. ACOSTA Cuyahoga County Prosecutor ACOSTA & LAFFIN 755 Broadway Avenue GEORGE J. SADD Suite D Assistant Prosecuting Attorney Bedford, Ohio 44146 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant, Iskandar Abi-Abdallah, appeals from the judgment of the court which, after a trial by jury, found defendant guilty of one count of gross sexual imposition. On appeal, defendant raises six assignments of error. Finding no merit to appellant's argument, we affirm the judgment of the trial court. The relevant facts follow. Defendant was a manager for two Subway fast-food restaurants, one in Bedford and one in Oakwood. He was originally charged with four counts of gross sexual imposition. The indictments alleged that defendant forced himself upon three female employees under the age of 18. The first two indictments identified a seventeen-year- old woman ( Carrie ) as the victim; on counts three and four the named victims were two other young women ( Cheryl and Maria ). Prior to trial the trial court dismissed counts two and four. Of the remaining two, the jury found defendant not guilty on count four, but guilty on count one. The incident which formed the basis of count one occurred at the Subway restaurant in Bedford. Carrie, a Subway employee, testified that defendant, who was the manager, came up behind her and began to rub her back. After Carrie told him to stop, defendant pushed her down on a table and stated he was going to give her a massage. Carrie continued to tell him to stop and unsuccessfully tried to push him away. She continued to struggle, but defendant held her down on the table. He then proceeded to rub her breasts and pull her shirt up, exposing her breasts. After -3- defendant tried, unsuccessfully, to place his mouth on her breasts, Carrie kicked him in the leg and ran into the bathroom, locking herself inside. After waiting ten minutes in the bathroom, Carrie left the store when she heard defendant was busy with a phone call. She told her friend Kristen but did not tell her parents because she was embarrassed. The second incident between defendant and Carrie formed the basis for the second count of gross sexual imposition. Regarding this incident, Carrie testified that, while the two were working at the Oakwood restaurant, defendant grabbed Carrie by the throat, pinned her against the wall, and told her he could rape her. After defense counsel argued that there was no touching of any erogenous zone, the trial court granted defendant's motion for acquittal on this count. Count three involved contact with Cheryl, also a subway employee under the age of eighteen. Cheryl related that defendant would often ask the female employees when they were going to have sex with him. Cheryl remembered two incidents when defendant forced himself upon her. On one occasion, defendant grabbed her by the face and kissed her on the lips. Another time, defendant grabbed her shirt and placed a ball down her shirt, touching her breasts with his hands. During this incident, Cheryl pulled away, causing defendant to break her necklace. The fourth count of gross sexual imposition involved Maria, a friend of Carrie and Cheryl. She testified that on one visit to the Subway restaurant in Oakwood, defendant approached her and -4- asked for a hug and then proceeded to grab Maria by the face and kiss her on the mouth. After defense counsel argued that kissing is not sufficient to support a charge of gross sexual imposition, the court dismissed this count of the indictment. Counts one and three were submitted to the jury, which found defendant not guilty on count three and guilty of only count one. Defendant timely appealed and raises six assignments of error. The first states as follows: I. THE DEFENDANT/APPELLANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL BY REASON OF IMPROPER CONDUCT AND COMMENTS BY THE PROSECUTING ATTORNEY. In this assignment of error, defendant argues that he was denied a fair trial because of remarks made by the state in opening statements to the jury. Specifically, the state referred to defendant as a predator and, in the opening statement, stated that defendant preyed on them sexually (Tr. 21), and in closing stated, [h]e's gotten away with it once *** he won't get away with it again. This assignment is without merit. Generally, a defendant is denied his right to a fair trial because of prosecutorial misconduct if the remarks by the prosecutor were improper and if these remarks prejudicially affected the substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160; State v. Saunders (1994), 98 Ohio App.3d 355. Because defendant did not object to these remarks, however, any error is waived unless it amounts to plain error. State v. Underwood (1983), 3 Ohio St.3d 12. To constitute plain error, it must appear on the face of the record that the error was committed, -5- and, but for the error, the result of the trial clearly would have been different. State v. Bock (1984), 16 Ohio App.3d 146. In the case at bar, the comments by the prosecutor do not amount to plain error. First, it must be noted that counsel is entitled to wide latitude in making arguments. State v. Woodards (1966), 6 Ohio St.2d 14. We recognize that the word predator has legal significance because the law deems certain repeat sexual offenders as sexual predators. The comments by the prosecutor were not per se erroneous, however, in their non-legal sense. More importantly, even if these comments had not been made, defendant has not demonstrated that the result would have been different. The verdict was properly supported by the evidence of three women that testified he pursued them against their wishes. The jury heard the victim herself explain in detail the unwanted sexual advances by defendant. Significantly, the fact that the jury acquitted defendant on the third count demonstrated the jury was not unduly biased by the prosecutor and capable of making the necessary legal distinctions. Defendant's first assignment is overruled. The second assignment states as follows: II. THE DEFENDANT/APPELLANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL BY REASON OF IMPROPER CONDUCT AND COMMENTS BY THE JUDGE. In this assignment, defendant argues that he was denied a fair trial because the trial judge called defense counsel a son of a bitch. While we note this lapse of judicial decorum, this argument fails because the comment was made at a sidebar conference -6- out of earshot of the jury. Therefore, there was never any opportunity for the jury to be impermissibly persuaded by the judge's opinion of defense counsel. Defendant also argues that because of her anger the judge erred in not declaring a mistrial. This argument fails. Anger, even along with name calling out of earshot of the jury, is not a sufficient reason for a mistrial. The question, rather, is whether the anger prevented defendant from receiving a fair trial. Defendant makes no claims to such effects. Nor was there any objective evidence that the judge was biased against counsel's client. Accordingly, the second assignment is overruled. Defendant's third assignment of error states as follows: III. THE TRIAL COURT COMMITTED SUBSTANTIAL PREJUDICIAL ERROR BY PROHIBITING DEFENSE CROSS-EXAMINATION RELATIVE TO THE CREDIBILITY AND BIAS OF THE COMPLAINING WITNESS AND OTHER PROCEDURAL ERRORS. In this assignment defendant argues that the trial court committed reversible error when the court prevented him from cross- examining Carrie about a doctor's appointment for treatment of a sexually-transmitted disease. The trial court sustained the objection of the prosecutor. Defendant argued that the cross- examination was relevant because Carrie needed money for the appointment and filed charges against defendant merely in an attempt to get money from defendant. (Tr. 78.) This assignment of error fails. The admission or exclusion of evidence rests with the sound discretion of the trial court. State v. Jacks (1989), 63 Ohio App.3d 200. In rape and gross sexual imposition cases, the legislature has sharply restricted what -7- evidence is admissible regarding the victim's sexual activity. See, R.C. 2907.02(D)(rape); R.C. 2907.05(D)(gross sexual imposi- tion); State v. Clemons (1994), 94 Ohio App.3d 701. The Clemons court went on to state as follows: Unlike the balance provided in Evid.R. 403, requiring that evidence must be excluded where it [probative value] is substantiallyoutweighed by its prejudicial value, the last sentences of R.C. 2907.02(D) and 2907.05(D) provide simply for weighing the probative value of the evidence against its prejudicial effect. See Weissenberger, Ohio Evidence (1993) 27, Section 404.7. Id. at 706, emphasis in original. In the case at bar, the court did not abuse its discretion in preventing this line of questioning. The stated relevance for the questioning, that is, plaintiff's need for money, is too tenuous to offset the prejudice to the victim if defense counsel were allowed to sully her character with evidence of a past sexually-transmitted disease. Additionally, defendant argues that he was denied a fair trial when the court denied his request for sidebars and his request to submit a proffer. This argument is without merit. The decision to grant a sidebar is within the [trial] court's discretion. State v. Larson (Nov. 10, 1993), Cuyahoga App. No. 63001, unreported. In the case sub judice, the court did not abuse its discretion. Defendant argues that the court denied six separate requests for sidebars. (Tr. 202, 367-369, 388, 277-278, 417.) Of these six requests, three came after the court sustained an objection by defense counsel. Moreover, the denial of these requested sidebars did not exhibit a general bias against defendant, because the court did honor defendant's request for -8- sidebars on numerous other occasions. (Tr. 77, 107, 113, 257, 378.) Finally, defendant has not stated what evidence or argument he was precluded from raising at these requested sidebars. Defendant further argues that the court erred by allowing the state to subpoena and present the testimony of another young woman, Kristen, after the close of their case and after the court had ruled on the motion for acquittal. This argument fails. Under R.C. 2945.10 a trial court has the discretion to permit the presentation of evidence out of order. State v. Graven (1978), 54 Ohio St.2d 114. Herein, the testimony of Kristen corroborated Carrie's testimony. Thus the court could properly rule on the Crim. R. 29 motion prior to Kristen's testimony. Defendant's third assignment of error is overruled. The fourth assignment states as follows: IV. THE DEFENDANT/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. In this assignment defendant argues he was denied his right to effective assistance of counsel. Specifically, defendant alleges his trial counsel was ineffective for (1) not challenging the indictment as being void for vagueness because the indictments did not give a specific date for the offenses, (2) not objecting to the aforementioned predator comments during opening and closing arguments, and (3) not adequately preparing to cross-examine Carrie. These arguments by defendant fall short of establishing ineffective assistance of counsel. -9- In order to succeed on an ineffective assistance of counsel claim, defendant must establish that counsel's performance fell below an objective standard of reasonable representation and, in addition, that prejudice arose from counsel's performance. To show prejudice, the defendant must demonstrate a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Strickland v. Washington (1984), 466 U.S. 668; State v. Bradley (1989), 42 Ohio St.3d 136. In the case at bar, defendant has not established ineffective assistance of counsel. First, the fact that trial counsel did not attack the lack of a date on the indictment does not warrant a reversal, because the date of the offense was not a material element of the charge of gross sexual imposition and, therefore, a challenge to the indictment would not have changed the outcome of the case. See State v. Madden (1984), 15 Ohio App.3d 130. The details of the event were sufficiently presented to allow defendant to prepare his defense. The date might be important if defendant alleged he was not at the location, but no such possible defense was offered. Second, we have already determined that the comments by the prosecutor did not materially prejudice defendant. Third, the fact that the jury acquitted him on some of the charges militates against defendant's claims he was prejudiced by his attorney's failure to object to testimony that defendant paid the workers under the table. Finally, the fact that defense counsel did not cross-examine Carrie through store records about the closing time of the store does not warrant a reversal. Even if the -10- records established when the store was closed, as the state points out, it would be reasonable to infer that defendant and Carrie would stay after closing in order to clean the restaurant. Accordingly, defendant's claim of ineffective assistance of counsel fails. V. THE CONVICTION IN THE TRIAL COURT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE THE CONVICTION BEYOND A REASONABLE DOUBT. In this assignment defendant argues that the evidence was insufficient to sustain a conviction for gross sexual imposition. This assignment fails. In a criminal prosecution, the state bears the burden of proof with respect to each statutory element of an offense. The standard for evaluating whether the state has presented sufficient evidence 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. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. Recently, the Ohio Supreme Court explained that a challenge to the sufficiency of the evidence is separate and distinct from a challenge to the weight of the evidence. State v. Thompkins (1991), 78 Ohio St.3d 380, 386. The Court stated: [T]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can -11- be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663 citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Id. at 386-387. In the case at bar, the evidence was sufficient to sustain a conviction of gross sexual imposition. The victim stated that defendant pinned her down and, against her will, fondled and attempted to place his mouth on her breasts. Construing this evidence in a light most favorable to the state, we find this is sufficient evidence of gross sexual imposition. Defendant's fifth assignment of error is overruled. Defendant's sixth assignment states as follows: VI. THE CONVICTION IN THE TRIAL COURT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE THE CONVICTION BEYOND A REASONABLE DOUBT. In this assignment defendant argues that his conviction was against the manifest weight of the evidence. The Thompkins Court, in addition to elaborating on the sufficiency standard, also discussed a challenge to the weight of the evidence. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be -12- entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's, supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). Thompkins at 387. In the case at bar, the jury did not lose its way and create a manifest miscarriage of justice when it found defendant guilty of gross sexual imposition. In support of defendant's argument, that Carrie's story lacks credibility, defendant points to her account of being held down and fondled at the same time as well as to the fact that she did not tell her story to the authorities right away. These arguments do not, however, cast doubt on the jury's verdict. It would be reasonable for a jury, who observed Carrie as she testified, to be satisfied with the explanation that this was a frightened seventeen-year-old girl. Moreover, the jury heard three accounts of the defendant improperly forcing himself on three young girls in his employ. The only difference in his behavior regarding Carrie is that he went further. There is -13- nothing in the record to suggest the jury lost its way when it chose to believe her story. Accordingly, the jury verdict was not against the manifest weight of the evidence. 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 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 LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI 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 .