COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73467 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION DARNELL LITTLE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-352227 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LISA REITZ WILLIAMSON Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PATRICIA J. SMITH 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- TERRENCE O'DONNELL, PRESIDING JUDGE: Darnell Little appeals from a common pleas court jury verdict finding him guilty of gross sexual imposition arising from a claim that he improperly touched nine-year-old Emalee Garcia, the daughter of his girlfriend, Arnetta Garcia. Little argues the court erred in admitting Arnetta's testimony to bolster Emalee's credibility, and that his conviction is against the manifest weight of the evidence. We disagree and affirm the conviction. The record reflects that at trial, Emalee Garcia testified that around 9:00 A.M. on June 10, 1997, she awoke, discovered her T-shirt pulled up around her stomach, her panties pulled down to her knees, and Darnell Little kneeling next to her bed touching her. Following this, Little immediately left her room but, from the hallway, offered to assist Emalee to pull up her panties; when she refused, he told her to watch television with him. Emalee did watch television with him for about five minutes but then went to her grandmother's room. Around 11:00 A.M., Emalee's mother telephoned from work to inquire if Emalee's Aunt Isabelle had arrived to care for Emalee's grandmother; at that time, Emalee told her about the incident involving Little. Arnetta then telephoned the Cleveland Police Department and reported the incident, but did not leave work at that time to return home. About twenty minutes later, Isabelle arrived at the home, and Emalee then told her aunt the details of the incident with Little. Isabelle then woke Little around 1:30 P.M. and confronted him with Emalee's accusation. Little denied touching Emalee and told her that she had been -3- dreaming. Around 5:00 P.M., Officer Jason Steckle arrived at the home to investigate Arnetta's complaint which resulted in Little's arrest. The following day, June 11, 1997, Officer Terrence McHugh took a statement from Little denying that he had touched Emalee, and stating that Arnetta prompted Emalee to fabricate the accusation. On June 12, 1997, McHugh interviewed Emalee who, using anatomically-correct dolls, stated that she awoke and found Little touching her with his hand. The grand jury subsequently indicted Little on one count of gross sexual imposition of a victim under the age of thirteen, and the court tried the case before a jury. Emalee testified regarding the details of the incident involving Little, and admitted that she had never gotten along with him. Officers McHugh and Steckle also testified for the state. Arnetta Garcia testified as a defense witness and, on direct examination in response to counsel's question regarding whether she had remained at work because she did not want to believe Emalee, testified she remained at work because she did not want to face Emalee, and she believed that Isabelle would protect Emalee until the police arrived. On cross-examination, Arnetta stated that Little had come home drunk and belligerent that night, and further testified over objection that she believed Emalee had been truthful in relating the incident because her story had remained consistent. Little then testified that he had not been drinking that night, that he came home around 2:30 or 3:00 A.M., watched television, and then fell asleep until 1:30 P.M. the following afternoon. He -4- further denied touching Emalee and stated that upon learning Arnetta had called the police, he did not run from the house because he had no reason to run. Following charge and deliberation, the jury returned a verdict of guilty. Little now appeals raising two assignments of error for our consideration. The first assignment of error states: I. THE TRIAL COURT ERRED WHEN IT ALLOWED IMPROPER AND IRRELEVANT TESTIMONY TO BOLSTER THE CREDIBILITY OF THE MINOR WITNESS. Little contends the court erred in admitting Arnetta Garcia's testimony that she believed Emalee told the truth, arguing that her statements improperly bolstered Emalee's credibility. The state urges the court did not err in admitting Garcia's testimony, arguing that Little opened the door to the testimony by asking Arnetta on direct examination if she originally had not wanted to believe Emalee's story, and further urges that if the court did err in admitting the testimony, it constitutes harmless error. The issue then presented for our consideration concerns whether the trial court erred in admitting over objection Arnetta's testimony that she believed her daughter told the truth. When a defendant opens the door to otherwise inadmissible evidence, the state may use similar information to rebut the inference arising from that evidence. See State v. Jackson (1991), 57 Ohio St.3d 29; State v. Greer (1988), 39 Ohio St.3d 236. -5- In this case, the record reflects that appellant's counsel posed the following to his own witness Arnetta Garcia on direct examination: Q. And you felt your sister could help handle Mr. Little, but you could not? That's why you wouldn't go home? A. I felt Emalee was in a safer environment with my sister. I didn't want to go home. Q. Because you didn't want to believe what had taken place? A. I was in denial. I was scared to go home. I was fearful of what my family would say. I didn't want to face my daughter. In the state's cross-examination of her, the following colloquy occurred: Q. Do you believe your daughter? MR. JAMISON: Objection, Judge. THE COURT: Overruled. Please continue. Q. Do you believe your daughter? A. I believe my daughter. She's been very consistent with what she says. She's been very consistent with what she says. * * * Q. * * * I asked you whether you thought your daughter was being truthful and you answered A. Yes. Here, Little's inquiry on direct examination raised the inference that Garcia did not believe Emalee's story. Therefore, the state properly cross-examined Garcia regarding her belief of -6- Emalee's credibility, in order to rebut that false inference. Accordingly, we overrule this assignment of error. Little's second assignment of error states: II. THE VERDICT FINDING THE APPELLANT GUILTY OF GROSS SEXUAL IMPOSITION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Little contends his conviction is against the manifest weight of the evidence, arguing that without the bolstering of Emalee's credibility, his testimony is more credible because the evidence showed that Emalee disliked him; her mother, Arnetta did not immediately return home or telephone the police after hearing Emalee's allegation; on the previous night he slept so soundly that no one could wake him until 1:30 P.M.; and he did not run from police officers but stayed and declared his innocence. The state urges that Little's conviction is not against the manifest weight of the evidence, arguing that his statement to police officers contained two inconsistencies, regarding Emalee's possible motive for lying and his prior arguments with Arnetta; that Emalee consistently related her story to others including the jury; and that she exhibited common reactions to sexual abuse. The issue then presented for our review concerns whether Little's conviction is against the manifest weight of the evidence. We initially observe that the test is found in State v. Martin (1983), 20 Ohio App.3d 172, at 175: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. -7- Here the test is much broader. 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 * * *. Further, R.C. 2907.05 provides the elements of gross sexual imposition and states in relevant part: (A) No person shall have sexual contact with another, not the spouse of the offender * * * when any of the following applies: * * * (4) The other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person. R.C. 2907.01(B) defines sexual contact to mean, any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. The determination of credibility of witnesses is a matter left for jury consideration. See State v. DeHass (1967), 10 Ohio St.2d 230. In this case, the jury considered the testimony of Emalee and learned of her relationship with Little. Further, the jury considered the testimony of Little regarding his version of what had occurred. After reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of the witnesses, we conclude the jury did not clearly -8- lose its way and create such a manifest miscarriage of justice that Little's conviction must be reversed. Accordingly, we overrule this assignment of error. Judgment affirmed. 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. LEO M. SPELLACY, J., and JAMES D. SWEENEY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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 -9- journalization of this court's announcement of decision by the .