COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77454 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROLONDO JOHNSON : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 26, 2000 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-380648 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor BY: MICHAEL SULLIVAN (#0064338) MARY H. McGRATH (#0041381) The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JIMMIE MACK, JR. (#0017659) Jimmie Mack, Jr. Co., L.P.A. 716 Leader Building Cleveland, Ohio 44114 SPELLACY, J.: Defendant-appellant Rolondo Johnson ( appellant ) appeals from his conviction for one count of rape and one count of attempted rape. -2- Appellant assigns the following errors for review: I. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE DEFENDANT'S CONVICTION. II. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. TRIAL COURT COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE DEFENDANT'S RIGHT TO A FAIR TRIAL. IV. THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR WHEN IT OVERRULED DEFENDANT'S MOTION FOR A DIRECTED VERDICT OF ACQUITTAL AT THE CLOSE OF HIS CASE IN CHIEF. V. THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR WHEN IT IMPROPERLY ADMITTED HEARSAY EVIDENCE TO CORROBORATE THE TESTIMONY OF THE ALLEGED VICTIM. VI. THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR WHEN IT PERMITTED THE STATE TO ARGUE IN CLOSING ARGUMENT ABOUT TANISHA PLAYING WITH HERSELF WHEN THE DEFENDANT WAS DENIED THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE VICTIM ON THIS SUBJECT. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On August 27, 1999, Belinda Felder-Johnson went out for the night, leaving her apartment shortly after 11:00 p.m. Her twelve- year old daughter Tanisha and ten-year old son James remained home with appellant, Felder-Johnson's husband. Tanisha and James wanted to watch different programs on television. James remained in the living room while Tanisha went into her mother's bedroom, located right off the living room. -3- Neighbors from the apartment building visited. Their visit was followed by a visit from a friend of Felder-Johnson. Tanisha left the bedroom to greet the visitors, returning to the bedroom after they left. Appellant told James to let him know if anyone else knocked on the door. Appellant entered the bedroom, closing the door behind him. Tanisha observed appellant pause near the bottom of the bed. Appellant removed his shorts and got into the bed. Tanisha stated appellant reached under the sheet which covered her and pulled down her shorts and underwear in one motion. Appellant placed one or two fingers into the child's vagina, moving the finger or fingers up and down inside her body. Appellant next took a plastic or rubber phallic shaped object and touched Tanisha with the tip of it. Felder-Johnson received the object as a shower gift and kept it in a bag under the bed. Tanisha denied ever seeing the object before this night. At that point, Felder-Johnson slid open the door to the bedroom. She returned to the apartment unexpectedly and early to retrieve some money from the bedroom. Felder-Johnson saw Tanisha laying on the bed covered by a sheet. Tanisha's eyes were big and she seemed to be scared. Appellant turned away from Tanisha as Felder-Johnson entered the room. A blanket was around his waist. Felder-Johnson asked what appellant was doing to Tanisha. Felder-Johnson pulled back the sheet covering her daughter. Tanisha was unclothed from the waist down. Her shorts and -4- underwear were rolled together near the end of the bed. The plastic phallus was on the bed between appellant and Tanisha. Felder-Johnson removed her daughter from the bedroom, taking her into the bathroom. Felder-Johnson told Tanisha to talk to her. Appellant came to the bathroom door and said Tanisha was lying. Felder-Johnson then took Tanisha outside. The child said appellant took her clothes off and stuck his finger in her. The police responded to the call concerning a sexual assault on a child. Cleveland Police Officer Jason Edens spoke to the family members. Tanisha was taken to Metro Health Medical Center for an examination. Dr. Krenitsky did not discover any sign of injury or penetration. He was not surprised because the child described very minimal contact took place. Appellant denied touching Tanisha inappropriately. He opined the child obtained the plastic phallus from under the bed and was trying to use it on herself. The grand jury indicted appellant for two counts of rape and one count of kidnapping. The rape charges each contained a sexually violent predator specification. The case was tried to the bench. At the close of the state's case, the trial court granted appellant's motion for directed verdict on the second rape count but allowed the state to go forward on the lesser included offense of attempted rape on that charge. The trial court found appellant guilty of rape and attempted rape but determined the element of force was not proven. The trial court acquitted appellant of the -5- kidnapping charge. The trial court sentenced appellant to a term of five years for the first count of rape and two years for the attempted rape offense. Both sentences were to be served concurrently. II. In his first assignment of error, appellant contends the trial court's verdict was not supported by sufficient evidence. Appellant attacks Tanisha's credibility and points out there was no medical evidence corroborating her accusation. Sufficiency is a legal standard which is applied to determine whether the evidence admitted at trial is legally sufficient to support the verdict as a matter of law. State v. Thompkins (1997), 78 Ohio St.3d 380. 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. State v. Jenks (1991), 61 Ohio St.3d 259, at paragraph two of the syllabus. In essence, sufficiency is a test of adequacy. Whether the evidence presented in a case is legally sufficient to sustain a verdict is a question of law and a conviction based upon legally insufficient evidence constitutes a denial of due process. Thompkins, supra. -6- The trial court convicted appellant of rape: R.C. 2907.02(A)(1) provides: No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. Appellant also was convicted of attempted rape. R.C. 2923.02(A) states: No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense. Evidence admitted at trial supports appellant's conviction. Tanisha testified appellant removed her shorts and underpants. He penetrated her vagina with one or two fingers. He then touched her with the plastic phallus when the door opened. Felder-Johnson observed Tanisha's clothing rolled together near the bottom of the bed when she pulled back the bedcovers. Felder-Johnson saw appellant roll away from Tanisha when she opened the door to the bedroom. Minor inconsistencies between witnesses' testimony are for the fact-finder to resolve. Appellant points out that no medical evidence corroborated Tanisha's version of events. Dr. Krenitsky testified he did not expect to find any evidence of penetration based upon the details of the incident. The other inconsistency appellant relies upon was -7- Tanisha's statement to Detective Howard that her mother stopped appellant from continuing. Tanisha also told Detective Howard appellant stopped before her mother opened the door. The trial court considered this evidence and did not find it to be material. Further, that Felder-Johnson did not observe any sexual contact hardly is dispositive of the allegation. Tanisha stated she was covered by a sheet the entire time. When viewing the evidence in the light most favorable to the prosecution, sufficient evidence was admitted at trial to support appellant's convictions. Appellant's first assignment of error is overruled. III. Appellant's second assignment of error challenges his verdicts as being against the manifest weight of the evidence. Appellant essentially restates the arguments raised in his first assignment of error. To determine whether a conviction is against the manifest weight of the evidence: 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. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, citing State v. -8- Martin (1983), 20 Ohio App.3d 172, 175. A review of the record shows the trial court did not lose its way when convicting appellant of rape and attempted rape. Appellant's second assignment of error is overruled. IV. In his third assignment of error, appellant claims his attorney was ineffective at trial. Appellant argues his attorney did not object to hearsay evidence given by Felder-Johnson and Officer Edens. Appellant further states his mother should not have been called as a witness. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra, at 694. Appellant specifically points to the testimony of Felder- Johnson about the statements made to her by Tanisha regarding the -9- incident. Evid.R. 803(B) provides that hearsay statements relating to a startling event or condition made while the defendant was under the stress of excitement caused by the event or condition are an exception to the exclusionary provisions of the hearsay rule. In order to invoke the exception, there must be an occurrence of a startling event sufficient to make the declarant's statement unreflective and sincere, the making of the statement before there is time to reflect, a statement descriptive of the startling event, and personal observation by the declarant of the event described. State v. Wallace (1988), 37 Ohio St.3d 87, 89. That a declarant's statements are elicited by questioning does not necessarily negate the spontaneity of the declaration if the questioning is not leading or coercive, facilitates the person's expression of what already was the natural focus of the declarant's thoughts, and does not destroy the domination of the nervous excitement over the declarant's reflective faculties. Id. at 93. Felder-Johnson discovered appellant and Tanisha lying in the bed. The child was unclothed from the waist down. The phallus was in the bed between appellant and Tanisha. Felder-Johnson immediately removed Tanisha from the bedroom, took her to a nearby bathroom and asked Tanisha what happened. Tanisha's statements were made right after the startling event and described the event. Therefore, the statements were admissible as an excited utterance. The one statement by Officer Edens merely was cumulative to Felder- Johnson's testimony. Appellant cannot demonstrate prejudice by its admission. -10- Further, the failure to object alone is not enough to sustain a claim of ineffective assistance of counsel. State v. Fears (1999), 86 Ohio St.3d 329. Therefore, appellant's counsel was not ineffective for failing to object. Appellant contends his attorney should not have called his mother as a witness. On the stand, Brenda Johnson testified she went to the apartment, after the arrival of the police. Brenda Johnson related appellant denied committing the act. She went on to state Tanisha said appellant did do it. The decision to call witnesses is a matter of trial strategy and those decisions are accorded deference by a reviewing court. State v. Coulter (1992), 75 Ohio App.3d 219. Trial tactics that are debatable generally do not constitute a deprivation of effective counsel. State v. Phillips (1995), 74 Ohio St.3d 72, 85. The entire direct examination of Brenda Johnson was favorable to appellant's version of events. The one isolated statement hardly was prejudicial to his defense. Appellant's third assignment of error lacks merit. V. Appellant's fourth assignment of error states the trial court abused its discretion by overruling his Crim.R. 29(A) motion. Appellant again asserts Tanisha's testimony lacked credibility. A trial court is required to grant a motion for acquittal made pursuant to Crim.R. 29 if the evidence is insufficient to support a conviction for the offense. State v. Pickett (1996), 108 Ohio -11- App.3d 312, 314. A trial court shall not grant a Crim.R. 29 motion if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. Appellant has offered no new arguments in this assignment of error. For the reasons set forth in the first assignment of error, the fourth assignment of error is overruled. VI. In his fifth assignment of error, appellant again objects to the testimony of Felder-Johnson, Officer Edens, and Brenda Johnson regarding statements made by Tanisha. Appellant argues the evidence was inadmissible hearsay. This court will review the assignment of error under the plain error standard because appellant did not object to the evidence below. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Crim.R. 52(B). Notice of plain error is taken with the utmost caution, under exceptional circumstances, and only to prevent the manifest miscarriage of justice. State v. Landrum (1990), 53 Ohio St.3d 107, 111. Therefore, any claim of error is waived unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12. A trial court has broad discretion over the admission of evidence. State v. Long (1978), 53 Ohio St.2d 91. In order to -12- constitute an abuse of discretion, the evidentiary ruling must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256. Hearsay is defined as a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). In the third assignment of error, it was determined the testimony of Felder-Johnson was admissible under the excited utterance exception to the general rule excluding hearsay. The evidence by the other two witnesses to which appellant now objects was minor. It cannot be said the evidence altered the outcome of the trial. Appellant's fifth assignment of error lacks merit. VII. In his sixth assignment of error, appellant contends the trial court abused its discretion by permitting the prosecutor to comment about certain evidence during closing argument. Appellant states the comments prejudiced his defense because the trial court limited his cross-examination about this subject. A trial court has broad discretion in imposing limits on the scope of cross-examination. State v. Cobb (1991), 81 Ohio App.3d 179. A reviewing court will not reverse the judgment of the trial court for failure to admit or exclude evidence unless the trial court clearly abused that discretion, resulting in prejudice to the -13- complaining party. State v. McCray (1995), 103 Ohio App.3d 109. An abuse of discretion connotes more than a mere error of law. Rather, it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413. The trial court limited appellant's cross-examination of Tanisha about any previous behavior she may have engaged in of a sexual nature. Appellant also questioned Felder-Johnson about this same subject and put forth his own theories during his testimony. Appellant cannot claim prejudice when the information was before the trial court. The trial court correctly limited appellant's cross-examination of the child on this particular subject. Appellant did not object to the prosecutor's comments. He has waived all but plain error on appeal. State v. Stojetz (1999), 84 Ohio St.3d 452. Prosecutors have wide latitude in closing argument and may comment upon the testimony and suggest conclusions which may be drawn from the evidence. State v. Hart (1994), 94 Ohio App.3d 665, 671. As mentioned above, appellant explored this subject area during trial. The prosecutor properly commented upon this evidence during closing argument. Appellant's sixth assignment of error is not well-taken. 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. The Defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, ADM.J. and KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY 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. 22. 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .