[Cite as State v. Fether, 2012-Ohio-892.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2011-CA-00148
JOHN WAYNE FETHER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No.
2011CR0129
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 5, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN FERRERO ANTHONY KOUKOUTAS
STARK COUNTY PROSECUTOR 116 Cleveland Avenue N.W.
BY: CHRYSSA HARTNETT Suite 808
110 Central Plaza South Canton, OH 44702
Canton, OH 44702
[Cite as State v. Fether, 2012-Ohio-892.]
Gwin, P.J.
{1} Defendant-appellant John W. Fether appeals his convictions and
sentences from the Stark County Court of Common Pleas for one count of Rape a
felony of the first degree in violation of R.C. 2907.02(A)(1)(c) and one count of Sexual
Battery a felony of the third degree in violation of 2907.03(A)(5). Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE CASE AND FACTS
{2} In 2010, Josephine Fether and appellant had been married for 22 years.
The couple lived with Josephine’s two adult children from a previous relationship, 25
year-old Marcus and 26 year-old Angela. Marcus' girlfriend Cassie also resided in the
home.
{3} Angela was born with spinal meningitis and cerebral palsy. As a result,
she is moderately mentally retarded and has physical limitations. She did not take her
first steps until she was fifteen years old. Angela requires assistance to walk, bathe and
dress. Mentally she functions at the level of a 10-year-old child. Angela spends her day
on the sofa in front of the television which was always left on for her to watch.
{4} On January 17, 2011, Josephine, Marcus and Cassie left the home to do
errands, leaving Angela and John at home. When they got back home, Josephine went
into the house first followed by Marcus and then Cassie. Josephine immediately saw
that Angela was not on her normal place on the sofa and that the television had been
turned off. Alarmed because the television is never off, Josephine went straight to her
bedroom looking for John. Marcus and Cassie followed.
Stark County, Case No. 2011-CA-00148 3
{5} When Josephine looked into the bedroom, she saw Angela lying on the
bed with her pants pulled halfway down and her entire backside exposed. At the same
time, she watched as appellant, naked from the waist down, rolled over and tried to
cover his erect penis with a blanket. Shocked and enraged, Josephine ran into the
room, grabbed appellant by the penis and punched him in the mouth. Josephine
continued to pull on appellant's penis, screaming and asking him what he thought he
was doing to her daughter. Appellant said nothing, but Angela became extremely
distraught and began shaking and crying. Josephine ordered Marcus and Cassie to get
Angela out of the room. Cassie helped Angela pull up her pants and then helped her
walk to her bedroom.
{6} Josephine called 911, got Angela into the car and drove to her sister
Karen's house, just a block down the street. Cassie and Marcus followed in their
vehicle. Karen, Cassie and Marcus took Angela inside while Josephine waited outside
for the police. Angela was still very upset.
{7} When their cruiser appeared on the street, Josephine flagged down Stark
County Sheriff's deputies Gayles and Curry. Josephine was extremely upset, crying and
agitated. She kept telling the deputies "he did something to my baby.” Deputy Gales
determined that Josephine was referring to her husband and that the victim was in the
house. He and Deputy Curry then went inside to speak to Angela and had Josephine
complete a written statement.
{8} Deputy Curry spoke with Angela. She was very upset and concerned that
Deputy Curry understood that she did not tell, but rather that "mom seen it." She told
him that appellant pulled her pants down and "stuck his dick" inside her. Based on this
Stark County, Case No. 2011-CA-00148 4
information, Deputy Curry instructed Josephine to take Angela to the hospital. In the
meantime, the deputies went to the Fether home to talk with appellant.
{9} Josephine and Karen took Angela to Aultman Hospital where she was
seen by sexual assault nurse examiner, Carolyn McCune. In describing what happened,
Angela told McCune that appellant took her in his room, pulled her pants down, put his
"dick" "down there" and "moved up and down on me." Angela indicated that appellant
had done the same thing "lots of times.”
{10} Nurse McCune conducted a physical examination, collected Angela's
underwear and completed a rape kit which included a vaginal smear, and vaginal and
perianal swabs. The rape kit was then sent to the Canton Stark County Crime Lab.
Nurse McCune's physical exam revealed mild redness of Angela's cervix and some
clear fluid in the cervical vault.
{11} Meanwhile, Marcus had let deputies Curry and Gales into the Fether
home. They found appellant lying on his bed, fully clothed and sound asleep. Deputy
Gales woke appellant up, asked that he accompany them to the sheriff's office.
Appellant agreed.
{12} At the sheriff’s department, appellant spoke with Deputy John Von
Spiegel. Appellant denied the allegations but told Deputy Von Speigel that he had
consumed a significant amount of alcohol that day. Appellant claimed he did not
remember his wife grabbing his penis and trying to pull it off, nor allegedly did he recall
her striking him. Appellant acknowledged that he was aware of Angela's mental and
physical disabilities. Deputy Von Spiegel further testified that appellant admitted to
touching Angela.
Stark County, Case No. 2011-CA-00148 5
{13} Deputy Von Spiegel obtained buccal swabs from appellant for DNA
comparison and took appellant's clothing as evidence. These items were taken to the
Canton Stark County Crime Laboratory.
{14} Criminalist Jennifer Creed examined the clothing and buccal swabs
obtained from appellant and the rape kit obtained from Angela. From Angela's vaginal
and perianal swabs, Ms. Creed was able to identify seminal fluid. However, Ms. Creed
was unable to isolate a DNA profile from the seminal fluid. Angela's underwear
contained a mixture of DNA from Angela and at least two other people, neither of which
was appellant. Testimony revealed Angela’s underwear was second-hand. Ms. Creed
also examined appellant's boxer shorts. On the interior front of the shorts, Creed located
a stain containing a prostate-specific antigen, which is a component of seminal fluid.
When Ms. Creed performed DNA testing on the stain, she obtained a mixture of DNA
from appellant and a female. The female DNA was Angela's.
{15} In February 2011, appellant was charged with three counts of rape and
three counts of sexual battery. The case proceeded to a jury trial. After hearing all the
evidence and deliberating, the jury convicted appellant of one count of rape and one
count of sexual battery and acquitted him of the remaining charges.
{16} At a later sentencing hearing, the trial court merged the convictions as
allied offenses of similar import under R.C. 2941.25(A), sentenced appellant ten years
for rape and classified him as a Tier III sex offender.
{17} Appellant has timely appealed raising the following four Assignments of
Error,
Stark County, Case No. 2011-CA-00148 6
{18} “I. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{19} “II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL.
{20} “III. APPELLANT WAS DENIED A FAIR TRIAL AS A RESULT OF
PROSECUTORIAL MISCONDUCT.
{21} “IV. THE TRIAL COURT ABUSED ITS DISCRECTION [Sic.] WHEN IT
DID NOT PERMIT CROSS EXAMINATION REGARDING A PRIOR FELONY
CONVICTION.”
I.
{22} In his First Assignment of Error appellant maintains that his convictions
are against the sufficiency of the evidence and against the manifest weight of the
evidence. We disagree.
{23} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, ––– U.S. ––––, 130 S.Ct. 665, 673, 175
L.Ed.2d 582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926
N.E.2d 1239, 2010–Ohio–1017 at ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933
N.E.2d 296, 2010–Ohio–2720, ¶68 (5th Dist.).
Stark County, Case No. 2011-CA-00148 7
{24} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997–Ohio–355. 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 fact
finder’s resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs
v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an
appellate court may not merely substitute its view for that of the jury, but must find that
“‘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.’” State v. Thompkins, supra, 78
Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717,
720–721( 1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved
for “‘the exceptional case in which the evidence weighs heavily against the conviction.’”
Id.
{25} In the case at bar, appellant was found guilty of one count of rape in
violation of R.C. 2907.02(A)(1)(c), which required that appellant knew the victim’s
capability was substantially impaired. More particularly, R.C. 2907.02 states:
{26} “(A)(1) 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:
{27} “* * *
Stark County, Case No. 2011-CA-00148 8
{28} “(c) The other person's ability to resist or consent is substantially impaired
because of a mental or physical condition or because of advanced age, and the
offender knows or has reasonable cause to believe that the other person's ability to
resist or consent is substantially impaired because of a mental or physical condition or
because of advanced age.”
{29} In order to convict appellant of Rape, the state had to prove appellant
engaged in sexual conduct with Angela. “Sexual conduct” is defined to include “vaginal
intercourse between a male and female; anal intercourse, fellatio, and cunnilingus
between persons regardless of sex; and, without privilege to do so, the insertion,
however slight, of any part of the body or any instrument, apparatus, or other object into
the vaginal or anal cavity of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.” R.C. 2907.01(A).
{30} “Corroboration of victim testimony in rape cases is not required. See State
v. Sklenar (1991), 71 Ohio App.3d 444, 447, 594 N.E.2d 88; State v. Banks (1991), 71
Ohio App.3d 214, 220, 593 N.E.2d 346; State v. Lewis (1990), 70 Ohio App.3d 624,
638, 591 N.E.2d 854; State v. Gingell (1982), 7 Ohio App.3d 364, 365, 7 OBR 464, 455
N.E.2d 1066.” State v. Johnson, 112 Ohio St .3d 210, 217, 2006-Ohio-6404, 855 N.E.2d
1144, ¶ 53.
{31} Appellant was also found guilty of sexual battery pursuant to R.C.
2907.03(A)(5), which provides in relevant part,
{32} “(A) No person shall engage in sexual conduct with another, not the
spouse of the offender, when any of the following apply:
{33} “* * *
Stark County, Case No. 2011-CA-00148 9
{34} “(5) The offender is the other person's natural or adoptive parent, or a
stepparent, or guardian, custodian, or person in loco parentis of the other person.
{35} “* * *”
{36} To support his argument that his convictions are premised upon
insufficient evidence and are against the manifest weight of the evidence, appellant
provides three arguments.
{37} Appellant argues first that there was no eyewitness testimony given that
he and Angela Richards were engaged in sexual conduct. Next, appellant contends that
there was no DNA evidence presented that would link him to having engaged in sexual
conduct with Angela. Finally, appellant maintains that he denied any sexual activity with
Angela Richards when he met with Detective John Von Spiegel of the Stark County
Sheriff's Office.
{38} Josephine testified that she walked in on her half-dressed husband and
daughter lying in the same bed and when caught, appellant attempted to cover up the
fact that he had an erection. Moreover, Angela told nurse McCune that appellant had
put his penis in her vagina. Angela herself was also very clear on this fact at trial.
{39} Next, appellant complains that there was no DNA evidence presented to
prove he engaged in sexual conduct with Angela. Although criminalist Creed was
unable to isolate a DNA profile from Angela's vaginal and perianal swabs, Ms. Creed
was able to chemically identify seminal fluid, a body fluid that women do not produce.
Further, the seminal fluid stain on the inside of appellant's shorts was a mixture of DNA
— his own and Angela's.
Stark County, Case No. 2011-CA-00148 10
{40} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found the essential elements of the crime
of rape and the crime of sexual battery beyond a reasonable doubt.
{41} We hold, therefore, that the State met its burden of production regarding
each element of the crime of rape and sexual battery and, accordingly, there was
sufficient evidence to support appellant's convictions.
{42} “A fundamental premise of our criminal trial system is that ‘the jury is the
lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (9th Cir.1973) (emphasis
added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining
the weight and credibility of witness testimony, therefore, has long been held to be the
‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their
natural intelligence and their practical knowledge of men and the ways of men.’ Aetna
Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”.
United States v. Scheffer, 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267(1997).
{43} Although appellant cross-examined the witnesses and argued that he did
not have sexual conduct with Angela, the weight to be given to the evidence and the
credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio
St.3d 182, 552 N.E.2d 180 (1990), certiorari denied, Jamison v. Ohio, 498 U.S. 881,
111 S.Ct. 228, 112 L.Ed.2d 182(1990).
{44} The jury was free to accept or reject any and all of the evidence offered by
the parties and assess the witness’s credibility. "While the jury may take note of the
inconsistencies and resolve or discount them accordingly * * * such inconsistencies do
not render defendant's conviction against the manifest weight or sufficiency of the
Stark County, Case No. 2011-CA-00148 11
evidence." State v. Craig, 10th Dist. 99AP-739, 2000 WL 297252(Mar 23, 2000) citing
State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714 (May 28, 1996).
Indeed, the jurors need not believe all of a witness' testimony, but may accept only
portions of it as true. State v. Raver, 10th Dist. No. 02AP-604, 2003- Ohio-958, 2003
WL 723225, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548(1964);
State v. Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889, 2003 WL 21291042, citing
State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096( 4th Dist. 1992). Although the
evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492 (1991), superseded by State constitutional amendment on other grounds as
stated in State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668(1997).
{45} After reviewing the evidence, we cannot say that this is one of the
exceptional cases where the evidence weighs heavily against the convictions. The jury
did not create a manifest injustice by concluding that appellant was guilty of the crimes
charged in the indictment.
{46} Accordingly, appellant’s convictions for rape and sexual battery are not
against the manifest weight of the evidence.
{47} Appellant’s First Assignment of Error is overruled.
III.
{48} Appellant’s Second and Third Assignments of Error address interrelated
concepts; therefore for continuity and ease of discussion we shall address appellant’s
Third Assignment of Error out-of-order.
Stark County, Case No. 2011-CA-00148 12
{49} Appellant contends that prosecutorial misconduct resulted in reversible
error. Specifically, appellant contends testimony elicited by the state from Josephine
and Marcus regarding their belief that appellant had victimized Angela prior to January
17, 2011 and the prosecutor's reference to their testimony in closing argument were
error. He further argues that the state improperly bolstered witness credibility and
misstated what the forensic evidence showed in closing argument.
{50} During opening statement, counsel is accorded latitude and allowed fair
comment on the facts to be presented at trial. See Maggio v. Cleveland, 151 Ohio St.
136, 84 N.E.2d 912 (1949), paragraph two of the syllabus. See, also, State v. LaMar, 95
Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 126. State v. Leonard, 104 Ohio
St.3d 54, 2004-Ohio 6235, 818 N.E.2d 229, ¶ 157. In addition, a prosecutor is entitled to
a certain degree of latitude in closing arguments. State v. Liberatore, 69 Ohio St. 2d
583, 589, 433 N.E.2d 561(1982). Thus, it falls within the sound discretion of the trial
court to determine the propriety of these arguments. State v. Maurer, 15 Ohio St. 3d
239, 269, 473 N.E.2d 768(1984). A conviction will be reversed only where it is clear
beyond a reasonable doubt that, absent the prosecutor's comments, the jury would not
have found the defendant guilty. State v. Benge, 75 Ohio St.3d 136, 141, 1996-Ohio-
227, 661 N.E.2d 1019. Furthermore, "[i]solated comments by a prosecutor are not to be
taken out of context and given their most damaging meaning." Donnelly v.
DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431(1974).
{51} The Ohio Supreme Court has overruled a prosecutorial misconduct
argument because the evidence of the defendant’s guilt was overwhelming. See State
v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶116, citing State v.
Stark County, Case No. 2011-CA-00148 13
Rahman, 23 Ohio St.3d 146, 154-155, 492 N.E.2d 401(1986). Accordingly, based upon
appellant's failure to object to the statements and bring the issue to the trial court's
attention for consideration, we must address this assignment under the plain error
doctrine.
{52} In criminal cases, plain error is governed by Crim. R. 52(B), which states:
{53} "Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court." An alleged error "does not
constitute a plain error ... unless, but for the error, the outcome of the trial clearly would
have been otherwise." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978),
paragraph two of the syllabus.
The defendant bears the burden of demonstrating that a plain error
affected his substantial rights. United States v. Olano (1993), 507 U.S.
725,734, 113 S.Ct. 1770, 123 L.Ed.2d 508(1993); State v. Perry (2004),
101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶14. Even if the
defendant satisfies this burden, an appellate court has discretion to
disregard the error and should correct it only to ‘prevent a manifest
miscarriage of justice.' " State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759
N.E.2d 1240(2002), quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d
804(1978), paragraph three of the syllabus. Perry, supra, at ¶14, 802
N.E.2d 643.
{54} The Supreme Court has repeatedly admonished that this exception to the
general rule is to be invoked reluctantly. "Notice of plain error under Crim. R. 52(B) is to
be taken with the utmost caution, under exceptional circumstances and only to prevent
Stark County, Case No. 2011-CA-00148 14
a manifest miscarriage of justice." Perry, supra, at ¶14, 802 N.E.2d 643. See, also,
State v. Thompson, 33 Ohio St.3d 1, 10, 528 N.E.2d 542(1987); State v. Williford
(1990), 49 Ohio St.3d 247, 253, 551 N.E.2d 1279(1990) (Resnick, J., dissenting).
{55} Comments made to incite fear, prejudice and/or passion in the jury
require reversal. Viereck v. United States, 318 U.S. 236, 247, 63 S.Ct. 561, 87 L.Ed
734(1943); State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906(1986). We find the
statements cited by appellant in support of his argument do not rise to the level of
inciting fear, prejudice and/or passion. The state simply did not present any misleading
information.
{56} “The prosecutors' argument did not manipulate or misstate the evidence,
nor did it implicate other specific rights of the accused such as the right to counsel or
the right to remain silent….” Darden v. Wainwright, 477 U.S. 168, 181-182, 106 S.Ct.
2624, 91 L.Ed.2d 144(1986).
{57} Extrinsic acts may not typically be used to suggest that the accused has
the propensity to act in a certain manner. Evid.R. 404; State v. Smith, 49 Ohio St.3d
137, 140, 551 N.E.2d 190(1990). However, there are exceptions. Evid.R. 404(B) allows
such evidence where it is offered to show "motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." Additionally, R.C. 2945.59
provides, "In any criminal case in which the defendant's motive or intent * * * is material,
any acts of the defendant which tend to show his motive or intent, the absence of
mistake or accident on his part, or the defendant's scheme, plan, or system in doing the
act in question may be proved, whether they are contemporaneous with or prior or
Stark County, Case No. 2011-CA-00148 15
subsequent thereto, notwithstanding that such proof may show or tend to show the
commission of another crime by the defendant."
{58} If a court finds that evidence was inadmissible under Evid. R. 404(B), the
court can still determine that the error was harmless. The Supreme Court of Ohio has
held that error is harmless if "there is no reasonable possibility that the evidence may
have contributed to the accuser’s conviction." State v. Drew, 10th Dist. No. 07AP-467,
2008-Ohio-2797, ¶31, quoting State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d
1035(1976), paragraph seven of the syllabus. Moreover, it is appropriate to find error
harmless where there is "either overwhelming evidence of guilt or some other indicia
that the error did not contribute to the conviction." State v. Ferguson, 5 Ohio St.3d 160,
166, n. 5, 450 N.E.2d 265(1983). "When considering whether error is harmless, our
judgment is based on our own reading of the record and on what we determine is the
probable impact the statement had on the jury." State v. Drew, supra, citing See State v.
Kidder, 32 Ohio St.3d 279, 284, 513 N.E.2d 311(1987).
{59} In the case at bar, the dates of the prior occurrences were generally
alleged to be from 2008 through 2011. (2T. at 81-82).
{60} We find that even if this evidence was unfairly inadmissible, the error was
harmless. As previously stated, the admission of prior bad acts is deemed harmless
unless there is some reasonable probability the evidence contributed to the accused's
conviction, City of Columbus v. Taylor, 39 Ohio St.3d 162, 529 N.E.2d 1382(1988).
Appellant cannot demonstrate prejudice concerning testimony elicited by the state
regarding allegation of sexual abuse prior to January 17, 2011 because he was
Stark County, Case No. 2011-CA-00148 16
acquitted of those counts of the indictment. He therefore has not demonstrated plain
error.
{61} Next, appellant argues that the state vouched for Josephine and Angela's
credibility during closing argument and further allegedly incorrectly stated that
appellant’s semen was found inside Angela.
{62} In reviewing allegations of prosecutorial misconduct, it is our duty to
consider the complained of conduct in the context of the entire trial. Darden v.
Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144(1986).
{63} Appellant did not object to some of the comments to which he now claims
error. Therefore, for those instances, we must find plain error in order to reverse.
{64} A prosecutor is entitled to a certain degree of latitude in closing
arguments. State v. Liberatore, 69 Ohio St.2d 583, 589, 433 N.E.2d 561(1982). Thus, it
falls within the sound discretion of the trial court to determine the propriety of these
arguments. State v. Maurer, 15 Ohio St.3d 239, 269, 473 N.E.2d 768(1984). A
conviction will be reversed only where it is clear beyond a reasonable doubt that, absent
the prosecutor's comments, the jury would not have found the defendant guilty. State v.
Benge, 75 Ohio St.3d 136, 141, 1996-Ohio-227, 661 N.E.2d 1019. Furthermore,
"[i]solated comments by a prosecutor are not to be taken out of context and given their
most damaging meaning." Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868,
40 L.Ed.2d 431(1974).
{65} This Court has observed,
In opening the closing argument, the prosecutor is limited to
comments upon the evidence, and the logical and appropriate conclusions
Stark County, Case No. 2011-CA-00148 17
to be drawn therefrom. Thus, he can bolster his own witnesses, and
conclude by saying, in effect, ‘The evidence supports the conclusion that
these witnesses are telling the truth.’ He cannot say, ‘I believe these
witnesses,’ because such argument invades the province of the jury, and
invites the jury to decide the case based upon the credibility and status of
the prosecutor. See State v. Smith (1984), 14 Ohio St.3d 13, 14 OBR 317,
470 N.E.2d 883. In a sense, such argument by the prosecutor injects
himself into the trial as a thirteenth juror, and claims to himself the first
vote in the jury room. Further, it is inappropriate for the prosecutor to
vouch for the integrity of his witnesses. Id.
As to the defense witnesses, including the defendant, the
prosecutor may comment upon the testimony, and suggest the
conclusions to be drawn therefrom. He can say, ‘The evidence supports
the conclusion that the defendant is lying, is not telling the truth, is
scheming, has ulterior motives, including his own hide, for not telling the
truth.’ See State v. Strobel (1988), 51 Ohio App.3d 31, 554 N.E.2d 916.
He may not say, ‘I believe the defendant is lying,’ for the same reasons as
above. State v. Draughn, 76 Ohio App.3d 666, 670, 602 N.E.2d 790(5th
Dist. 1992).
{66} During closing argument, the prosecutor stated that Josephine’s reactions
and swearing underscored the credibility of her testimony. The prosecutor also referred
to the fact that Angela made statements to law enforcement on two separate occasions
and the nurse at the hospital to bolster her credibility.
Stark County, Case No. 2011-CA-00148 18
{67} This Court has further noted,
In his rebuttal argument, the prosecutor may argue that the
evidence does not support the conclusion postulated by defense counsel.
He may comment upon the circumstances of witnesses in their testimony,
including their interest in the case, their demeanor, their peculiar
opportunity to review the facts, their general intelligence, and their level of
awareness as to what is going on. He may conclude by arguing that these
circumstances make the witnesses more or less believable and deserving
of more or less weight.
Generally, the credibility of various witnesses will now have been
put in issue by the argument of the defense. Considerable additional
latitude is due the prosecutor at this juncture, either on fair play grounds or
because the comments are invited by the defense. The prosecutor should
be allowed to go as far as defense counsel. Thus, if the defense accuses
witnesses of lying, the prosecutor should have the same right.
However, the prosecutor may not invite the jury to judge the case
upon standards or grounds other than the evidence and law of the case.
Thus, he cannot inflame the passion and prejudice of the jury by appealing
to community abhorrence or expectations with respect to crime in general,
or crime of the specific type involved in the case. United States v. Solivan
(6th Cir. 1991), 937 F.2d 1146”. Id. at 670-71, 602 N.E.2d at 793. State v.
Draughn, supra 76 Ohio App. 3d at 670, 602 N.E.2d 790.
Stark County, Case No. 2011-CA-00148 19
{68} In the case at bar, the comments by the prosecutor were invited by the
defense and the defense’s characterization of Josephine and Angela's testimony. The
defense portrayed Josephine as unworthy of belief and suggested Angela could be
easily confused.
{69} Based upon the evidence presented at trial, we find appellant is unable to
establish the outcome of his trial would have been different but for the prosecutor's
closing remarks.
{70} Finally, appellant contends that the prosecutor incorrectly stated that
appellant's semen was found in Angela Richards.
{71} However, evidence was presented that criminalist Creed was able to
chemically identify seminal fluid, a body fluid that women do not produce. Further, the
seminal fluid stain on the inside of appellant’s shorts was a mixture of his own and
Angela's.
{72} We find no error plain or otherwise. No misconduct occurred because of
the prosecutor's comments. Under these circumstances, there is nothing in the record to
show that the jury would have found the appellant not guilty had the comments
concerning semen, as opposed to seminal fluid and DNA, not been made on the part of
the prosecution. State v. Benge, 75 Ohio St.3d 136, 141, 1996-Ohio-227, 661 N.E.2d
227.
{73} Appellant’s Third Assignment of Error is overruled.
II.
{74} In his Second Assignment of Error appellant maintains he received
ineffective assistance of counsel. We disagree.
Stark County, Case No. 2011-CA-00148 20
{75} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{76} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both the deficient performance and prejudice prongs of Strickland and
Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d
251(2009).
{77} To show deficient performance, appellant must establish that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel
made errors so serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104
S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will
render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S.
at 688, 104 S.Ct. 2052 at 2065.
Thus, a court deciding an actual ineffectiveness claim must judge
the reasonableness of counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's conduct. A convicted
defendant making a claim of ineffective assistance must identify the acts
Stark County, Case No. 2011-CA-00148 21
or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then determine
whether, in light of all the circumstances, the identified acts or omissions
were outside the wide range of professionally competent assistance. In
making that determination, the court should keep in mind that counsel's
function, as elaborated in prevailing professional norms, is to make the
adversarial testing process work in the particular case. At the same time,
the court should recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Strickland v. Washington,
466 U.S. 668 at 689,104 S.Ct. at 2064.
{78} In light of “the variety of circumstances faced by defense counsel [and] the
range of legitimate decisions regarding how best to represent a criminal defendant,” the
performance inquiry necessarily turns on “whether counsel’s assistance was reasonable
considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689,104
S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.
{79} Appellant must further demonstrate that he suffered prejudice from his
counsel’s performance. See Strickland, 466 U.S. at 691, 104 S.Ct. 2066 (“An error by
counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment”). To
establish prejudice, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
Stark County, Case No. 2011-CA-00148 22
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. To prevail on his ineffective-assistance claim,
appellant must show, therefore, that there is a “reasonable probability” that the trier of
fact would not have found him guilty.
{80} Appellant maintains that he received ineffective assistance of counsel
when counsel failed to object to testimony from Josephine and Marcus regarding their
belief that appellant had victimized Angela prior to January 17, 2011 and the
prosecutor's reference to their testimony in closing argument. He further argues that his
counsel failed to object to the state's allegedly improper bolstering of witness credibility
and alleged misstatement of forensic evidence in closing argument.1
{81} “‘The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.’” State v. Fears (1999), 86 Ohio St.3d 329, 347, 715
N.E.2d 136, quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831.
{82} In Yarborough v. Gentry (2003), 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1,
the Supreme court noted,
When counsel focuses on some issues to the exclusion of others,
there is a strong presumption that he did so for tactical reasons rather
than through sheer neglect. See Strickland, 466 U.S., at 690, 104 S.Ct.
2052 (counsel is ‘strongly presumed’ to make decisions in the exercise of
professional judgment). Moreover, even if an omission is inadvertent, relief
is not automatic. The Sixth Amendment guarantees reasonable
competence, not perfect advocacy judged with the benefit of hindsight.
1
The argument that the prosecutor engaged in misconduct was discussed and rejected in our
disposition of appellant’s Third Assignment of Error which we previously addressed out-of order.
Stark County, Case No. 2011-CA-00148 23
See Bell, supra, at 702, 122 S.Ct. 1843; Kimmelman v. Morrison, 477 U.S.
365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, supra, at
689, 104 S.Ct. 2052; United States v. Cronic, 466 U.S. 648, 656, 104
S.Ct. 2039, 80 L.Ed.2d 657 (1984).
{83} In the case at bar, we have previously found the conduct of the prosecutor
did not deny appellant a fair trial. None of the instances of ineffective assistance raised
by appellant in the case at bar rise to the level of prejudicial error necessary to find that
he was deprived of a fair trial. Having reviewed the record that appellant cites in support
of his claim that he was denied effective assistance of counsel, we find appellant was
not prejudiced by defense counsel’s representation of him. The result of the process
was not unreliable nor was the proceedings fundamentally unfair because of the
performance of defense counsel. Appellant has failed to demonstrate that there exists a
reasonable probability that the outcome would have been different. Bradley, supra at
paragraph three of the syllabus.
{84} Appellant’s Third Assignment of Error is overruled.
IV.
{85} In his final assignment of error, appellant argues that the trial court abused
its discretion when it prevented him from cross-examining Josephine regarding a 1996
trafficking conviction.
{86} Evid.R. 609 governs the admission of prior convictions to impeach the
credibility of a witness. Subject to the threshold test of relevancy under Evid.R. 403,
Evid.R. 609 provides that evidence of prior convictions is "admissible if the crime was
punishable by death or imprisonment in excess of one year pursuant to the law under
Stark County, Case No. 2011-CA-00148 24
which the accused was convicted and if the court determines that the probative value of
the evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury." Evid.R. 609(B) states that such evidence is inadmissible if a period
of more than ten years has elapsed, "unless the court determines, in the interests of
justice, that the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect." Further, evidence of a prior
conviction more than ten years old "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."
{87} In the case at bar, appellant requested the trial court permit him to inquire
about Josephine's 1996 trafficking charge. However, appellant did not provide the state
with written notice in advance of his intent to question Josephine about the prior
conviction. Additionally, counsel stated he desired to use the conviction based solely on
his own assessment that "someone who is highly addicted to crack cocaine * * *, also
cheats, steals and lies.” When asked by the trial court what evidence he had to indicate
that Josephine was addicted to crack cocaine, counsel answered, "I just wanted to raise
it." (1T. at 121-122).
{88} The trial judge possesses broad discretion under Evid.R. 609 to determine
the admissibility of prior convictions for impeachment purposes. State v. Wright, 48 Ohio
St.3d 5, 548 N.E.2d 923(1990); State v. Goney 87 Ohio App.3d 497, 501, 622 N.E.2d
688(2d Dist.1993). Under the circumstances presented in this case, we do not find that
the trial court abused its discretion in refusing to admit evidence of the witness's prior
conviction for impeachment purposes.
Stark County, Case No. 2011-CA-00148 25
{89} Appellant’s Fourth Assignment of Error is overruled.
{90} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
WSG:clw 0214 HON. JULIE A. EDWARDS
[Cite as State v. Fether, 2012-Ohio-892.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOHN WAYNE FETHER :
:
:
Defendant-Appellant : CASE NO. 2011-CA-00148
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JULIE A. EDWARDS
State v. Fether
Combined Opinion