[Cite as State v. Cleary, 2011-Ohio-3725.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 24217

vs.                                               :    T.C. CASE NO. 10CR453

BEAU CLEARY                                        :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                        . . . . . . . . .

                                             O P I N I O N

                     Rendered on the 29th day of July, 2011.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine,                       Atty
Reg. No.0061560, P.O. Box 972, Dayton, Ohio 45422
     Attorney for Plaintiff-Appellee

Don Brezine, 188 West Hebble Avenue, Fairborn, OH 45324
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Beau Cleary, appeals from his conviction and

sentence for attempted rape.

        {¶ 2} In December of 2009, M.B. resided in an apartment in

Kettering, Ohio with her two young sons who were ages three years

and eighteen months.                During the prior summer months, M.B. engaged

in a relationship with Defendant, Beau Cleary.                         Since then,
Defendant had undertaken a relationship with another woman, who

was a friend of M.B.

     {¶ 3} On December 29, 2009, at around 9:12 p.m., Defendant

called M.B. and asked if he could come over and visit M.B.’s

children.    M.B. agreed, and Defendant later arrived at M.B.’s

apartment with his friend, Dustin Cooper.

     {¶ 4} M.B. and her three year old son were in the living room,

watching television.      M.B.’s eighteen month old son was upstairs

asleep.     Upon arriving, Cooper sat down on the couch while

Defendant   immediately    went    upstairs    and   used    the   bathroom.

Defendant came back downstairs, said something, and immediately

 went back upstairs.       Concerned about her younger son, M.B.

followed Defendant upstairs.

     {¶ 5} Defendant went into M.B.’s bedroom.        When M.B. tried to

remove Defendant from her bedroom, Defendant began kissing M.B.’s

neck, saying, “You know you want it.”         M.B. told Defendant he was

drunk and needed to leave.        Defendant then pushed M.B. onto the

bed, again telling her, “You know you want it.”             M.B. responded,

“No, you need to leave.”     A wrestling match ensued, and both M.B.

and Defendant fell off the bed onto the floor.

     {¶ 6} Defendant held M.B. down with one hand while pulling down

his pants and M.B.’s pants with his other hand.             Defendant then

attempted to insert his penis into M.B.’s vagina but was interrupted

by his ringing cell phone.        M.B.’s three year old son, who had
followed his mother upstairs and was in the bedroom and witnessed

this   incident,    began   hitting   Defendant   with   a   gallon   milk

container.    When Dustin Cooper came upstairs and entered M.B.’s

bedroom and attempted to remove the boy, the boy “threw a fit.”

  Cooper let go of the boy and left the bedroom.     Defendant finally

gave up and he and Cooper left.       Before Defendant left, he asked

M.B. if she was going to tell his new girlfriend about this incident.

 When M.B. indicated that she did intend to tell the woman about

it, Defendant threatened to come back the next night.

       {¶ 7} After Defendant and Cooper left, M.B. went to her next

door neighbor’s apartment for help.        She was shaking and crying

hysterically.      Police were called and M.B. was taken to Kettering

Medical Center for a sexual assault examination.                Samantha

Griffith, the sexual assault nurse, found three areas of redness

on M.B.’s cervix that she concluded were consistent with digital

penetration and caused by trauma.        DNA analysis of dried stains

found on M.B.’s neck and inner thigh showed a mixed DNA profile,

but Defendant was excluded as one of the contributors.

       {¶ 8} Defendant was indicted on one count of attempted rape,

R.C. 2923.02(A), 2907.02(A)(2), and one count of forcible rape,

R.C. 2907.02(A)(2).      Following a jury trial Defendant was found

guilty of attempted rape but not guilty of rape.         The trial court

sentenced Defendant to four years in prison and classified him

as a Tier III sexual offender.
     {¶ 9} Defendant appealed to this court from his conviction and

sentence.

     FIRST ASSIGNMENT OF ERROR

     {¶ 10} “IT IS ERROR FOR THE COURT TO ALLOW OVER A DEFENDANT’S

OBJECTION THE PROSECUTOR TO CROSS EXAMINE THEIR OWN WITNESS WITHOUT

FIRST HAVING THAT WITNESS CLASSIFIED AS HOSTILE.           FURTHER, IT IS

ERRONEOUS FOR A WITNESS TO BE CLASSIFIED AS A COURT’S WITNESS WHEN

THE COURT HAS NOT ASKED THE STATE TO IDENTIFY THE INCONSISTENCIES

AND WHEN THESE INCONSISTENCIES DO NOT IN FACT EXIST AND WHEN THE

PROSECUTOR ACTUALLY KNEW THAT THE CLAIM OF INCONSISTENCY IN THE

WITNESS WAS A RESULT OF THE DETECTIVE NOT FINDING THE WITNESS

CREDIBLE FOR HIS OWN REASONS, WHICH INCLUDE THE WITNESS’ REFUSAL

TO AGREE WITH WHAT THE DETECTIVE WANTED HIM TO SAY.”

     {¶ 11} Defendant argues that the trial court erred by declaring

Dustin Cooper, a witness called by the State, a court’s witness

pursuant    to   Evid.R.   614,   which   then   allowed   the   State   to

cross-examine and impeach its own witness via prior inconsistent

statements without showing surprise and affirmative damage as

required by Evid.R. 607.

     {¶ 12} Just prior to Defendant’s trial, the State filed a motion

requesting that Dustin Cooper be declared a court’s witness,

suggesting he had made inconsistent statements about the events,

 refused to give police a written statement, is a friend of

Defendant, and had shown hostility toward the State.          The State’s
motion did not identify the specific prior inconsistent statements

Cooper gave to police or the specific inconsistencies with his

anticipated trial testimony.

     {¶ 13} During the State’s direct examination of Dustin Cooper

at trial, Cooper denied telling police that he had gone upstairs

to use the bathroom while at M.B.’s apartment with Defendant.

Subsequently, the following occurred:

     {¶ 14} “Q.   I’m going to go back to February 3rd, 2010.      The

Detective came out to talk you again; is that correct?

     {¶ 15} “A.   Yes.

     {¶ 16} “Q.   And on that particular date, he asked you to write

out a statement again; is that right?

     {¶ 17} “A.   Yeah.

     {¶ 18} “Q.   And what did you – how did you respond?

     {¶ 19} “A.   I told him I didn’t feel why I needed to, I didn’t

see why I needed to write out a statement.        I mean it was kind

of a shock to me, he needed me to write out a statement and I didn’t

know what for.

     {¶ 20} “Q.   You didn’t ask if you should speak to a lawyer first?

     {¶ 21} “A.   Yeah.   I believe it did.

     {¶ 22} “Q.   Okay.   And what was his response?

     {¶ 23} “A.   I’m not sure.

     {¶ 24} “Q.   Okay.   You don’t remember him saying --
     {¶ 25} “MR. HARRISON: Objection --

     {¶ 26} “BY MR. MICHENER:

     {¶ 27} “Q.   – you’ve got to write out --

     {¶ 28} “MR. HARRISON: Objection.

     {¶ 29} “THE COURT: Counsel.     Approach.

     {¶ 30} (At sidebar)

     {¶ 31} “THE COURT: Is it time yet to decide on your motion to

have him declared a Court witness?

     {¶ 32} “MR. MICHENER: I believe so, Your Honor.   At this point

he’s denying making certain statements to the officer.       That’s

inconsistent with what he told the officer, so at this point I’m

asking to have him declared the --

     {¶ 33} “MR. HARRISON: Well --

     {¶ 34} “MR. MICHENER:   – Court’s witness.

     {¶ 35} “MR. HARRISON:      – he’s just – the only thing I’m

objecting to is you’re about to say the officer told him that was

– if he was going to lie, he needs a lawyer --

     {¶ 36} “MR. MICHENER: Well --

     {¶ 37} “MR. HARRISON:   – or something like that.

     {¶ 38} “MR. MICHENER:   – yes

     {¶ 39} “MR. HARRISON:   That’s all I’m --

     {¶ 40} “MR. MICHENER:   He asked if he should get a lawyer, I

guess we’ll – that he did say, ‘You can write out a statement.
And if you are going to lie then you should get a lawyer.    If you’re

going to tell the truth --

     {¶ 41} “MR. HARRISON:    Yeah, I just --

     {¶ 42} “MR. MICHENER:    – then write out a statement.’

     {¶ 43} “MR. HARRISON: I think that’s appealable.     I think it’s

mistrial to --

     {¶ 44} “MR. MICHENER:    On what basis?

     {¶ 45} “MR. HARRISON:    – to attribute – to gratuitously have

this – have the --

     {¶ 46} “MR. MICHENER: It’s a defendant’s action --

     {¶ 47} “MR. HARRISON:    – conversation --

     {¶ 48} “THE COURT: Well I haven’t heard – well, first of all,

we’re going to have a – declare this a Court’s witness, so you

may cross now, now to include a statement.      So because he can cross

now, you can ask him if he (indiscernible).

     {¶ 49} “MR. MICHENER: Your Honor, what I’m trying to get it.

 I’m trying to elicit the – what the officer said to see the effect

on the (indiscernible).      So in other words, the officer says ‘if

you are going to lie, then yeah, you need a lawyer.’     He then says,

‘I want a lawyer.’   That basically shows the effect on the listener.

     {¶ 50} “MR. HARRISON: I think that’s totally irregular.

     {¶ 51} “THE COURT: I’m just trying to think – well, I’ve never

heard it before, but it doesn’t mean it’s not a clever police tactic.
     {¶ 52} “MR. HARRISON: Well, if --

     {¶ 53} “MR. MICHENER: But, Judge, he certainly can argue to

the Jury what the relevance in that statement is, but the fact

that it was stated is what I’m trying to get in

     {¶ 54} “THE COURT: Yeah.

     {¶ 55} “MR. HARRISON: I don’t – you’re getting the testimony.

 You’re – get the testimony about a police officer, and that’s

to give authority, an implied authority to this guy who just makes

an off-the-wall statement, ‘Well if you’re going to lie,’ and,

‘better get a lawyer.’    And so he says ‘Well, I’ll go get a lawyer.’

 So now he’s lying.      I mean this is – this is just too far out.

 I mean it’s, you know, you could --

     {¶ 56} “MR. MICHENER:   Judge, the statement was made --

     {¶ 57} “MR. HARRISON:   – you could ask him if he was lying.

     {¶ 58} “MR. MICHENER:   He made the statement and then he reacted

a certain way.

     {¶ 59} “MR. HARRISON: The cop made the statement.

     {¶ 60} “MR. MICHENER: Well, and then he reacted a certain way,

and I think that’s relevant.

     {¶ 61} “THE COURT: I’m going to – because it is cross now, we’re

going to note your objection and anticipate after – well, I don’t

– I haven’t seen what his answer is going to be yet.

     {¶ 62} “MR. HARRISON: Well, let me --
     {¶ 63} “THE COURT: Then you make any other motion --

     {¶ 64} “MR. HARRISON:      – ask you this.   Why are we making this

the Court’s witness?

     {¶ 65} “MR.    MICHENER:    Because   he’s   making    inconsistent

statements.

     {¶ 66} “THE COURT: Yeah.

     {¶ 67} “MR. HARRISON: This is not inconsistent.        I mean, hell

he --

     {¶ 68} “MR. MICHENER: He just --

     {¶ 69} “MR. HARRISON:      – don’t even remember it.

     {¶ 70} “MR. MICHENER: He just     – if he says he doesn’t remember,

that is an inconsistent statement.          If you look at the rule,

claiming you don’t know, making a statement --

     {¶ 71} “THE COURT: Yeah.

     {¶ 72} “MR. MICHENER: – is the basis of that.

     {¶ 73} “THE COURT: That’s right.

     {¶ 74} “MR. HARRISON: All right.

     {¶ 75} (End sidebar)

     {¶ 76} “BY MR. MICHENER:

     {¶ 77} “Q.    Sir, I’m going to ask you again.     Do you remember

after you asked if you needed a lawyer, that the officer said if

you’re going to write out the truth, you don’t need a lawyer, but

if you’re going to write out a bunch of lies then you might want
to get one.     Do you remember that officer asking you that or saying

that?

     {¶ 78} “A.    Uh-huh.

     {¶ 79} “Q.     Okay.     Do you remember saying to him (sic), I think

I’m getting into – going to get an attorney then?

     {¶ 80} “A.    No.     I said I might need to speak with one.

     {¶ 81} “Q.    Okay.     At that point you didn’t want to write out

a statement, you wanted to talk to an attorney, correct?

     {¶ 82} Yeah.       I wasn’t sure why I was being asked to write out

a statement.”       (T. 197-202).

        {¶ 83} Evid.R. 614(A) provides:

        {¶ 84} “Calling by court.     The court may, on its own motion

or at the suggestion of a party, call witnesses, and all parties

are entitled to cross-examine witnesses thus called.”

        {¶ 85} A trial court may in the exercise of its sound discretion

 call individuals as witnesses of the court.            State v. Arnold,

189 Ohio App.3d 507, 2010-Ohio-5379; State v. Adams (1980), 62

Ohio St.2d 151.         The purpose of Evid.R. 614 is to allow the jury

to hear evidence that would be beneficial to the jury in performing

its fact-finding responsibilities and ascertaining the truth of

the matter.       Id.    However, it is error to declare an individual

a court’s witness, solely for the purpose of allowing the party

calling that witness to impeach the credibility of its own witness
by means of a prior inconsistent statement.         Arnold.     Doing so

improperly relieves the party of the burden specifically imposed

by Evid.R. 607(A) to first show surprise or affirmative damage.

       {¶ 86} The State never claimed surprise or affirmative damage

to its case with respect to Cooper’s testimony.     Instead, the State

alleged that Cooper was “making inconsistent statements” when he

testified that “he doesn’t remember” whether Detective Markowski

had made a statement to Cooper.        A lack of recollection is not

an inconsistency.       Furthermore, a witness’s recollection may be

refreshed, but through use of the witness’s own writings.         Evid.R.

612.     A simple assertion of a prior statement the witness allegedly

made is improper, absent an inconsistency with his trial testimony.

       {¶ 87} Where the basis of a motion to declare an individual

a court’s witness is that the witness’s trial testimony will

contradict prior statements the witness has made to police, the

court must be presented with and know the specific inconsistencies

involved in order to exercise its discretion in ruling on the

motion.     Here, the alleged specific prior inconsistent statements

Cooper made to police and the specific inconsistencies with his

trial testimony was not presented to the court, either in the

State’s motion to have Cooper declared a court’s witness or when

the    trial   court    granted   Defendant’s   motion   during   trial.

Accordingly, the trial court abused its discretion by declaring

Dustin     Cooper   a   court’s   witness,   allowing    the   State   to
cross-examine and impeach its own witness with prior inconsistent

statements Cooper made to police.

     {¶ 88} Defendant objected to the testimony the State wished

to elicit from Cooper, which is the subject of Defendant’s second

assignment     of   error.   However,    Defendant   failed   to   object

specifically to the State’s motion asking the trial court to

declare Cooper a court’s witness.       Any error in the court’s ruling

declaring Cooper a court’s witness has been forfeited, except for

plain error.    State v. Payne, 114 Ohio St.3d 501, 2007-Ohio-4642,

at ¶23.   We see no plain error in this case.

     {¶ 89} Defendant’s first assignment of error is overruled.

     SECOND ASSIGNMENT OF ERROR

     {¶ 90} “IT IS ERROR FOR THE TRIAL JUDGE TO ALLOW TESTIMONY (FIRST

IN THE FORM OF HERESAY [SIC] AND LATER BY DIRECT TESTIMONY OF

MARKOWSKI) OF AN OFFICER’S OPINION OF WHEN A PERSON IS LYING.

SUCH TESTIMONY AMOUNTS TO AN EXPERT OPINION WITHOUT QUALIFYING

THE OFFICER AS AN EXPERT.    FURTHERMORE, SUCH TESTIMONY HAS A HIGHLY

PREJUDICIAL EFFECT WHICH GREATLY OUTWEIGHS ANY PROBATIVE VALUE

IT MAY HAVE.    WHILE THE OFFICER’S STATEMENT MAY BE A ‘CLEVER POLICE

TACTIC’ TRIAL TRANSCRIPT P. 199, AS IT WAS CLASSIFIED BY JUDGE

SINGER, IT IS IN NO WAY PROOF OR DISPROOF OF A PERSON’S VERACITY.

 THE STATEMENT MADE TO THE WITNESS BY THE POLICE OFFICER WAS, ‘I

SAID IF YOU ARE SIMPLY GOING TO TELL ME THE TRUTH, WRITE OUT A

TRUTHFUL STATEMENT, YOU – THERE’S NO REASON TO HAVE A LAWYER.
BUT IF YOU’RE GOING TO LIE TO ME, YEAH, YOU BETTER TALK TO A LAWYER.’

 TRIAL TRANSCRIPT, P. 247:19-22.”

     {¶ 91} On February 3, 2010, Detective Markowski spoke with

Dustin Cooper for the second time about the events in this case.

 During that conversation, Detective Markowski asked Cooper to

provide a written statement.      Cooper asked Detective Markowski

if he should talk to a lawyer first.   At trial, Markowski testified:

     {¶ 92} “I said if you are simply going to tell me the truth,

write out a truthful statement, you – there’s no reason to have

a lawyer.   But if you’re going to lie to me, yeah, you’d better

talk to a lawyer.”    (T. 247).   Cooper said he was going to talk

to a lawyer and refused to provide a written statement at that

time.   (T. 248).

     {¶ 93} During the State’s prior direct examination of Dustin

Cooper, a sidebar conference was held during which the court and

counsel discussed, among other things, whether Cooper could be

asked about what Detective Markowski said to him regarding

providing a written statement.         T. 197-200.   The prosecutor

explained that he was trying to elicit what Detective Markowski

said to show its effect on the listener, Cooper.     Defense counsel

objected to that testimony, calling it appealable, a mistrial,

totally irregular, and too “far out.”

     {¶ 94} The trial court overruled Defendant’s objection and

allowed the prosecutor to elicit from Cooper what Detective
Markowski    said when Cooper asked if he should talk to an attorney.

 Later, when Detective Markowski testified, the prosecutor asked

him, without further objection from Defendant, what he told Cooper

when Cooper asked him if he should talk to a lawyer before providing

a written statement, and Markowski then related the statement he

made to Cooper quoted above.

     {¶ 95} The admission or exclusion of evidence rests within the

sound discretion of the trial court and will not be disturbed on

appeal absent an abuse of that discretion.     State v. Sage (1987),

31 Ohio St.3d 173.

     {¶ 96} “‘Abuse of discretion’ has been defined as an attitude

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482

N.E.2d 1248, 1252. It is to be expected that most instances of

abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or

arbitrary.

     {¶ 97} “A decision is unreasonable if there is no sound

reasoning process that would support that decision.        It is not

enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would

support a contrary result.”    AAAA Enterprises, Inc. v. River Place

Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
     {¶ 98} “‘Hearsay’ is a statement other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”        Evid.R.

801(C)).    “In cases in which words have independent legal

consequences, the words are relevant without regard to their truth,

and as such, statements are not hearsay, . . . (because) relevancy

attaches to the making of the statement rather than the truth of

the statement.”    Weissenberger’s Ohio Evidence Treatise (2010

Ed.), §801.8.

     {¶ 99} The credibility of every witness who testifies under

an oath to the tell the truth is always in issue.         Detective

Markowski’s statement that   “liars ‘lawyer-up’” was not offered

to prove its truth, but to attack Cooper’s credibility by showing

that he then said he wanted to talk to a lawyer.     The statement

was relevant for that limited purpose, Evid.R. 401, and was

therefore admissible.   Evid.R. 402.   The trial court did not abuse

its discretion in admitting the evidence for the limited purpose

of impeaching Cooper’s credibility.

     {¶ 100} Defendant did not request an instruction that the jury

should not consider Markowski’s statement for the truth of the

matter asserted.    Such an instruction would have exposed the

preposterous character of the State’s effort to impeach Cooper

on that basis.     Evid.R. 403(A) provides: “Although relevant,

evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.”   We believe all of those would

apply in this instance.     However, Defendant did not articulate

that particular objection.

     {¶ 101} The second assignment of error is overruled.

     THIRD ASSIGNMENT OF ERROR

     {¶ 102} “IT IS ERROR FOR THE COURT, IN THE PERSON OF A JUDGE

WHO WAS NOT THE TRIAL JUDGE, TO OVERRULE DEFENDANT’S MOTION FOR

A MISTRIAL, THE MOTION BEING BASED ON THE TRIAL JUDGE ALLOWING

HIGHLY PREJUDICIAL TESTIMONY OF A DETECTIVE’S STATEMENT WHEN SAID

DECISION BY THE FILL-IN JUDGE TO OVERRULE IS BASED ON THE FILL-IN

JUDGE FINDING THAT THE TRIAL JUDGE HAD, ‘IN HIS EVIDENTIARY RULINGS,

ALLOWED THAT TESTIMONY’ (TRIAL TRANSCRIPT P. 300) WHERE THE FILL-IN

JUDGE DID NOT REQUEST TO HEAR THE TRIAL JUDGE’S WORDS AND DID NOT

KNOW FROM THE RECORD THAT THE TRIAL JUDGE HAD DEFERRED RULING ON

DEFENDANT’S OBJECTION AT THE TIME IT WAS MADE DURING TRIAL AND

HAD NEVER ‘ALLOWED THAT TESTIMONY’ WITH AN EVIDENTIARY RULING.

TRIAL TRANSCRIPT P. 200.”

     {¶ 103} Defendant argues that the “stand-in judge,” Judge

Tucker, who was temporarily filling in for Judge Singer, who

presided over the trial in this case, abused his discretion by

ruling on Defendant’s motion for a mistrial without first reviewing

the record of the trial.

     {¶ 104} During the second day of deliberations the jury sent
a note to the trial court indicating that they were unable to reach

an agreement on a verdict.   At that time, Judge Singer, who presided

over the trial, was out of the office on other business.      In his

absence, Judge Tucker handled the issue.       Before Judge Tucker

brought the jury in to the courtroom, he discussed the matter

with counsel.     During that discussion, Defendant moved for a

mistrial on unrelated grounds, because the trial court had earlier

admitted the statement Detective Markowski made to Dustin Cooper

concerning whether Cooper should talk to an attorney before

providing a written statement to police.      Defendant argued that

Markowski’s statement indicated to the jury that if you seek a

lawyer, then you’re lying, and on that basis he was moving for

a mistrial.     Judge Tucker, without investigating the issue or

reviewing the record, ruled as follows:

     {¶ 105} “THE COURT: All right.    And obviously Judge Singer,

in his evidentiary rulings, allowed that testimony       --

     {¶ 106} “MR. HARRISON: Correct.

     {¶ 107} “THE COURT: and I certainly understand, Jack, why you

are at this point making the motion for a mistrial.       But on the

other hand, I’m simply going to confirm that which Judge Singer

has already done in allowing that testimony.    And based upon that,

I will obviously overrule the motion for a mistrial.

     {¶ 108} “MR. HARRISON: Of course.”   (T. 300)

     {¶ 109} The grant or denial of an order of mistrial lies within
the sound discretion of the trial court.   State v. Glover (1988),

35 Ohio St.3d 18.   Moreover, mistrials need be declared only when

the ends of justice so require and a fair trial is no longer

possible.   State of Franklin (1991), 62 Ohio St.3d 118.

     {¶ 110} A review of this record discloses that Defendant moved

for a mistrial simply to preserve that issue for appeal.      When

Judge Tucker voiced his understanding that defense counsel just

wanted to make his record, defense counsel    responded: “Right.”

 In any event, as we concluded in overruling the second assignment

of error, the error in the trial court’s ruling admitting Detective

Markowski’s statement to Dustin Cooper concerning whether Cooper

should talk to a lawyer before providing a written statement to

police was harmless beyond a reasonable doubt.        Accordingly,

Defendant’s motion for a mistrial lacked merit.       No abuse of

discretion on the part of Judge Tucker in overruling Defendant’s

motion for a mistrial has been demonstrated.

     {¶ 111} Defendant’s third assignment of error is overruled.

     FOURTH ASSIGNMENT OF ERROR

     {¶ 112} “IT IS ERROR FOR A JUDGE TO GIVE THE ‘DYNAMITE CHARGE’

TO THE JURY WHEN THAT JUDGE, HAVING NOT BEEN PRESENT AT TRIAL,

HAS NO BASIS FOR ASSESSING WHETHER AN IMPASSE REPORTED BY THE JURY

WARRANTS THAT CHARGE.   THE STAND-IN JUDGE, NOT BEING PRESENT AT

THE TRIAL, DID NOT KNOW THE COMPLEXITY OF THE ISSUES FOR THE JURY

TO DELIBERATE ON, THEREFORE, IT WAS AN ABUSE OF THAT STAND-IN
JUDGE’S DISCRETION TO USE HIS DISCRETION AT ALL.”

     {¶ 113} Defendant argues that the “stand-in judge,” Judge

Tucker, erred by giving the deadlocked jury the so called Howard

or “dynamite” charge, because he had no knowledge of the complexity

of this case which Defendant contends must be considered in

determining whether a supplemental charge is warranted.

     {¶ 114} Judge Singer was the presiding judge in this case who

heard all of the evidence presented at trial.          During the second

day of   deliberations, the jury sent a note to the trial court

indicating that they were unable to reach a unanimous verdict.

At that time, Judge Singer was out of the office because of another

commitment.       In his absence, Judge Tucker, who Defendant refers

to as the “stand-in judge,” ruled on the issue.

     {¶ 115} Judge Tucker discussed the matter with counsel for both

parties and indicated his intention to give the jury the so called

“dynamite” charge approved by the Ohio Supreme Court in State v.

Howard (1989), 42 Ohio St.3d 18, and which has been made a part

of Ohio Jury Instructions, CR429.09.         When asked by the court if

he had any objections, defense counsel responded, “No.”           At that

point Judge Tucker brought in the jury and gave them the Howard

charge that encourages a deadlocked jury to continue deliberations

and render a verdict if they can conscientiously do so.

     {¶ 116} In    Howard,   the   Ohio   Supreme   Court   rejected   the

traditional Allen charge (Allen v. United States (1896), 164 U.S.
492, 17 S.Ct. 154, 41 L.Ed.528), as a proper supplemental charge

to be given to juries that have become deadlocked on the question

of conviction or acquittal, because the Allen charge lacks balance

and is coercive upon minority jurors to agree with the majority

jurors.     In place of the Allen charge, the Supreme Court in Howard

fashioned    and   approved   a   new   supplemental      instruction   that

encourages a verdict if one can conscientiously be reached, and

is fairly balanced, asking all jurors to reconsider their opinions

in light of the fact that others do not agree.

     {¶ 117} Defendant concedes in his appellate brief that the

supplemental charge given to the deadlocked jury in this case by

Judge Tucker was given using neutral, non-coercive language that

comports    with   the   requirements    of   law   and   the   recommended

instruction set forth in Howard.        Defendant argues, however, that

Judge Tucker nevertheless erred by giving the supplemental Howard

charge because, not being the presiding judge at trial, he had

no knowledge of the simplicity or complexity of the case.

     {¶ 118} In support of his argument that the complexity of a

case plays a role in a trial judge’s determination of when the

“dynamite” charge is warranted, Defendant relies upon State v.

Maupin (1975), 42 Ohio St.2d 473, 487.          Defendant’s reliance is

misplaced.     An examination of that decision reveals that the

Supreme Court mentioned the simplicity of the issues the jury had

to determine, not as a factor that must be considered before a
supplemental instruction may be given to a deadlocked jury, but

rather as one of several reasons why the Supreme Court was rejecting

Maupin’s claim that the supplemental charge was prematurely given.

 Id., at p. 486-487.   We are not aware of any case law that requires

a trial judge to consider the simplicity or complexity of the issues

for   jury   determination   before   deciding   whether   to   give   a

supplemental Howard charge to a deadlocked jury.      We see no error,

much less plain error, on the part of Judge Tucker in giving this

deadlocked jury the supplemental Howard charge.

      {¶ 119} Defendant’s fourth assignment of error is overruled.

      FIFTH ASSIGNMENT OF ERROR

      {¶ 120} “THE DECISION OF THE JURY WAS ERRONEOUS AS IT WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.      THE EVIDENCE IN THIS CASE

WEIGHS HEAVILY AGAINST THE CONVICTION, AND THE JURY’S DECISION

WAS NOT CONSISTENT WITH THE EVIDENCE OFFERED AT TRIAL.”

      {¶ 121} “A weight of the evidence argument challenges the

believability of the evidence and asks which of the competing

inferences suggested by the evidence is more believable or

persuasive.    State v. Hufnagle (Sept. 6, 1996), Montgomery App.

No. 15563.    The proper test to apply to that inquiry is the one

set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:

      {¶ 122} “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 lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and

a new trial ordered.”       Accord: State v. Thompkins, 78 Ohio St.3d

380, 1997-Ohio-52.

      {¶ 123} The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of facts to

resolve.    State v. DeHass (1967), 10 Ohio St.2d 230. In State v.

Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:

      {¶ 124} “Because the factfinder . . . has the opportunity to

see   and   hear    the   witnesses,   the   cautious    exercise   of   the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial        deference   be    extended   to      the   factfinder’s

determinations of credibility.         The decision whether, and to what

extent, to credit the testimony of particular witnesses is within

the peculiar competence of the factfinder, who has seen and heard

the witness.”

      {¶ 125} This court will not substitute its judgment for that

of the trier of facts on the issue of witness credibility unless

it is patently apparent that the trier of facts lost its way in

arriving at its verdict.            State v. Bradley (Oct. 24, 1997),

Champaign App. No. 97-CA-03.

      {¶ 126} In arguing that the verdict is against the manifest

weight of the evidence and that the jury lost its way, Defendant
claims that there was no physical evidence linking him to the

alleged crime.    As for the testimony of the victim, Defendant

points out that the jury found him not guilty of rape, which suggests

that the jury did not believe the victim’s testimony that Defendant

penetrated her vagina with his fingers.    Yet, the jury had to find

the victim’s testimony that Defendant tried unsuccessfully to

penetrate her vagina with his penis credible in order to find him

guilty of attempted rape.    According to Defendant, this shows the

jury “lost its way.”

     {¶ 127} Defendant also points out that Dustin Cooper, who was

 sitting in the living room while Defendant and the victim were

upstairs together, testified that he didn’t hear any noise at all,

despite the victim’s claim that she and Defendant wrestled around

and fell onto the floor.    Furthermore, Cooper saw the victim when

she and Defendant came back downstairs, and noticed that she seemed

fine, was not crying or emotional, her hair wasn’t messed up, and

he didn’t see any red marks.

     {¶ 128} On the other hand, the victim’s testimony about what

transpired was corroborated by photos showing red marks on her

body, by the testimony of the sexual assault nurse who found

traumatic injury to the victim’s cervix consistent with digital

penetration, and by the testimony of the victim’s neighbors

regarding the victim’s highly upset and emotional state just after

the sexual assault occurred.
      {¶ 129} The jury did not lose its way in this case simply because

it chose to believe the State’s witnesses rather than Defendant’s,

which it had a right to do.      The credibility of the witnesses and

the weight to be given to their testimony were matters for the

trier of facts to decide.       State v. DeHass, supra.

      {¶ 130} Reviewing this record as a whole, we cannot say that

the evidence weighs heavily against a conviction, that the trier

of facts lost its way in choosing to believe the State’s witnesses,

or    that   a   manifest    miscarriage   of   justice     has   occurred.

Defendant’s conviction is not against the manifest weight of the

evidence.

      {¶ 131} Defendant’s fifth assignment of error is overruled.

       SIXTH ASSIGNMENT OF ERROR

      {¶ 132} “APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO

THE

      {¶ 133} UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10

OF THE OHIO CONSTITUTION.”

      {¶ 134} Counsel's performance will not be deemed ineffective

unless and until counsel's performance is proved to have fallen

below an objective standard of reasonable representation and, in

addition,        prejudice    arose   from      counsel's     performance.

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674.      To show that a defendant has been prejudiced by
counsel’s deficient performance, the defendant must affirmatively

demonstrate to a reasonable probability that were it not for

counsel’s errors, the result of the trial would have been different.

 Id., State v. Bradley (1989), 42 Ohio St.3d 136.

     {¶ 135} Defendant first claims that his counsel performed

deficiently because his questioning of the witnesses was inartful

and led to several objections that were sustained.            For example,

while cross-examining the victim, M.B., counsel referred to Dustin

Cooper by the wrong name and had to be corrected by the prosecutor.

 Defendant does not even argue, much less demonstrate, how these

mistakes by counsel prejudiced him.           Absent a demonstration of

a reasonable likelihood that the outcome of this trial would have

been different but for counsel’s errors, ineffective assistance

of counsel has not been demonstrated.

     {¶ 136} Defendant   next    claims     that   his   counsel   performed

deficiently   by   failing      to   call    Defendant’s    girlfriend    to

corroborate his testimony that Defendant was not drunk, and to

contradict    M.B.’s denial that she told Defendant’s girlfriend

that the hospital found semen on her leg.            The record before us

in this appeal does not demonstrate what Defendant’s girlfriend

would have testified to had she been called as a defense witness.

 Accordingly, deficient performance by counsel in failing to call

her as a witness has not been demonstrated.

     {¶ 137} Finally, Defendant claims that his counsel performed
deficiently by failing to properly object (1) when the prosecutor

elicited from Dustin Cooper the statement Detective Markowski made

to Cooper in response to Cooper’s question whether he should speak

with a lawyer before providing a written statement to police, and

(2) when the “stand-in” judge gave the Howard “dynamite” charge

to the deadlocked jury.    As we discussed earlier in overruling

the second and fourth assignments of error, any error on the part

of the trial court in admitting Detective Markowski’s statement

to Cooper was harmless beyond a reasonable doubt, and the “stand-in

judge,” Judge Tucker, did not commit error, much less plain error,

by giving the deadlocked jury the supplemental “dynamite” charge

approved by the Ohio Supreme Court in Howard, supra.        Therefore,

defense counsel did not perform deficiently by failing to object

to those matters, and Defendant has failed to demonstrate that

he suffered any prejudice resulting from counsel’s failure to

object.    Ineffective    assistance   of   counsel   has    not   been

demonstrated.

     {¶ 138} Defendant’s sixth assignment of error is overruled.

The judgment of the trial court will be affirmed.



FAIN, J. And DONOVAN, J., concur.



Copies mailed to:

R. Lynn Nothstine, Esq.
Don Brezine, Esq.
Hon. Gregory F. Singer
