{¶ 2} Thе evidence adduced at trial was that Howard was the stepfather of the victim. Howard began soliciting oral sex from the victim when she was in the sixth grade and only eleven years old. His behavior was еssentially the same each time. Howard would come into the victim's room, put his penis in her face, and say "suck it." This happened to the victim several times a week for almost five years. On at lеast one occasion, he gave the victim money and then took it back when she would not comply. Howard testified in his defense, denying any wrongdoing.
{¶ 3} Howard was charged with forty counts of importuning in violаtion of R.C.
{¶ 4} Howard appeals, аdvancing two assignments of error for our review. His first assignment of error states the following:
{¶ 5} "Alphonso Howard was deprived of effective assistance of counsel, thereby being deprived of a fair trial." *4
{¶ 6} Under this assignment of error, Howard argues that he was deprived of the effective assistance of counsel because his trial counsel failed to object to inflammatory and prejudiсial testimony, as well as inflammatory comments and questions by the prosecutor.
{¶ 7} To demonstrate ineffective assistance, a defendant must show that counsel's performance fell "below аn objective standard of reasonable representation." State v. Bradley (1989),
{¶ 8} Howard argues that the prosecutor zealously highlighted to the court that Howard masturbated in front of the child and that he allowed others to see his penis. He argues that masturbation and exhibiting one's pеnis, in and of itself, is not importuning as defined in R.C.
{¶ 9} Howаrd also argues that the testimony that Howard smacked the victim's behind when she was on the steps and that Howard peeped through the bathroom keyhole while the victim showered was irrelevant and рrejudicial. Howard contends that his attorney should have objected to this improper testimony.
{¶ 10} There is a strong presumption that licensed attorneys are competent and that the chаllenged action is the product of sound trial strategy. State v. Mullins (June 25, 1996), Franklin App. No. 96APA01-32, citing State v. Hamblin (1988),
{¶ 11} In this case, defense counsel did not object; however, the trial court is presumed to consider only reliable, relevant, and competent evidence unless it affirmatively appears to the contrary.State v. Waters, Cuyahoga App. No. 87431,
{¶ 12} Finally, under this assignment of error, Howard claims that during his cross-examination the prosecutor asked irrelevant questions, calculated to inflame the court. In particular, Howard complains about the questions regarding his conviction for domestic violence, in which his wife was the victim. In addition, Howard asserts that it was improper for the рrosecutor to question Howard about his prior rape conviction because it was more than ten years old. Howard argues that his attorney should have objected to the improper questions.
{¶ 13} The state argues that its questions during the cross-examination of Howard were proper impeachment material under Evid.R. 607, 609, and 611(B).
{¶ 14} The scope of cross-examination is within the sound discretiоn of the trial court. State v. Cassano,
{¶ 15} Evid.R. 607 allows a party to attack the credibility of a witness so long as the questioner has a reasonable basis for asking any question pertaining to impeachment that implies the existence оf an impeaching fact. Furthermore, Evid.R. 609(A)(2) allows "evidence that the accused has been convicted of a crime * * * if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice, of confusion of the issue, or of misleading of the jury." Finally, Evid.R. 609(B) states as follows:
"Evidence of conviction under this rule is not admissible if a period of more than ten yеars 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 рrejudicial effect." (Emphasis added.)
{¶ 16} With regard to Howard's prior conviction for domestic violence, the state was allowed to impeach Howard's testimony that he "gets along" with his wife. As for Howard's 1983 conviction for rape and kidnapping, we find that the trial court properly admitted this evidence. *7
{¶ 17} During cross-examination the trial court allowed the state to question Howard about his 1983 сonviction because he did not answer truthfully when he was asked whether he had ever demanded oral sex. The defense attorney objected to this evidence, but the trial court overruled the оbjection. The trial court stated the following:
"I told the state [at sidebar] to ask one more question to determine whether the defendant would answer truthfully to whether or not he had ever demanded оral sex, and I said that I would allow it [the prior conviction] in beyond the time period if he denied it [demanding oral sex] as purposes for impeachment."
{¶ 18} Howard had been convicted of kidnaрping and rape for "picking up" a young girl with his buddies, tying her up, putting a mask over her face, and demanding oral sex from her. Therefore, he was properly impeached with his prior conviction. Furthеrmore, when the trial court announced its decision, it noted that this case essentially came down to the credibility of the victim versus the credibility of the defendant.
{¶ 19} We find that Howard has failed to prove that his counsel's performance fell below an objective standard of reasonable representation and that he was prejudiced by such representation. Accordingly, Howard's first assignment of error is overruled.
{¶ 20} His second assignment of error states the following:
{¶ 21} "The admission of the aforestated [sic] objectionable testimony, interrogations, and statements were all plain error." *8
{¶ 22} Under this assignment of error, Howard argues that it was plain error to allow the prosecutor to ask irrelevant and inflammatory questions of him.
{¶ 23} "Error is not plain error unless the outcome of an accused's trial clearly would have beеn otherwise, but for the error. The standard for plain error is whether substantial rights of the accused are so adversely affected as to undermine the fairness of the guilt-determining process. Noticе of plain error is to be taken with the utmost of caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice." State v. Buehner, Cuyahoga App. 81722,
{¶ 24} Howard points to the same questions and testimony that we addressed under the first assignment of error. We find no plain error in this case; as such, Howard's second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. *9
SEAN C. GALLAGHER, JUDGE
COLLEEN CONWAY COONEY, P. J., and MELODY J. STEWART, J., CONCUR