State v. Olvera-Guillen, Ca2007-05-118 (10-20-2008)State v. Olvera-Guillen, Ca2007-05-118 (10-20-2008)
OPINION
{¶ 1} Defendant-appellant, Jorge Olvera-Guillen, appeals his convictions in the Butler County Court of Common Pleas for rape and domestic violence. We affirm.
{¶ 2} Appellant and his girlfriend are illegal aliens from Mexico who have lived in
{¶ 3} Appellant arrived at the apartment around 3:00 a.m. His girlfriend was sleeping in their bedrоom with her two children. According to the girlfriend, appellant removed his clothes, ripped off her blouse, pulled her pants down, and engaged in forcible sexual intercourse with her. She claimed that, while forcefully penetrating her, appellant pulled her hair, bit her and asked “why does that hurt? How about me pulling your hair. I don‘t believe it hurts. You‘re a slut.” He also bit her neck. She testified that he asked her if she wanted him to stop, but she replied “no,” thinking that he would only hurt her more if she told him to stop. When finished, appellant threatened that if she went to the police, he would put drugs in her car so that she would be аrrested and
{¶ 4} Appellant‘s girlfriend further testified that the following morning appellant grabbed her hair again and engaged in anal intercourse with her. She stated that it was painful and she began to scream, but he put his hand over her mouth so the children would not wake up. When finished, he left for work in her car because the registration on his vehicle had expired. She called off work that day. According to appellant‘s girlfriend, that evening, while the children were watching a video, appellant raped her again. She said nothing and did not argue or resist because she did not want him to hit or insult her again.
{¶ 5} On December 19, she went to work at the Forest Park Chipotle. Her supervisor noticed scratches and bruising on her body and called the Fairfield Police to report the matter. Investigating officers obtained a statement frоm her, took pictures and transported her to Mercy Hospital for a sexual assault examination.
{¶ 6} Appellant was arrested on an initial charge of domestic violence. Upon waiver of his Miranda rights, appellant denied raping his girlfriend or causing any injuries. Appellant admitted arguing with her, but claimed the acts were consensual “make-up” sex.
{¶ 7} Appellant was charged with one count of rape in violation of
{¶ 8} Assignment of Error No. 1:
{¶ 9} “THE JURY VERDICT WAS AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 10} In his first assignment of error, appellant claims that his convictions are against both the sufficiency and manifest weight of the evidence. However, appellant‘s argument only attacks the credibility of the evidence. Appellant argues that the jury clearly lost its way in finding the testimony of his girlfriend credible. Evaluation of witness credibility is not proper on review for evidentiary sufficiency. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79, citing State v. Waddy (1992), 63 Ohio St.3d 424. When deciding a sufficiency of the evidence issue, a reviewing court will not substitute its evaluation of witness credibility for that of the jury. State v. Williams (1996), 73 Ohio St.3d 153, 165. Accordingly, appellant‘s assignment of error is limited to a review of the manifest weight of the evidence.
{¶ 11} Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other; weight is not a question of mathematics, but depends on its effect in inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. A court considering whether a conviction was against the manifest weight of the evidence must review the entire record, weighing the evidence and all reasonаble inferences, and consider the credibility of witnesses. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 39. The question is “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.” Id.; State v. Blanton, Madison App. No. CA2005-04-016, 2006-Ohio-1785, ¶ 7.
{¶ 12}
{¶ 13} Appellant contends that the sexual acts were consensual and the jury lost its way in convicting him of rape. Specifically, appellant claims that his version of the events is truthful and his girlfriend‘s testimony is not credible.
{¶ 14} Appellant‘s girlfriend testified that, after engaging in a heated argument at the restaurant, appellant raped her when he arrived home. She further stated that he raped her again on two other occasions that day. She stated that she did not thwart the activity due to the previous threats he made against her and her status as an illegal alien. The sexual assault examiner observed that the victim had a bite on her neck, scratches and bruises were visible on the neck, arm and thigh, redness was observed in the vaginal area along with extensive redness and swelling inside on the cervix.
{¶ 15} The jury was in a better position to view the witnesses, observe their demeanor, and assess their credibility, and was free to believe or disbelieve all, part or none of the testimony of the witnesses at trial. State v. Wood, Preble App. No. CA2005-11-081, 2006-Ohio-3781, ¶ 98; State v. Nichols (1993), 85 Ohio App.3d 65, 76; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. After reviewing the record, weighing the evidencе and all reasonable inferences, and considering the credibility of the witnesses, we cannot say that the jury clearly lost its way and that appellant‘s convictions must be reversed. Accordingly, we find appellant‘s conviction is not against the manifest weight of the evidence. Appellant‘s first assignmеnt of error is
{¶ 16} Assignment of Error No. 2:
{¶ 17} “THE TRIAL COURT ERRED IN FAILING TO EXCLUDE EVIDENCE UNDER EVID.R. 403(A).”
{¶ 18} In his second assignment of error, appellant argues the trial court erred by admitting evidence of previous bad acts in violation of
{¶ 19} A trial court‘s decision to admit or exclude evidence will not be reversed by a reviewing court absent an abuse of discretion. State v. Craft, Butler App. No. CA2006-06-145, 2007-Ohio-4116, ¶ 48. An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.
{¶ 20} Generally, “evidenсe of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or аbsence of mistake or accident.”
{¶ 21}
{¶ 22} Appellant urges that admission of the testimony was improper because it was elicited merely for the purpose of рroving that he previously abused his girlfriend and was acting in conformity therewith. Additionally, appellant argues that no exception for allowing the evidence is enumerated in
{¶ 23} The trial court in this case noted that the evidence was not being offered by the prosecution for character purрoses and provided a limiting instruction to the jury. The court recognized that the evidence was offered to show why appellant‘s girlfriend did not prevent him from sexually assaulting her. We find no abuse by the trial court. Further, we find that the concerns expressed in
{¶ 24} Assignment of Error No. 3:
{¶ 25} “THE MISCONDUCT BY THE ASSISTANT PROSECUTOR VIOLATED APPELLANT [sic] RIGHTS TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF
{¶ 26} In his third assignment of error, appellant alleges prosecutorial misconduct. Appellant argues the assistant prosecutor made inflammatory statements and improperly voiced personal opinions during the closing argument regarding witness credibility and appellant‘s guilt.
{¶ 27} In order reverse a conviction based upon prosecutorial misconduct, a defendant must prove that the prosecutor‘s comments were improper and that they prejudicially affected the defendant‘s substantial rights. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 62. The focus of an inquiry into allegations of prosecutorial misconduct is upon the fairness of the trial, not upon culpability of the prosecutor. State v. Hill, 75 Ohio St.3d 195, 203, 1996-Ohio-222, quoting Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940. The Ohio Suрreme Court has held that prosecutorial misconduct is not grounds for error unless the defendant has been denied a fair trial. State v. Maurer (1984), 15 Ohio St.3d 239, 266.
{¶ 28} Appellant directs this court to review several statements made by the prosecutor during closing argument. Specifically, appellant cites the following comments:
{¶ 29} “I аsk you which of those two narratives is reasonably true? Which of those is reasonable? The defendant‘s is laughable.”
{¶ 30} “The physical evidence in this case corroborates [the victim‘s] story. The conclusion of looking at all of that evidence, because you‘ve been given two stories, one оf them is not credible. And one of them is credible, corroborated, reasonable, detailed, consistent and against her own self-interest as an illegal alien. There is only one conclusion to draw here, that [the victim] is not making this up.”
{¶ 31} “So you‘re going to go back there and look at all this evidencе and you‘re going to have two stories and you‘re going to weigh them and you‘re going to find that all the evidence is not even close. It tells you that [the victim] is a person you can believe. You can believe in this very most important affair and you can do it beyond a reasonable
{¶ 32} “You going with him and the story he tried to tell here and the way he told it? Or you going with her, and all of the facts that we‘ve talked about that tell you she is trustworthy?”
{¶ 33} Appellant argues these statements are improper personal opinions regarding the credibility of appellant‘s girlfriend. Additionally, appellant directs the court to the following statement by the prosecutor made during closing argument, which appellant argues is inflammatory:
{¶ 34} “You know there is a very good reason why that U-visa program is in place because without it, people like him, can have free rein. They rape, pillage and plunder a whole underclass of people in this country simply because they are illegal aliens, knowing full well that they in their perpetual fear factor and their state of paranoia are not going to go running to the police.”
{¶ 35} An attorney may not express a personal belief or opinion as to the credibility of a witness. State v. Williams (1997), 79 Ohio St.3d 1, 12. Vouching occurs when the prosecutor implies knowledge of facts outside the record or places his or her personal credibility in issue. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 117.
{¶ 36} At trial, appellant‘s counsel made no objection to the prosecutor‘s statements. Accordingly, our review is limited to plain error. Plain error exists where
{¶ 37} In reviewing the allegedly improper credibility comments, we cannot say that defendant would not have been convicted in the absence of the comments. Two of the remarks cited by appellant are presented in the form of a question to the jury, asking the jury to decide which of the conflicting accounts is “reasonable” and “trustworthy” in light of the evidence. A prosecutor does not express an opinion about witness credibility by asking jurors to decide for themselves whether the witnesses were being truthful. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 235. Further, each statement cleаrly referenced the evidence, and did not allude to any knowledge of facts outside the record by the prosecutor. It is not improper to make comments in the context of explaining why a witness’ testimony is or is not credible in light of the circumstances of the evidence, whether the prosеcutor neither implies knowledge of the facts outside the record nor places his or her personal credibility in issue by making such argument. Id. at ¶ 244-247,
{¶ 38} In regards to the inflammatory comment, the prosecutor‘s statement was unquestionably improper and this court does not condone the prosecutor‘s actions.1 However, in light of the evidence, we cannot say that appellant‘s conviction would be overturned absent the improper comment.
{¶ 39} Appellant‘s third assignment of error is overruled.
{¶ 40} Judgment affirmed.
WALSH, P.J. and BRESSLER, J., concur.