State v. Riffle
| Decision Date | 24 April 1996 |
| Docket Number | No. 17495,17495 |
| Citation | 110 Ohio App.3d 554,674 N.E.2d 1214 |
| Parties | The STATE of Ohio, Appellee v. RIFFLE, Appellant. * |
| Court | Ohio Court of Appeals |
Maureen O'Connor, Summit County Prosecuting Attorney, and Philip D. Bogdanoff, Assistant Prosecuting Attorney, Akron, for appellee.
Jeffrey D. Haupt, Canton, for appellant.
Craig Allen Riffle appeals from his convictions for two counts of rape, two counts of attempted rape, and two counts of gross sexual imposition. We affirm.
This case concerns allegations of sexual abuse made by Autumn M., who was twelve years old at the time of trial. Autumn's parents divorced when she was very young, and she lived with her mother after the divorce. When Autumn was seven or eight years old, she and her mother began living with Riffle. Riffle and Autumn's mother eventually married. Autumn continued to live with her mother and Riffle until 1993, when she moved to southern Ohio to live with her father and stepmother. Since that time, Autumn has occasionally returned to Akron to visit her mother.
In January 1995, Autumn told her stepmother and father that Riffle had sexually abused her. According to Autumn, the abuse began in 1990 and continued during the time that she lived with her mother and Riffle. The last incident occurred during the summer of 1994, when Autumn was visiting her mother and Riffle.
Soon thereafter, an Akron police detective interviewed Riffle. According to the detective, who testified at trial, Riffle admitted to sexual activity with Autumn. Specifically, Riffle claimed that on two separate occasions, Autumn exposed herself, unzipped his pants, and masturbated him. He admitted touching Autumn's breasts on both occasions, but denied engaging or attempting to engage in any oral or vaginal sex with Autumn.
Riffle was arrested and charged with two counts of rape under R.C. 2907.02(A)(1)(b), two counts of attempted rape under R.C. 2907.02(A)(1)(b) and 2923.02, and two counts of gross sexual imposition under R.C. 2907.05(A)(4). The rape charges specified that Riffle compelled Autumn to submit by using force or the threat of force. He pleaded not guilty, and the case proceeded to a jury trial. At the conclusion of the trial, the jury found him guilty of all charges, and the trial court sentenced him.
Riffle appeals, assigning two errors.
Riffle points to two specific incidents to support his argument that his trial counsel provided ineffective assistance. First, he claims that his attorney should have objected to allegedly inadmissible hearsay testimony from Autumn's therapist. Second, he argues that counsel should have moved for a mistrial after learning that the jury listened to part of a tape recording that had not been played in open court.
A defendant who raises a claim of ineffective assistance of counsel must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. We presume that counsel's conduct falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694; State v. Thompson (1987), 33 Ohio St.3d 1, 10, 514 N.E.2d 407, 416-417. Counsel's trial tactics generally do not suffice to support an ineffective assistance claim. State v. Carrion (1992), 84 Ohio App.3d 27, 32, 616 N.E.2d 261, 264-265.
We reject Riffle's argument as it pertains to trial counsel's failure to object. The failure to object is not a per se indicator of ineffective assistance of counsel because counsel may refuse to object for tactical reasons. State v. Gumm (1995), 73 Ohio St.3d 413, 428, 653 N.E.2d 253, 267. The failure of Riffle's trial counsel to object to the allegedly inadmissible testimony from Autumn's therapist, therefore, did not equate to ineffective assistance.
Riffle's second argument in this assignment of error concerns an audiotape that the state introduced at trial. At trial, the state played a portion of this tape, on which a telephone call was recorded. During the call, Autumn's father spoke first with Autumn's mother, then with Riffle. Only the conversation between Autumn's father and Riffle was played in the courtroom. In the jury room, however, the jury played the tape and heard not only that conversation, but also the conversation between Autumn's parents. Riffle contends that his trial counsel should have moved for a mistrial because the jury heard the extraneous material.
We cannot say that Riffle was prejudiced by trial counsel's failure to move for a mistrial. The transcript shows that Riffle's counsel considered the option, but decided against it:
Such a tactical decision was well within the range of competent assistance. Further, the trial court instructed the jury to disregard any part of the tape that was not played in open court. Because juries are presumed to have followed the court's instructions, State v. Johnson (1994), 71 Ohio St.3d 332, 340, 643 N.E.2d 1098, 1105-1106, the instruction cured any error arising from the jury's playing of the tape.
Riffle's first assignment of error is overruled.
Riffle contends that his convictions were against the manifest weight of the evidence because (1) the statement taken from Autumn by the investigating deputy did not contain material facts that Autumn later testified to in court; (2) the state did not provide any corroborating medical testimony; (3) Autumn's testimony was suspect because of an underlying motive to reunite her parents by destroying their new marriages; and (4) no evidence was presented regarding the use of force or threat of force.
This court has repeatedly stated the manifest weight standard of review as follows:
"In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten (1986), 33 Ohio App.3d 339, 340, 515 N.E.2d 1009, 1010.
While we must consider the credibility of witnesses, assessments of credibility are primarily for the trier of fact. State v. Loza (1994), 71 Ohio St.3d 61, 69, 641 N.E.2d 1082, 1096.
R.C. 2907.02 states:
R.C. 2907.01(A) defines "sexual conduct" to include vaginal intercourse and cunnilingus. Under R.C. 2907.02(B), a violator of R.C. 2907.02(A)(1)(b) who purposely compels the victim to submit by force or threat of force receives life imprisonment. Riffle was also convicted of two counts of attempted rape under R.C. 2907.02(A)(1)(b) and 2923.02(A), which prohibits a person from purposely or knowingly engaging in conduct which, if successful, would constitute or result in an offense. As for gross sexual imposition, R.C. 2907.05(A)(4) states that no person shall have sexual contact with another who is not the person's spouse and is under thirteen years of age. R.C. 2907.01(B) defines "sexual contact" as any touching of an erogenous zone of another person, including a female's breast.
Given these statutory standards, the jury did not clearly lose its way by finding Riffle guilty of the crimes charged. Autumn testified that beginning in 1990, when she was eight years old, Riffle repeatedly engaged in sexual activity with her. According to Autumn, the incidents followed a similar pattern. Riffle ordered Autumn to undress and get into bed, then tried to insert his penis into Autumn's vagina; however, he never succeeded in achieving penetration. Autumn testified that Riffle put his tongue in her vagina and squeezed and sucked on her breasts. She stated that the abuse happened "more than 20" times over the years, with the last incident occurring during the summer of 1994. She also said that the incidents occurred when her mother was at work. The state also called Autumn's father, stepmother, and therapist, all of whom testified regarding Autumn's recollections.
Most of Riffle's specific...
To continue reading
Request your trial
-
Sheffield v. State Of Ala.
...that the trial judge instructed the jury about the taped telephone conversation. (C. 32; 35455.) See, e.g., State v. Riffle, 110 Ohio App.3d 554, 557-58, 674 N.E.2d 1214, 1216 (1996) (holding that the failure of defense counsel to move for a mistrial, following the playing for the jury of a......
-
State v. Schroeder
...force are not necessary. See State v. Eskridge , 38 Ohio St.3d 56, 59, 526 N.E.2d 304 (1988) ; see, also , State v. Riffle, 110 Ohio App.3d 554, 561, 674 N.E.2d 1214 (9th Dist. 1996) ; Shadoan, supra .{¶76} In Shadoan, at ¶ 20, we noted the Eskridge court's explanation of required force as ......
-
Sheffield v. State
...the trial judge instructed the jury about the taped telephone conversation. (C. 32; 354–55.) See, e.g., State v. Riffle, 110 Ohio App.3d 554, 557–58, 674 N.E.2d 1214, 1216 (1996) (holding that the failure of defense counsel to move for a mistrial, following the playing for the jury of a tap......
-
State v. Shadoan, 2004 Ohio 1756 (Ohio App. 3/31/2004)
...are not necessary. See id. (citing State v. Eskridge [1988], 38 Ohio St.3d 56, 59, 526 N.E.2d 304) see, also, State v. Riffle (1996), 110 Ohio App.3d 554, 561, 674 N.E.2d 1214. As the Eskridge court {¶20} "The force and violence necessary to commit the crime of rape depends upon the age, si......