State v. Amyx

562 N.E.2d 508, 55 Ohio App. 3d 54, 1988 Ohio App. LEXIS 3958
CourtOhio Court of Appeals
DecidedOctober 5, 1988
DocketC-870729
StatusPublished
Cited by4 cases

This text of 562 N.E.2d 508 (State v. Amyx) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Amyx, 562 N.E.2d 508, 55 Ohio App. 3d 54, 1988 Ohio App. LEXIS 3958 (Ohio Ct. App. 1988).

Opinion

Hildebrandt, J.

Defendant-appellant, Harold Amyx, appeals from the judgment of the Hamilton County Court of Common Pleas in which he was convicted and sentenced on two counts of rape as proscribed under R.C. 2907.02. In this timely appeal, the appellant advances the following assignments of error:

“The defendant-appellant was substantially prejudiced as to his right to a fair trial by the ineffective assistance of his counsel.

“The defendant-appellant was denied a fair trial by the misconduct of the prosecuting attorney.

“The verdict and judgment were against the manifest weight of the evidence.”

For the reasons that follow, we find each of the assignments to be without merit, and we affirm the judgment of the court below.

The record discloses that in June 1986 the victim was residing alone in an apartment in downtown Cincinnati. The victim testified that on the evening of June 19, 1986, she encountered the appellant, whom she had met earlier that month at an establishment known as the “Subway.” The victim stated that the Subway was a gay bar, that she was a lesbian, and that she assumed that the appellant was gay because he frequented the Subway. The pair walked around downtown Cincinnati for approximately forty-five minutes, concluding their stroll at the victim’s apartment. At the appellant’s request, the victim admitted the appellant to her apartment for a glass of water. The victim then agreed to accompany the appellant to the Subway. When the victim left the appellant in her living room and went into her bedroom to change into more appropriate attire, the appellant followed her, grabbed her from behind, and pushed her onto the bed, where he forced her to engage in anal and vaginal intercourse. The appellant then left the apartment, and after approximately an hour, the victim regained her composure, dressed, and went to a nearby telephone booth to summon the police.

The appellant testified that, on the evening in question, he met the victim at the Subway and that they proceeded from there for a walk around town. In the course of the walk, the victim mentioned that she was out of work, prompting the appellant to suggest an exchange of sexual favors for money. The victim agreed, and the pair proceeded to the victim’s apartment, where they engaged in oral and vaginal intercourse. The pair then dressed and left the apartment together in search of an automatic teller machine. The appellant admitted that the search for a teller machine was a ruse by which he successfully eluded the victim, leaving her standing on a street corner.

On direct examination, appellant acknowledged a criminal history which included breaking and entering, aggravated burglary, forgery, theft, and *56 sexual battery. He stated that a few days after the events of June 19, 1986, he fled to Atlanta, Georgia, because of an outstanding warrant against him for passing bad checks. Appellant was apprehended in that city and returned to Cincinnati, where he was indicted on two counts of rape.

I

The appellant, in his first assignment of error, contends that he was deprived of the effective assistance of trial counsel and presents eight instances in support of his claim. The appellant also contends that the cumulative effect of the alleged instances of malfeasance and nonfeasance was sufficiently prejudicial to have denied him a fair trial. We find the first assignment of error to be without merit.

To begin our analysis of this assignment of error, we note that it is incumbent upon this court to determine whether defense counsel violated an essential duty owed to the appellant and whether the appellant was thereby prejudiced. See Strickland v. Washington (1984), 466 U.S. 668; State v. Cooperrider (1983), 4 Ohio St. 3d 226, 4 OBR 580, 448 N.E. 2d 452.

A

The appellant’s first argument is that his trial counsel permitted the seating of eight women and only four men on the jury panel. It is the appellant’s contention that, as a general rule, female jurors tend to be more likely to convict a male charged with the rape of a female than are male jurors. The appellant does not cite any authority for this proposition, and it is not supported by the record of this case. Rather, the notion that defense counsel should have attempted to exclude women from the venire systematically runs afoul of the spirit of the mandate against the exclusion from jury service of members of an identifiable group, which the United States Supreme Court enunciated in Batson v. Kentucky (1986), 476 U.S. 79.

The appellant also objects to defense counsel’s use of a peremptory challenge to remove a potential male juror who was replaced by a prospective female juror. Upon reviewing the record, we note that the male juror previously had been the victim of a crime and had daughters who were the same age as the victim. We cannot say that counsel improvidently exercised their peremptory challenge when they excused the male juror.

B

The appellant next asserts that counsel’s cross-examination of the victim was inadequate. The record does not support this assertion.

Certainly, the cross-examination of a rape victim must be accomplished with the utmost care. Counsel must establish the pertinent points that are the object of the cross-examination, while at the same time he must not appear to be badgering the witness in the eyes of the jurors. Our review of counsel’s cross-examination of the victim does not corroborate the appellant’s claims of ineffectiveness. The victim’s prior convictions for passing bad checks and her sexual preference had been established by the state during its direct examination. Defense counsel challenged the victim on inconsistencies between her trial and preliminary hearing testimony and questioned her concerning the defense’s theory of the case, viz., consensual relations for which the appellant failed to compensate the victim, thereby successfully laying the groundwork for the apr pellant’s defense.

C

The appellant also cites as ineffective defense counsel’s stipulation to a criminalist’s report which indicated the presence of semen in the cut-off shorts that the victim testified to wear *57 ing before, but not after, the attack. We find no prejudice to the appellant because the presence of semen in the victim’s clothing substantiates appellant’s contention that the victim wore the shorts when she accompanied him in search of a teller machine. Further, contrary to the appellant’s contention, defense counsel emphasized this contradiction during closing argument.

D

The appellant complains next that counsel’s cross-examination of the physician who examined the victim subsequent to the attack was inadequate. The appellant’s contention is unfounded. Counsel established that the victim’s complaints of rectal pain were subjective.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
562 N.E.2d 508, 55 Ohio App. 3d 54, 1988 Ohio App. LEXIS 3958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-amyx-ohioctapp-1988.