motion to dismiss — Goode v. Ohio

e—. ..--8

: i) RECEIVED

JAN 8 4991

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED SSPARRSCOURT, U.S.

BS

DECEMBER TERM, 1980

No. 80-5920

VICTOR E. GOODE,

APPELLANT

-vs-

STATE OF OHIO,

APPELLEE

AN APPEAL FROM THE SUPREME COURT OF OHIO

MOTION IN THE ALTERNATIVE TO DISMISS OR AFFIRM

William F. Schenck, Zsa.

Greene County Prosecutor

Greene County Court House

Xenia, Ohio 45385

Telephone (513) 376-5250

Counsel for Appellee

Steven D. Rowe, Esa.

Kemp, Schaeffer & Rowe Co., LPA

45 North Wilson Road .

Columbus, Ohio 43204

Telephone (614) 276-2678

Counsel for Appellant

“*

“se

TABLE OF CONTENTS

Motion in the Alternative to Dismiss or Affirm.........

Brief in Support of Motion in the Alternative to

Dismiss or Pg dh hx ue winds bak o0e bebe s co baebckee

OPAMOON TRO ahs 06s 6066s 0090055 hab dhe cb0e0ssecioscaac’

i eee Tee ee Tree ee rey Pry errr ey re

Constitutional ané@ Statutory Provisions.........eeceees

Statement Of the Case. cccccccccoccccccsccccccccccscccccs

AEQUMONE cocccccccccscecceccccscaccceesecccccccsceeeere

CRRCLELSORG OF OOCCLeR ec vicecocsvivcccvecosedcecsésesecepos

ee ee ar ene een ny ee tena ee

(Appellee's Memorandum Contra to a Motion for

Reconsideration, filed July 17, 1979)

2. Ww Bee ee

ae

CASES

TABLE OF AUTHORITIES

Paqe

Pointer v.. Texas, 360 O18. 400 (1964) wecccacees 3

State v. Cox, 42 Ohio St.2d 200 (1975)......... 3

State Vv. White, 35 Ohio St.2d 146 C1966) -ccccss 3,4,5

State v. Goode, slip opinion, Case No. CA 1025,

Greene County Ct. App. (April 24, 1979)........ 3

Davis v. Alaska, 415 U.S. 308 (1974).....e60505 3,4,5

Britt v. North Carolina, 404 U.S. 226 (1971)... 5

State v. Gardner, 59 Ohio St.2d 14 (1979)......

6

People v. McKenna, 585 P.2d 275 (Col. 1978).... 6

6

State v. Blue, 225 Kan. 576, 592 P.2d 897 (1979)

United States v. Kasto, 584 F.2d 268 (8th Cir.

1978), cert. denied, 440 U.S. 930 (1979) .ccccce 6,7

State v. Mastropetre, 400 A.2d 276, 281 (Conn.

eeeeoeneeveeeoeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeeee 7

People v. Thompson, 76 Mich. App. 705, 257 N.W.2d

ue App. | Are a ee eer re eee eee ee yi

Rozell v. Estelle, 554 F.2d 229 (Sth Cir. 1977),

Ceres Genser, G28 U8. 942 CIDTT ).c.. 0c ccvvecéecoe 7

CONSTITUTIONAL PROVISIONS

United States Constitution, Sixth Amendment.... 2,6

United States Constitution, Fourteenth Amendment 3

STATUTORY PROVISIONS

RULES

Ohio Revised Code, Section 2907.02(D)..csceeeuee 5,657

Ohio Juvenile Rule op | Re ee ee ee oe eee 3,38

Ohio Criminal Rule of Procedure 16(B)(1)(q).... 3,4,5

Federal Rule of Evidence 412. ....c.cccccccccceces 6

SECONDARY AUTHORITIES

Tanford and Bocchino, Rape Victim Shield Laws

and The Sixth Amendment, 125 U. Pa. L. Rev. 544,

ba ae hi eoeeeeuvueneneeeeeeeeeeeeeeeeeeeeeeeee 6

Rape Reform Leaislation: Is it the Solution?,

Be GhOTEs Ces ee CEs CSE LESTE ch icnéonscareas 6

oiio

-e

IN THE SUPREME COURT OF THE UNITED STATES

DECEMBER TERM, 1980

No. 80-5920

VICTOR E. GOODE,

APPELLANT

-vs-

STATE OF OHIO,

APPELLEE

MOTION IN THE ALTERNATIVE TO DISMISS OR AFFIRM

May it please the Court:

Appellee moves that the appeal herein taken be dismissed on

the ground that said appeal does not present a substantial federal

question.

BRIEF IN SUPPORT OF MOTION IN THE ALTERNATIVE TO DISMISS OR AFFIRM

OPINION BELOW

This is an appeal from a decision of tiie Supreme Court of

Ohio, which dismissed an appeal by the Appellant, thereby leaving

the Second District Court of Appeals decision intact. The final

Court of Appeals decision, rendered on April 15, 1980, was the

second decision by that Court. It followed a limited reversal and

remand to the trial court for the purpose of an in camera hearina

to determine whether the Appellant's constitutional rights had been

violated due to the inaccessibility to the Appellant of prior tes-

timony taken in a juvenile case.

The second appeal to the Second District Appellate Court

resulted in an affirmation of the Greene County Common Pleas

Court's decision, upholding Appellant's conviction. Thereafter,

the Ohio Supreme Court ruled that the appeal raised no substantial

constitutional questions and sua sponte dismissed the appeal in an

unreported decision. All relevant decisions of the state courts

were filed by Appellant in his Appendix to his Jurisdictional

Statement.

JURISDICTION

The jurisdictional requisites are adequately set forth in

the Appellant's jurisdictional statement.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Pertinent Constitutional and Statutory provisions are set

forth in the Appellant's jurisdictional statement.

STATEMENT OF THE CASE

Appellee does not take issue with the statement of the case

as set forth in the Appellant's jurisdictional statement except in

one aspect.

In Appellee's Memorandum Contra to a Motion for Reconsider-

ation filed on July 17, 1979, which concerned the question of

whether discrepancies existed between the testimony of the prosecu-

trix at trial and a ,cior juvenile trial, the prosecution did not

admit "that there was at least one discrepancy.” [Appellant's

Jurisdictional Statement, at 10]. The statement which was made by

the State was: "The State of Ohio conceded that the fourth alleaed

discrepancy may be viewed as a minor inconsistency, but certainly

not of the magnitude to constitute prejudicial error." [Appendix,

Memorandum Contra to a Motion for Reconsideration, at 3]. Although

Appellant has consistently stated that the Appellee agrees that

there are inconsistencies, the State of Ohio has stated that there

are none, and that if, arguendo, they were found to exist, they are

minor.

ARGUMENT

The basis of Appellant's two-pronged claim is that he was

denied his constitutional rights to confront and cross-examine wit-

nesses. Appellee readily acknowledges that those Sixth Amendment

Dia tte cate ae waaae . " anil sain sei r si white

ae

rights apply to the states through the Fourteenth Amendment.

Pointer v. Texas, 380 U.S. 400 (1964).

First, the Appellant asserts that he was denied his Sixth

Amendment riqhts when he was not given a transcript of the juvenile

proceeding of a co-defendant. The Appellee contends that, due to

the limited reversal and subsequent in camera inspection of the

juvenile trial, the Appellant's constitutional rights have been

addressed. There is, therefore, no further remedy necessary.

Initially, the trial court determined that Ohio's Juvenile

Rule 37(B) would bar the Appellant from obtaining a copy of the

testimony of two of the State's witnesses in a prior juvenile pro-

ceeding. Pursuant to State v. Cox, 42 Ohio St.2d 200 (1975), and

State v. White, 15 Ohio St.2d 146 (1968), the Second District Court

of Appeals held that the trial court had erred in not qranting an

in camera inspection of the juvenile record to determine whether

inconsistencies existed. It reversed and remanded to the trial

court, with instructions to order a new trial if the trial court

found that there were inconsistencies, and that those discrepancies

prevented the defendant from receiving a fair trial. State v.

Goode, slip opinion, Case No. CA 1025, Greene County Ct. App.

(April 24, 1979).

The law in Ohio is therefore consistent with the quidelines

set forth in Davis v. Alaska, 415 U.S. 308 (1974). Constitutional

rights of the criminal defendant cannot be submerged because of a

juvenile shield statute. State v. Cox, 42 Ohio St.2d 200 (1975).

In this case, Appellant is not claiming, however, that the

juvenile rule itself denied him the right of confrontation.

Rather, he is insisting that his remedy was unacceptable. Pointing

at a discovery rule, Ohio Criminal Rule of Procedure 16(B)(1)(q),

Appellant claims that he was entitled to the transcript if any

inconsistencies existed, reqardless of whether they were minor.

ae

Appellee submits that the Appellant's riqht to the use of a

prior juvenile trial transcript is not absolute. Procedurally,

Appellant is entitled to an in camera inspection and a hearing on

the evidence and alleged discrepancies. Such a procedure is man-

dated by State v. White, supra, and is not siaqnificantly altered by

the criminal rules. Here, the trial court specifically found that

the testimony in both transcripts was identical as to the elements

of the crime and factual description of the evening. Prior to the

triqgering of Criminal Rule 16(B)(1)(q), the Court must determine

that inconsistencies do exist.

Appellant's argument that the remedy granted by the appel-

late court was ineffective is unconvincing. There were no incon-

sistencies in the testimony. Most of the alleged discrepancies

were the result of out-of-context phrases lifted by the Defendant.

Assuming, arquendo, that there were any actual discrepancies, they

were so minor that the use of them could not possibly affect the

credibility of the prosecuting witness.

The situation in this case is not the one addressed in Davis

v. Alaska, supra, where the juvenile record itself would reveal

bias. Davis did not encounter a request for a juvenile transcript.

Here, the appellate court determined that Appellant's Sixth Amend-

ment rights would be adequately protected by the remand, and

Appellee submits that they were. Had discrepancies been found,

Appellant would have been qiven a new trial. It is apparent from

the appellate decision that, if such a situation were to arise in

the future, the trial judge must permit an in camera examination of

the juvenile transcript upon request of the defendant, and furnish

the defendant with the inconsistent testimony if any should exist.

Thus, the standard is set for the future, and it has not been

demonstrated that the Appellant has suffered any harm by the

remedial measure used.

“@

Appellant's reference to Britt v. North Carolina, 404 U.S.

226 (1971), is inappropriate in this case. Britt involved the

right of a criminal defendant to obtain a copy of his earlier trial

in order to prepare for a later one. While the Appellee will aaqree

with that right, it does not follow that a criminal defendant auto-

matically "needs" or is entitled to a transcript of a juvenile co-

defendant's trial. Davis v. Alaska, supra, suggests a balancing

test, and recognizes therein that a state does have a legitimate

interest in protecting the anonymity of juvenile records. The con-

stitutional rights of the defendant and the state's interests can

both be adequately protected by the prcceieres established by State

v. White, supra, and by the appellate court in this case.

Finally, the Appellee submits that the Ohio Supreme Court,

which established the Criminal Rules of Procedure, did not sub-

scribe to the Appellant's contention that Criminal Rule 16(B)(1)(q)

expanded the decision in State v. White, supra. Because there is

no attack on the constitutionality of Juvenile Rule 37, or Criminal

Rule of Procedure 16(B)(1)(q), and the Appellant's constitutional

rights were addressed in this case, there is no federal question

involved in this prong of the appeal.

Turning, then, to Appellant's second argument, Appellee will

further demonstrate that there is no reason for this Court to

accept jurisdiction over this case. Ohio's rape shield statute,

Ohio Revised Code, Section 2907.02(D), has been attacked by Appel-

lant as unconstitutional. Appellant attempted to introduce evi-

dence that the victim of the rape had been living with a man, that

she had intercourse with him five or six times a week, and that she

had previously had an abortion. The trial court would not permit

such evidence, relying upon the rape shield statute to exclude it.

Ohio's rape shield statute, as drawn and construed, requires

a balancing test to determine admissibility of sexual evidence,

ae

i.e., probative value versus prejudicial effect. O.R.C.

§2907.02(D); State v. Gardner, 59 Ohio St.2d 14 (1979). Te is, ts

essence, an evidentiary tool, and is similar to many state statutes

and Federal Rule of Evidence 412. See Tanford and Bocchino, Rape

Victim Shield Laws and The Sixth Amendment, 128 U. Pa. L. Rev. 544,

591-602 (1980). Such rules and statutes were enacted to protect

the victim from being senselessly subjected to examination concern-

ing irrelevant sexual history, and to aid the states and federal

government in prosecuting what has traditionally been the most

underreported crime---that of rape. State v. Gardner, supra. See

also, Note, Rape Reform Legislation: _Is It the Solution?, 24

Cleve. St. L. Rev. 463 (1975).

Obviously, there are times when the defendant's constitu-

tional rights will outweigh the inflammatory or prejudicial effect

of testimony. However, the Ohio statute is not inflexible: it

allows for a hearing on the proposed evidence.

It is not, and never has been, the right of any participant

in a trial to introduce irrelevant and highly emotional evidence.

People v. McKenna, 585 P.2d 275 (Col. 1978). The Sixth Amendment

right to confrontation does not encompass a right to introduce

irrelevant material. State v. Blue, 225 Kan. 576, 592 P.2d 897

(1979). As to the issue of consent, evidence of a victim's prior

unchastity is generally not probative, absent circumstances which

enhance its probative value. United States v. Kasto, 584 F.2d 268

(8th Cir. 1978), cert. denied, 440 U.S. 930 (1979). In this case,

the jury was made aware of the fact that the victim had been fiaght-

ing with her boyfriend, and that she was very distraught. There

was evidence that she was upset and that she wanted to get back to

him badly enough that she was willina to hitchhike from Columbus to

Oxford. Therefore, the jury knew what her mental state was on the

night of the rapes. Contrary to what the Appellant has claimed,

ae

evidence that the victim Sherlock had lived with her boyfriend,

that she had had intercourse with him with frequency, and that she

had had an abortion was irrelevant as to any of the issues in this

case, and would have been introduced only to inflame the jury

against the rape victim.

Under the facts of this case, the Appellant's constitutional

right to confrontation was not infringed upon by the application of

the statute in question. "The defendant's right to confront

witnesses against im is not absolute, but must bow to ‘other leq-

itimate interests in the criminal trial process. Chambers v.

Mississippi, 410 U.S. [284 at 295].'" State v. Mastropetre, 400

A.2d 276, 281 (Conn. 1978). Accord, People v. Thompson, 76 Mich.

App. 705, 257 N.W.2d 268 (Ct. App. 1977); United States v. Kasto,

Supra. See also Rozell v. Estelle, 554 F.2d 229 (Sth Cir. 1977),

cert. denied, 434 U.S. 942 (1977). Where, as here, other means are

available to impeach the witness, and are in fact used, exclusion

of the inflammatory evidence is not an infringement of the rights

of the defendant. It is no more relevant to inquire as to prior

sexual history of the rape victim in most cases than it is to

inquire about a robbery victim's prior donations to a family member

or friend.

As has been amply shown by this brief supportina a Motion in

the Alternative to Dismiss or Affirm, there is no reason for this ,

Honorable Court to proceed further with this case. The Supreme

Court of the State of Ohio did not err in dismissing the appeal,

because neither issue herein addressed by the Appellant raises a

substantial federal question. Clearly, no constitutional violation

has occurred, and the rape shield statute, Ohio Revised Code, Sec-

tion 2907.02(D), is not unconstitutional on its face or as applied.

Therefore, Appellee's motion to dismiss should be sustained.

Respectfully submitted,

a RAISIN - “eos nns.)

William F. Schenck

Counsel for Appellee

Greene County Court House —_

Xenia, Ohio 45385

Telephone: (513) 376-5250

~Ja

aoe

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foreqoing Motion in the

Alternative to Dismiss or Affirm has been forwarded, bv reqular

U.S. mail, to Steven D. Rowe, Counsel for Appellant, at Kemp,

Schaeffer & Rowe Co., LPA, 45 North Wilson Road, Columbus, Ohio

43204, on this Fin 8 day of January, 1981.

—

'i.MAEL DEwiIne

+ £CUTING ATTORNEY

*MEENE CovnTY

CounTwoues

“te, Or® eesee

575700

57-5290

IN THE COMMON | PLEAS -COURT »OF GROENE COUNTY, OHIO |

“ 7 ee i 4

ae |

STATE OF OHIO b

Case No. 77 CR 186

Plaintiff : !

VICTOR E. GOODE $ MEMORANDUM CONTRA TO A

MOTION FO RECONSIDERATION :

Defendant

2 SSA ORS O88 AOS OER TOE 0 Se ee bee ee

This case comes before this Court on remand by the Court |

of Appeals, Second Appellate Distzwict for review of the transcript

of testimony of Karen Sherlock, the primary prosecution witness

for the State of Ohio in the case of State v. Goode, 77 CR 186 and

State v. Mayes, 10109, Juvenile Division of the Common Pleas Court.

The purpose of this review is to determine whether or not certain

inconsistencies exist in the testimony of Karen Sherlock that

resulted in actual prejudice to the Defendant~Appellant denying

him a fair trial and due process of law. ;

The State of Ohio-.wil’ demonstrate that each and every

alleged “discrepency" or "inconsistency" in the testimony of

Karen Sherlock was taken out of context from the record as a whole.

In order of the Defendant's allegations, the first alleged in-

consistency is that Karen Sherlock cestified that the trial of

Victor Goode, that Victor Goode and Richard Mayes did not say

whether they would take her all the way to Oxford, Ohio. Defendant

contends that da page 5 of the transcript of the juvenile hearing

of Richard Mayes, Ms. Sherlock testified that they would take her

all the way to Oxford. On page 292-393 of the transcript of the

proceedings of Victor Goode, the following testimony was recorded:

BY MR. DEWINE:

Q. What conversaticn, if any, did you initally have

with them when you got into the car?

A. I told them I was goiny to Oxford and asked them

if they could take me part or all of the way.

APPENDIX ~ PAGE Y

“ICHAEL DEeWINE

+ SUTING ATTORNEY

“EaNE COUNTY

COURrMoues

tema, Ome aeze8

#795700

36-5290

Q. Did they respond in any way?

A. They said shey would.

Comparing the absve testimony with that on Page 5 of the

transcript of the juvenile hearing, it is clear that no discrepency

exists. At the trial of Victor Goude, Ms. Sherlock merely recanted

that Victor Goode and Richard Mayes agreed to give her a ride.

Karen Sherlock's testimony at the trial of Victor Goode was, at

best, a mere general affirmation ar.d lacked the specificity that |

exists on page 5 of the Zuvenile hearing transcript, but it

certainly cannot be viewed as an inconsistency.

The second alleged inconsistency pertains to Ms. Sherlock's

knowledge of the co-defendant's name. On page 6 of the juvenile

court transcript, Karen Sherlock testified that she learned the’

names while they were at Richard Mayes' house in Columbus.

BY MR. HALLER:

Q. Did you knew his name at this time?

A. Well, when he had gone into the house, the

other man in the car introduced himself and

then Richard Mayes. ie introduced both of

them. That was when I first learned their

names.

At page 405 of the transcript of the trial of Victor Goo

Karen Sherlock testified consistentiy with the Statements made i

juvenile court hearing; that is that Victor Goode introduced the

selves at the home of Richare Mayes in Columbus. Karen did test

at Goode's trial that she learned their first names, but at May:

hearing she did not state whether the Defendant gave both their

first and last names. This, again, cannot be viewed as an incon-

sistency because of the lack of preciseness in the juvenile hearing

The third discrepency the Defendant cites concerns the

nature of the conversations that took place on the way toward Xenia

On page 8 of the juvenile court trar.script, and page 399 of the

trial court proceeding, Karen specifically stated the same pieces

“ICHAEL DEeWINE

OSECUTING ATTORNEY

-naane County

coustwouss

+EMIA, ONO onsen

#79..\700

3%6-5230

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of information concerning Xenia. [In both transcripts it is

evident that the parties talked abcut the tornado and Karen's

past connection with the City of Xenia. No discrepency can be

said to exist pertaining to the nature of that conversation.

The State of Ohio concedes that the fourth alleged dis-

crepency may be viewed as a minor inconsistency, but certainly

not of the magnitude to constitute prejudicial error. Defendant

states on page 5 of his Memorandum in Support of Reconsideration

that Karen Sherlock testified at the juvenile hearing that she had

been sitting on the passenger side of the vehicle until they

reached McDonalds in Xen. However, Karen testified at the trial

of Mr. Goode that she sat between the co-defendants earlier that

morning when they stopped to Ppurcnase beverages. A careful review

of page 9 of the juvenile court transcript in conjunction with page

395 of the trial testimony will reveal no substantial difference

to constitute prejudicial error. The State of Ohio contends such

a discrepency is harmless error. Criminal Rule 52(A). In

determining whether it was harmless error, a reviewing court must

read the entire record, disregarding the objectional material. If

the error alleged is constitutional in nature and if the Court

finds that there is overwhelming evidence of the Defendant~Appellant

guilty, aside from the disputed material, then it must hold that

the error is not prejudicial but harmess beyond a reasonable doubt

and affirm the judgment of the trial court. Harrington v. Californi

395 U.S. 250 (1969); Chapman v. California, 386 U.S. 18 (1967). In

the case of non-constitutional error, the reviewing court must read

the record, disregarding the objectional material and then determina

whether or not this was "substantial" evidence of the Appellant's

guilt before it affirms or reverses the judgment of the trial Court.

State v. Davis, 44 Ohio App. 2d 335, 338 N.E. 2d 793 (1975). In the

case before this Court the Defendant Claims a constitutional error,

ot "Rh

MICHAEL DeWINE

nOSECUTING ATTORNEY

@nsena CounTy

CounTmouse

REMIA. OO 40300

79-5700

nes290

however, this one minor inconsistency does not withstand a test

for reversal or a new trial when examined against the multitude of

much more significant statements. ‘he Defendant-Appellant incurred

no prejudice from this one minor instance.

The fifth alleged discrepency concerns a statement hy

Victor Goode. On page 13 of the juvenile court transcript the

following colloquy took place:

BY MR. HALLER:

Q. So what happened then?

A. So, he continued on in this way, "Isn't there

something you could do? Just turn one of us

on and we will go on our way.”

Q. Who was saying this?

A. Victor Goode said that. He said, "Just turn

Rich on."

Q. Indicating who?

A. Richard Mayes. . .

When comparing the above testimony with page 406 of the

trial court transcript it is clear chat Karen Sherlock accurately

and consistently repeated the statements made by Victor Goode. As

a result no discrepency can be discerned from the testimony.

The sixth discrepency citec by the Defendant-Appellant,

concerning the motive of dressing in the rear of the vehicle,

presents a mystery to the prosecution. The State fails to under-

stand what the alleged conflicts said to exist between page 14

of the juvenile court trial transcript and the adult trial,

specifically, pages 408-410. Examination of these pages reveals

the identical revelation of events at both hearings.

| The seventh alleyed discrepency in the testimony of Karen

Sherlock, concerning Mr. Goode's request that Karen assist him in

obtaining an erection, is insignificant at best. See pages 410

through 415 of State v. Goode, and page 15 of State v. Mayes.

“ MAEL DEeWINE

ISECUTING ATTORNEY

Ontane counry

COURTHOVeS

*e 'A, OFFO 40808

57%5700

176-5290

Regardless of when the request for assistance came, whether it be

the first or second time Victor Goode was in the back seat with 7

Karen, it cannot be said to be of any great significance. The fact

of the matter is that Karen accurately revealed the events as they

took place. The shock and humiliation of being raped by the two

men is more than sufficient basis for allowing Karen to testify

as to what happened to the best of her recollection. The law is not:

so rigid as to require Karen to pinpoint the exact time this state- |

ment was made.

Finally, on page 29 of the juvenile court transcript,

© ee wee wae.

Defendant contends that Karen's testimony that Victor Goode made

no specific threats of force against Karen negates that element

of the crime charged. Karen Sherlock testified that she could not

specifically remember the threats of Victor Goode, however, the

purposeful compelling of Karen Sherlock to submit to sexual inter-

course with two men was the result of the fear of physical harm.

D+ Orce-ers anew ~<s -<-

The record reveals on pages 13-17, and 33 of the juvenile court

transcript and pages 408-412 of the adult trial the fear of

a

physical harm that Karen experienced. For example, Richard Mayes

said he would hurt her, kill her even, and force her to make a

decision by the time he finished his cigarette. Victor Goode

* '

tugged on Karen's injured ankle in nis attempts to get her in the

back seat. Both men instructed her to keep quiet and called her "ai.

bitch" while raping her. All of these instances viewed as a whole

indicate the fear that Karen experienced. She pleaded with them

to leave her alone but chose to submit-in an effort to save her

life.

As a result, viewing the record as a whole, both transcript

it is clear that the alleged inconsistencies are non-existent.

The Supreme Court found in State v. White, 27 Ohio st. 24 73, (1971)!

the record does not reveal that the inconsistencies or variations |

«M9/a jh

AkeVoline

(OUTING ATTORNEY

“LENE COUNTY

cOURTHOVeE

MIA, OWN® s0ne0

679.5700

176-3290

between the statements and evidence jenied the Appeallant a fair

trial. Applied to the case at bar, she record in this case does

not reveal that any inconsistency he:ween the testimony of Karen

Sherlock at Victor Goode's trial and at Richard Mayes’ hearing

constituted any prejudicial error. ‘what may be viewed as an

inconsistent statement is nothing move than harmless error. No

substantial rights of the Defendant were affected, nor was there

prejudice demonstrated.

For the above reasons the Stute of Ohio respectfully

requests this Court to affirm the co:viction and deny the

Defendant's request for a new trial.

Respectfully submitted,

re y ere ae

Michael DeWine

Prosecuting Attorney

Assistant Prosecuting Attorney

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been

forwarded to Mr. Steven Rowe, Attorney for Defendant, 45 North

Wilson Road, Columbus, Ohio 43204 this YI'* day of July, 1979

by regular U.S. Mail.