[Cite as State v. Askew, 2012-Ohio-585.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96649 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

CLIFTON ASKEW

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-534808 

BEFORE: E. Gallagher, J., Blackmon, A.J., and Stewart, J. 

RELEASED AND JOURNALIZED: February 16, 2012 
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 ATTORNEY FOR APPELLANT

John F. Corrigan 

19885 Detroit Road, #335 

Rocky River, Ohio 44116 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Anna M. Faraglia 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

EILEEN A. GALLAGHER, J.: 

{¶1} Defendant-appellant Clifton Askew appeals convictions entered in the 

Cuyahoga County Court of Common Pleas. Appellant argues that the trial court erred in 

allowing the state to present hearsay testimony, that his convictions are against the 

manifest weight of the evidence, and that he was denied a fair trial due to prosecutorial 

misconduct. For the following reasons, we affirm. 

{¶2} Appellant was indicted on March 18, 2010, and charged with kidnapping 

in violation of R.C. 2905.01(A)(4) (Count 1), rape in violation of R.C. 2907.02(A)(2) 

(Count 2), and gross sexual imposition in violation of R.C. 2907.05(A)(1) (Count 3). 

Counts 1 and 2 included repeat violent offender specifications pursuant to R.C. 
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2941.149(A) and notices of prior convictions pursuant to R.C. 2929.13(F)(6). Appellant 

entered pleas of not guilty and the case proceeded to a jury trial on March 23, 2011. 

{¶3} It was the evidence at trial that on July 27, 2009, the victim, A.B., visited 

her friend L.S. at her home. A.B. had met L.S. at a family reunion in July of 2009. 

A.B.’s mother, S.B., testified that she was acquainted with appellant, the ex-husband of 

L.S.’s mother, and that appellant was present at the family reunion with L.S. S.B. 

testified that the day after the reunion she spoke with appellant who offered to take A.B. 

and L.S. to the mall for back-to-school shopping. 

{¶4} A.B. was dropped off at L.S.’s home by her mother. A.B. testified that in 

addition to L.S., another girl named C.P., L.S.’s mother and appellant’s ex-wife, B.A., 

and the appellant were present at the home that day. A.B., L.S., and C.P. used a 

computer in the basement of the home to chat on Myspace. 

{¶5} According to A.B., while the three girls were on the computer, appellant 

came down the stairs and used the bathroom in the basement. A.B. testified that when 

appellant came out of the bathroom, he blindfolded her, pulled her into a bedroom in the 

basement, and threw her onto a bed. Witnesses for the defense identified the bedroom 

in the basement as belonging to appellant. A.B. testified that appellant held her down 

on the bed and kissed her neck and face while putting his hand down her shirt, grabbing 

her chest. A.B. further testified that appellant put his hand down her pants and inserted 

his finger into her vagina. The attack ended when A.B. kicked the appellant who then 
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withdrew. A.B. retreated to L.S.’s room in the home and called her mother to pick her 

up. Various witnesses offered different times that A.B.’s mother arrived to pick her up 

but were consistent that it was after dark on that night. 

{¶6} A.B. did not immediately tell her mother what had occurred at L.S.’s home 

but rather confided in her friend V.W. V.W. told her own mother who confronted A.B. 

and S.B. Subsequently, S.B. contacted police and A.B. provided police with a statement 

of what had occurred. 

{¶7} On March 30, 2011, the jury returned a guilty verdict on all three charges 

in the indictment including the corresponding specifications. On April 5, 2011, the trial 

court held a sentencing hearing and merged appellant’s convictions under Counts 1 and 

2. The trial court sentenced appellant to a prison term of eight years on Count 2 and 

fifteen months on Count 3. The trial court ordered the sentences to run concurrent to 

one another. Appellant brought the present appeal, advancing three assignments of error. 

{¶8} Appellant’s first assignment of error states: “The trial court erred in 

allowing hearsay identification testimony of appellant.” 

{¶9} In addition to her testimony regarding the events of July 27, 2009, A.B. 

testified that prior to that date, but after she met L.S. at the family reunion and 

exchanged phone numbers, she began receiving phone calls from a blocked number. 

A.B. testified that an unnamed male identified himself as a detective and asked to speak 

with her mother. The male called at least seven times and admonished A.B. for having 
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sex. A.B. testified that during one of the calls, L.S. broke in on the call and identified 

the “detective” as her uncle. A.B did not tell her mother about the calls and eventually 

stopped answering calls from private numbers. L.S. did not testify at trial. 

{¶10} Appellant argues the trial court erred by allowing hearsay evidence to be 

introduced in the form of A.B.’s testimony regarding L.S.’s identification of the 

anonymous detective caller as her uncle. 

{¶11} Hearsay is defined in Evid.R. 801 as “a statement, other than one made by 

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth 

of the matter asserted.” Evid.R. 802 governs the admissibility of hearsay evidence and 

indicates that hearsay is inadmissible in the absence of an exception. 

{¶12} A trial court possesses broad discretion with respect to the admission of 

evidence, including the discretion to determine whether evidence constitutes hearsay and 

whether it is admissible hearsay. State v. Essa, 194 Ohio App.3d 208, 232-233, 

2011-Ohio-2513, 955 N.E.2d 429 (8th Dist.) at ¶ 124, citing State v. Graves, 9th Dist. 

No. 08CA009397, 2009-Ohio-1133, 2009 WL 653091, ¶ 4 (overruled on other grounds). 

Whether or not the declarant is available as a witness, Evid.R. 803(1) permits the 

admission of statements “describing or explaining an event or condition made while the 

declarant was perceiving the event or condition, or immediately thereafter unless 

circumstances indicate lack of trustworthiness.” 

{¶13} Therefore, of central concern to the admission of statements of present 
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sense impression is the temporal proximity of statements to the event at issue. This is so 

because “[t]he principle underlying this hearsay exception is the assumption that 

statements or perceptions describing the event and uttered [closely in time] to the event, 

bear a high degree of trustworthiness.” Graves at ¶ 4, quoting Cox v. Oliver Mach. Co., 

41 Ohio App.3d 28, 37, 534 N.E.2d 855 (12th Dist. 1987). 

{¶14} The key to the statement’s trustworthiness is the spontaneity of the 

statement; it must be either contemporaneous with the event or be made immediately 

thereafter. Essa, supra at ¶ 126. A minimal lapse of time between the event and 

statement indicates an insufficient period to reflect on the event perceived; the 

declarant’s reflection would detract from the statement’s trustworthiness. State v. 

Ellington, 8th Dist. No. 84014, 2004-Ohio-5036, 2004 WL 2340287, ¶ 10. “When the 

statement is the ‘product of reflective thinking rather than spontaneous perception,’ 

Evid.R. 803(1) does not apply.” Graves at ¶ 4, citing State v. Simmons, 9th Dist. No. 

21150, 2003-Ohio-721, 2003 WL 356281, ¶ 35-36. 

{¶15} The record reflects that the identification of the anonymous caller as L.S.’s 

uncle qualifies as a present sense impression. The statement was made 

contemporaneous with the event, the “detective’s” phone call to A.B., and reflects L.S.’s 

perception of the event without time for reflection. Based upon the circumstances 

presented, this court cannot find that the trial court abused its discretion in admitting this 

testimony. The testimony was admissible pursuant to the present-sense-impression 
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exception to the hearsay rules of evidence. 

{¶16} Appellant’s first assignment of error is overruled. 

{¶17} Appellant’s second assignment of error states: “Appellant’s convictions 

were against the manifest weight of the evidence.” 

{¶18} In evaluating a challenge based on manifest weight of the evidence, a court 

sits as the 13th juror, and intrudes its judgment into proceedings that it finds to be fatally 

flawed through misrepresentation or misapplication of the evidence by a jury that has 

“lost its way.” State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. 

As the Ohio Supreme Court declared: 

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. It indicates clearly to the jury that the party having the 

burden of proof will be entitled to their verdict, if, on weighing the 

evidence in their minds, they shall find the greater amount of credible 

evidence sustains the issue which is to be established before them. 

Weight is not a question of mathematics, but depends on its effect in 

inducing belief.” 

 * * * The court, reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and 

determines 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 and a new trial ordered. The discretionary 

power to grant a new trial should be exercised only in the exceptional 

case in which the evidence weighs heavily against the conviction. 

(Internal citations omitted.) Id. at 387. 

{¶19} This court is mindful that weight of the evidence and the credibility of 

witnesses are primarily for the trier of fact and a reviewing court must not reverse a 
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verdict where the trier of fact could reasonably conclude from substantial evidence that 

the state has proven the offense beyond a reasonable doubt. State v. DeHass, 10 Ohio 

St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of the syllabus. The goal of 

the reviewing court is to determine whether a new trial is mandated. A reviewing court 

should only grant a new trial in the “exceptional case in which the evidence weighs 

heavily against a conviction.” (Internal citation omitted.) State v. Lindsey, 87 Ohio 

St.3d 479, 2000-Ohio-465, 721 N.E.2d 995. 

{¶20} In support of his claim that the jury lost its way in convicting him, 

appellant cites inconsistencies in A.B.’s testimony and conduct, specifically that she 

never indicated to her mother or a social worker that she was vaginally penetrated by 

appellant. However, the record at numerous points reflects A.B.’s apprehension to 

discuss the matter with her mother. Furthermore, the social worker testified at trial that 

she could not recall if A.B. told her she was penetrated because the social worker did not 

get into those details with A.B. Appellant cites inconsistences between A.B.’s 

testimony regarding whether appellant removed his penis from his pants at any point 

during the attack and whether she received assistance in removing the blindfold after the 

attack. Although A.B. testified at trial that she could hear L.S. in the bedroom at the 

time of the attack, when questioned regarding the blindfold, A.B. clarified that the 

portion of her police statement indicating that L.S. helped her remove the blindfold was 

inaccurate. Regarding whether or not appellant at any point removed his penis from his 
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pants, A.B. testified that although she was blindfolded, she “thought” that appellant was 

going to pull his penis out and that was the point when she kicked him and he fled. 

{¶21} The present case turned on the credibility of the various witnesses and their 

conflicting accounts of the events of July 27, 2009. A.B.’s account of the attack was 

contradicted by witnesses presented by the defense. Geraldine Jones, a defense witness 

and friend of appellant, testified that she spent seven to eight hours with appellant that 

day and that he only left her presence four to five times for three to five minutes at a 

time. B.A., mother of L.S., and appellant’s ex-wife, testified that she spent the majority 

of the day cooking in the kitchen where the door to the basement is situated. She 

testified that appellant did not go down into the basement. Lamar Jackson, appellant’s 

nephew, testified that he resides at the home and he spent a portion of the day washing 

clothes in the basement. He saw the three girls on the computer in the basement but did 

not see an attack. Finally, C.P., a close friend of L.S. testified in direct contradiction to 

A.B. C.P. testified that appellant never came into the basement that day. C.P. did 

however contradict Lamar Jackson and testified that she did not see anyone doing 

laundry in the basement. 

{¶22} The trier of fact is in the best position to weigh the evidence and the 

credibility of witnesses. After reviewing the entire record, weighing all of the evidence, 

and considering the credibility of witnesses, we find that this was not the exceptional 

case where the trier of fact “clearly lost its way and created such a manifest miscarriage 
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of justice that the conviction must be reversed and a new trial ordered.” State v. 

Leonard, 104 Ohio St.3d 54, 68, 2004-Ohio-6235, 818 N.E.2d 229. 

{¶23} Appellant’s second assignment of error is overruled. 

{¶24} Appellant’s third assignment of error states: “Appellant was denied a fair 

trial due to prosecutorial misconduct.” 

{¶25} Appellant argues that the prosecutor engaged in misconduct by insinuating, 

without any basis, that appellant’s trial counsel met with witnesses for the purposes of 

fabricating testimony. The portions of the record cited by appellant do not support his 

contentions. 

{¶26} The test for prosecutorial misconduct is whether the prosecutor’s remarks 

were improper and, if so, whether they prejudicially affected substantial rights of the 

accused. State v. Bey, 85 Ohio St.3d 487, 1999-Ohio-283, 709 N.E.2d 484; State v. 

Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 

S.Ct. 592, 112 L.Ed.2d 596. A prosecutor’s conduct during trial cannot be grounds for 

error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch, 33 

Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). The focus of that inquiry is on the fairness 

of the trial, not the culpability of the prosecutor. Bey, supra.

{¶27} Our focus, upon review, is whether the prosecutor’s comments deprived 

appellant of a fair trial such that there is a reasonable probability that, but for the 

prosecutor’s misconduct, the result of the proceeding would have been different. State 
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v. Onunwor, 8th Dist. No. 93937, 2010-Ohio-5587, 2010 WL 4684717, at ¶ 42, citing 

State v. Loza, 71 Ohio St.3d 61, 78-79, 641 N.E.2d 1082 (1994), overruled on other 

grounds. 

{¶28} As stated above, the portions of the trial testimony to which appellant cites 

do not support his argument that the prosecutor insinuated that appellant’s attorney met 

with witnesses to assist them in fabricating testimony. The questioning by the prosecutor 

in the case sub judice does not approach the improper questioning found in the case cited 

by appellant, State v. Hicks, 194 Ohio App.3d 743, 2011-Ohio-3578, 957 N.E.2d 866, 

wherein the prosecutor without any factual basis asserted that defense counsel was 

telling witnesses in the hallway what to testify to. 

{¶29} Appellant further takes issue with comments made by the prosecutor during 

closing arguments. In general, prosecutors are given considerable latitude in opening 

statements and closing arguments. State v. Ballew, 76 Ohio St.3d 244, 255, 667 

N.E.2d 369, 1996-Ohio-81 (1996). In closing argument, a prosecutor may comment on 

“what the evidence has shown and what reasonable inferences may be drawn therefrom.” 

State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990), quoting State v. Stephens, 

24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). A prosecutor may not express his 

personal belief or opinion as to the credibility of a witness, the guilt of an accused, or 

allude to matters that are not supported by admissible evidence. State v. Smith, 14 Ohio 

St.3d 13, 14, 470 N.E.2d 883 (1984). 
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{¶30} The test for prejudice regarding prosecutorial misconduct in closing 

argument is “whether the remarks were improper and, if so, whether they prejudicially 

affected substantial rights of the defendant.” State v. Hessler, 90 Ohio St.3d 108, 125, 

2000-Ohio-30, 734 N.E.2d 1237, quoting Smith, supra at ¶ 14. 

{¶31} The wide latitude given the prosecution during closing arguments “does 

not ‘encompass inviting the jury to reach its decision on matters outside the evidence 

adduced at trial.’” State v. Hart, 8th Dist. No. 79564, 2002-Ohio-1084, 2002 WL 

450133, quoting State v. Freeman, 138 Ohio App.3d 408, 419, 741 N.E.2d 566 (1st 

Dist.2000). A prosecutor must avoid “insinuations and assertions which are calculated 

to mislead the jury.” Smith, supra at ¶ 14. An appellant is entitled to a new trial only 

when a prosecutor asks improper questions or makes improper remarks and those 

questions or remarks substantially prejudice the appellant. Smith, supra at ¶ 15. 

{¶32} Again, the portion of the state’s closing argument cited by appellant fails to 

satisfy the above standard. The prosecutor’s summarization of Geraldine Jones’s 

testimony, including her testimony that she met with appellant’s trial counsel at 

appellant’s home, did not exceed the prosecutor’s ability to comment on what the 

evidence has shown and what reasonable inferences may be drawn therefrom. 

Furthermore, unlike Hicks, the prosecutor in no way proposed that appellant’s counsel 

told Jones what to testify to and did not offer his personal belief or opinion as to the 

credibility of a witness. 
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{¶33} Appellant’s third assignment of error is overruled. 

{¶34} The judgment of the trial court is 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 be sent to said lower 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. 

 

EILEEN A. GALLAGHER, JUDGE 

PATRICIA A. BLACKMON, A.J., and 

MELODY J. STEWART, J., CONCUR