COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59223 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ANTHONY CARTER : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-240064 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN H. HIGGINS, ESQ. Cuyahoga County Prosecutor The York Executive Building GEORGE F. LONJAK, ESQ. 6315 Pearl Road, Suite 302 Assistant Prosecuting Attorney Parma Heights, Ohio 44130 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: Defendant-appellant, Anthony Carter, was indicted by the Cuyahoga County Grand Jury in a three-count indictment, to wit: one count of Aggravated Burglary (R.C. 2911.11); one count of Kidnapping (R.C. 2905.01); and one count of Rape (R.C. 2907.02). All counts of the indictment included a gun specification. Trial by jury commenced on January 22, 1990. On January 23, 1990, the trial court granted the appellant's motion for acquittal as to the count of Aggravated Burglary only. The jury, on January 25, 1990, returned guilty verdicts on the remaining two counts, Kidnapping and Rape, without the gun specifications. The trial court thereafter sentenced the appellant to a term of three (3) years to twenty-five (25) years on each count, to be served concurrently. The appellant now appeals his conviction and sentence. A careful review of the record compels affirmance. I. The appellant and Pamela Ballad ("the victim") met in 1986 when the victim was fifteen (15) years of age and a student at Lincoln West High School. The victim, in September, believed that she was "in love" with the appellant. However, she realized in May, 1987, that she no longer loved him based upon his treatment of her, including fighting with her, forcing her to make love, and infecting her with gonorrhea on many occasions. - 2 - Nevertheless, the victim conceived a child with the appellant in or around December, 1987. The victim gave birth to a daughter on September 13, 1988. The victim explained the reasons for her having conceived appellant's child even though she no longer loved him. She described her relationship with the appellant as one where the appellant kept her "in check". She elaborated on this description by testifying that if the appellant told her to do something, she complied with the request. If not, he would hit her. She, therefore, found it necessary to move in with her mother, sister, and brother while she was a student in the 10th grade. Even after the victim ended her relationship with the appellant, he continued to "fuss and fight" with her, argue with her, and force her to accompany him to his house by meeting her at a bus stop or school. He also visited his daughter, thereby remaining in contact with the victim. On May 13, 1989, the victim was living with her mother at 1259 East 112th Street, Cleveland, Ohio. She returned home between 11:00 and 11:30 p.m. from her job at the Euclid Square Mall Burger King. Accompanying her were a friend from school, Jimmy Perry, and her daughter, who the victim and Mr. Perry picked up from the victim's aunt's home. When they arrived, no one else was home. They watched television, looked at pictures, and the victim spoke to her mother on the telephone. - 3 - Fifteen to twenty minutes later, the doorbell rang. The victim received no response to her question, "Who is it?" The appellant appeared through the victim's mother's bedroom's door. The victim subsequently remembered that she had seen a basement window which led to the kitchen and to her mother's bedroom, open. She, therefore, believed that the appellant entered the home via the basement window. The appellant approached the victim and Mr. Perry and demanded why Mr. Perry was holding his daughter. The victim told the appellant to leave the home. The appellant slapped the victim in the face; she attempted to strike him back. He pushed her to the couch. She once again told him to leave. The appellant responded by saying, "If I shoot you in your head and shoot him in his head ***". The threat was accompanied by the appellant's brandishing of a black .25 automatic and the placing of it close to the victim's head. She recognized the weapon which she learned to be a .25 automatic from the appellant, as being carried by him on a previous occasion. Fearing the police, the appellant decided not to use the weapon. Instead, the appellant instructed the victim to get herself and their daughter ready to leave with him. The victim's refusal to comply resulted in the appellant striking her. Her striking back was met by punches to her chest. The victim then offered for him to take their daughter. Fighting back and forth ensued and the appellant forced the victim and their daughter out of the - 4 - house and into his car. The physical fighting continued along the way to the appellant's home. Once there, the victim was pulled into his home. She was pushed up the stairs to the den and then into his bedroom. The victim, upon realizing that the appellant's mother was home, called out for help. She received no response. The victim was thereafter taken to the basement where the fighting continued, and then brought back into the appellant's bedroom. The appellant locked the door. The appellant's gun was locked in the bedroom closet. He pushed the victim onto the bed; she fell to the floor. The appellant held her down by kneeling on her arms. He told her of his desire to have sex. He hit her when she said, "no". He proceeded to pull her pants down. At this point, the victim, who described herself as "dazed", scared, and unable to see or hear as a consequence of all of the fighting, continued to fight back. Her attempt failed, and the appellant engaged in sexual intercourse with her. The next thing the victim remembered was waking up in the morning, still on the floor. The appellant spoke to her, telling her he was sorry and that he just hated seeing her with someone else. The appellant then opened the door. The victim asked the appellant's brother-in-law, David Lee, to take her home. She arrived home between 8:00 and 9:00 a.m. on May 14, 1989. She telephoned the police. Before the police arrived, the appellant arrived at the victim's home with a Mother's Day card. - 5 - The victim refused to let him in; the appellant slid the card under the door. The appellant telephoned the victim after the arrival of the police and he spoke with one of the officers. Officer Eugene Drake of the Cleveland Police Department received a radio assignment to go to 1259 East 112th Street in connection with an assault on a female. He described the premises as if there had been a fight: chairs were turned up and clothes were all over. The victim, according to Officer Drake, looked terrible. She had bruises all over, and a couple of scratches. No photographs were taken of these bruises and scratches. He also observed that she was upset and had red eyes, indicating to him that she had been crying. The officer spoke with the appellant over the telephone during the time he was at the victim's home. The officer learned from the appellant that he never owned a gun, possessed a gun the evening before nor used force when engaging in sexual intercourse with the victim. Officer Drake then went to the appellant's home. He, however, only spoke with the appellant's brother. The car used to transport the victim from her home to the appellant's was then towed. Officer Drake returned to the victim's home. He then escorted her to the hospital. Officer Drake also had the opportunity to speak with Mr. - 6 - Perry./1/\ Mr. Perry subsequently made a statement to another investigating officer, Detective Richard Martin. Dr. Aurora DeJesus examined the victim when she was brought into the Urgent Care Center of Kaiser Hospital at approximately 1:47 p.m. on May 14, 1989. She completed the paperwork and the tests required by a rape kit. The victim complained of pain in her face, neck and chest. The doctor noted tenderness in the clavicle as the victim experienced pain when the doctor applied pressure at that location. An x-ray revealed no evidence of injury. The doctor observed no bruises on the victim. She also discovered no lacerations, bleeding, or tenderness in the genital area. Further, a test for gonorrhea was positive. Detective Richard Martin, a member of the City of Cleveland Sex Crimes -- Child Abuse Unit, was assigned to the victim's case on May 14, 1989. Detective Martin noticed no scratches or bruises on the victim's face or neck when he spoke to her on May 14, 1989. Joseph Serowick, a civilian scientific examiner in the Forensic Science Laboratory of the Cleveland Police Department, investigated the rape kit compiled from the examination of the victim. Test results revealed semen found on vaginal swabs, spermatozoa on vaginal smear slides and seminal fluid on underwear worn by the victim. /1/\ Mr. Perry was stationed in Colorado at the time of trial. Although he was subpoenaed and travel arrangements were made for him, Mr. Perry chose not to appear for trial. - 7 - David Lee, the appellant's brother-in-law, first saw the victim in the kitchen of the appellant's home between 8:30 and 9:00 a.m. on May 14, 1989. He did not observe any scratches or bruises on her person. After arriving home on May 13, 1989, between 11:30 p.m. and 12:00 a.m., he did not hear any unusual noises from the victim or the appellant's bedroom. The appellant's mother, Ima Shipp, went to bed at approximately 8:00 p.m. on May 13, 1989. She was awakened by the victim and the appellant coming upstairs. She did not see them otherwise. Mrs. Shipp shared a bedroom wall with the appellant and she did not hear any noises or calls for help from her son's room. The appellant, Anthony Carter, testified on his own behalf. On May 13, 1989, he arrived at the victim's home. Although he had keys to the home,/2/\ he had lost them. He therefore entered the home through an open side door. The appellant then asked who was holding his daughter and that he was there to take his daughter as was previously arranged by a telephone call at approximately 10:45 p.m. For no apparent reason, the victim pushed the appellant. He struck her. When he told the victim to put their daughter's coat on, the victim told him that she would willingly accompany him to his home. He denied ever owning a gun or possessing one on May 13, 1989. At his home, the victim willingly engaged in sexual intercourse with him. /2/\ The victim denied that she ever gave the appellant keys to her home. - 8 - The appellant painted the victim as a jealous and possessive woman. He referred to episodes where she would call the police and make up lies about him beating her. He admitted to slapping her a couple of times, and stated, "No, it is not", to the prosecutor's question, "There is nothing wrong with doing that when a woman gets out of line, is that right?" He remembered seven (7) or eight (8) physical altercations with the victim which he attributed to mistake or reflex, and that he was once in jail due to one of them. The victim telephoned the appellant on several occasions after the May 13th incident. She wanted to impress upon him the need to seek counseling for his behavior towards women. She learned of the availability of this counseling through her school. The appellant's mother confirmed that the phone calls took place and the substance of them. II. In his first assignment of error, appellant contends that: "THE TRIAL COURT ERRED IN ADMITTING IRRELEVANT EVIDENCE, INCLUDING EVIDENCE OF OTHER ACTS OF APPELLANT AND THUS VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION." Appellant argues that his right to due process of law was violated when the trial court erroneously admitted irrelevant evidence of "other acts". Specifically, he focuses on three subjects. First, the victim testified that the appellant transmitted gonorrhea to her on several occasions. Second, she testified about many episodes of being hit and forced to his home - 9 - by the appellant. Third, the victim testified about a problem of being forced to have sex with the appellant. Appellant thus asserts that there was "no permissible rationale" for admitting this "other acts" evidence and argues that it should have been excluded pursuant to Evid. R. 401, 402, 403(A), 404(B) and R.C. 2945.59. The appellant, however, failed to object to this testimony at trial. Absent an objection on the record, any claimed error is waived upon appeal. State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus; State v. Brown (1988), 40 Ohio St. 3d 277, 288-289. This court must, therefore, determine whether the admittance of this evidence constituted plain error. Crim. R. 52(B). Broom, supra. Plain error is only found where, but for the error, the outcome of the trial clearly would have been otherwise. See, e.g., State v. Long (1978), 53 Ohio St. 2d 91, paragraph two of the syllabus; State v. Greer (1988), 39 Ohio St. 3d 236. The record herein fails to demonstrate the existence of plain error. Evidence of other crimes, wrongs, or bad acts independent or unrelated to the offenses for which a defendant is on trial is generally inadmissible to show criminal propensity. See, e.g., State v. Williams (1988), 38 Ohio St. 3d 346, 351. The victim asserted that the appellant forced her to have sex with him on May 13, 1989. The appellant countered that they did have sex that evening, but the victim was a willing participant. The victim referred to the contracting of gonorrhea - 10 - as a reason for ending her relationship with him prior to May 13, 1989. The test for gonorrhea taken after the victim and appellant engaged in sex was positive. Both the victim and appellant testified about their "relationship" which included episodes of physical fighting. It, therefore, cannot be clearly stated that the outcome of the trial would have been otherwise without the introduction of this contested evidence since the test result and the appellant corroborated the testimony. Appellant continues his first assignment of error by asserting that: "I B. ANTHONY CARTER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL." He argues he was denied effective assistance of counsel by trial counsel's failure to object to the introduction of this evidence. Ineffective assistance of counsel requires proof that "counsel's performance has fallen below an objective standard of reasonable representation" and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St. 3d 136, paragraph two of the syllabus. The establishment of prejudice requires proof "that there exists a reasonable probability that were it not for counsel's errors, the result of the trial would have been different." Id., paragraph three of the syllabus. Arguably, one's trial counsel should object to the admission of "other acts" evidence. Nonetheless, the record herein fails to show, with reasonable probability, that the jury's verdict would have been different had trial counsel objected to the - 11 - evidence in question. The jury would have learned that the victim contracted gonorrhea from the appellant by the rape kit results. The jury would have learned, from the appellant himself, that he struck the victim on other occasions and found nothing wrong with doing so "when a woman gets out of line". Accordingly, appellant's first assignment of error is overruled. III. Appellant asserts in his second assignment of error that: "II. THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY WITH RESPECT TO THE LESSER INCLUDED OFFENSES OF ABDUCTION AND SEXUAL BATTERY TO THE PREJUDICE OF THE APPELLANT." The appellant cites State v. Thomas (1988), 40 Ohio St. 3d 213, wherein the court stated that a jury need not unanimously decide a defendant is not guilty prior to considering a lesser included offense. Appellant, therefore, argues that the trial court erred in instructing the jury to not consider the lesser included offenses of sexual battery unless they found him not guilty of rape, or abduction unless they found him not guilty of kidnapping. The appellant only technically objected to the giving of the lesser included offense instructions to the jury. In that objection, however, appellant did not clearly object to the substance of the charge as given to the jury. A review of the record fails to reveal an error, plain or otherwise, which prejudiced the appellant. The jury was instructed, "if you do not reach a verdict of guilty," you should - 12 - proceed to consider the lesser included offense. Considering that Crim. R. 32 requires criminal verdicts to be unanimous, the jury's verdict of guilty on both the kidnapping and rape counts technically ceased the jury's duty to consider abduction and sexual battery. Appellant's argument, therefore, lacks merit. His second assignment of error is overruled. IV. For his third assignment of error, the appellant contends that: "III. THE COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY ON THE DEFINITION OF KIDNAPPING DEPRIVED THE APPELLANT OF HIS CONSTITUTIONALLY GUARANTEED RIGHT TO A FAIR TRIAL." Appellant focuses on the trial court's failure to define the term "terrorize" when instructing the jury on the elements of kidnapping. Appellant argues that the lack of this definition freed the jury to "speculate" about the legal definition of the word, thereby depriving him of a fair trial. Appellant failed to object to the trial court's instruction on the kidnapping charge. A claimed error not objected to will not be noticed on appeal unless it rises to the level of plain error. See, State v. Underwood (1983), 3 Ohio St. 3d 12; State v. Cooperrider (1983), 4 Ohio St. 3d 226. Ohio Jury Instructions contains a definition for "terrorize" (505.01(A)). However, Ohio Jury Instructions also contains section 1.80, which states that a jury is presumed to know the meaning of common words. Definitions are required where a word - 13 - has a special or technical meaning in the law. The word "terrorize" is not a legal term. It is, therefore, not error to not define the term, but to allow the jury to give the common meaning to it pursuant to O.J.I. 1.80. Accordingly, appellant's third assignment of error is overruled. V. Appellant asserts in his forth assignment of error that: "IV. TRIAL COURT ERRED IN SENTENCING THE APPELLANT ON BOTH RAPE AND KIDNAPPING AS THESE CRIMES ARE ALLIED OFFENSES OF SIMILAR IMPORT." Appellant asserts that the crimes of kidnapping and rape were not committed separately nor was there a separate animus./3/\ He submits that since the jury found him not guilty of the gun specification, the jury could have believed that the victim voluntarily went with him to his home. He thus argues that the jury only found him to be guilty of kidnapping and rape once they arrived at his home, and he locked her in his room and forced her to have sexual intercourse, hence no separate animus or commission. Initially, it is noted that the jury did not have to find the appellant guilty of the gun specification in order to find him guilty of kidnapping. R.C. 2905.01 has no such requirement. /3/\ The state's argument that this assignment of error is moot because of concurrent sentencing has no merit. An error of this nature does not cause an enhancement of the appellant's jail term. However, an erroneous conviction may possibly cause unpredictable consequences. See State v. Law (Apr. 4, 1991), Cuyahoga App. No. 58326, unreported; State v. Franklin (Dec. 16, 1982), Cuyahoga App. No. 44532, unreported. - 14 - R.C. 2941.25 provides: "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. "(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them." The Ohio Supreme Court recognized in State v. Donald (1979), 57 Ohio St. 73, the similarity between the offenses of kidnapping and rape. The court, therefore, held that a dual conviction for kidnapping and rape is prohibited under R.C. 2941.25(A) where both crimes are "motivated by a single purpose and where both convictions rely upon identical conduct and the same evidence." Donald, supra. 75. In State v. Logan (1979), 60 Ohio St. 2d 126, the Ohio Supreme Court established the following guidelines for a court to determine whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each under R.C. 2941.25(B): "(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; "(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase - 15 - in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions." In the case sub judice, the evidence reveals that the offenses of kidnapping and rape were not allied offenses of similar import. The victim was forced to accompany the appellant to his home. Once there, the appellant forced the victim to various parts of his home. Eventually, at or about 2:00 a.m., the appellant forced the victim to his bedroom, locked the door and engaged in sexual intercourse. She remained in the bedroom until the next morning when the door was unlocked by the appellant. The victim was not merely restrained for the purpose of effectuating the rape. See, Law, supra; State v. Sherrills (Apr. 5, 1990), Cuyahoga App. No. 56777, unreported; State v. Cline (Feb. 28, 1980), Cuyahoga App. No. 40446, unreported. Therefore, we conclude that the trial court did not err in sentencing the appellant on both convictions as the offenses were not allied. See State v. Vines (Sept. 4, 1989), Cuyahoga App. No. 55693, unreported; State v. Lykes (Apr. 29, 1982), Cuyahoga App. No. 44018, unreported. Appellant's fourth assignment of error is overruled. VI. Appellant contends in his fifth assignment of error that: "V. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE." The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. - 16 - DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court, when addressing whether a verdict is against the manifest weight of the evidence, reviews: "*** 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." State v. Davis (1988), 49 Ohio App. 3d 109, 113. A review of the record reveals some inconsistencies in the testimony. Despite the inconsistencies, however, this court concludes that the jury could properly find that appellant committed kidnapping, a violation of R.C. 2905.01, and rape, a violation of R.C. 2907.02. Appellant's fifth assignment of error is overruled. Judgment affirmed. - 17 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. DAVID T. MATIA, P.J., and LEO SPELLACY, J., CONCUR. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .