COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59311 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WILLIAM HOLBERT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-243597. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Warren L. McClelland, Esq. Assistant Public Defender Room 307, Marion Building Cleveland, OH 44113 -2- MATIA, J.: In the instant case, defendant-appellant William D. Holbert appeals the Cuyahoga County Court of Common Pleas conviction and sentence for rape. Appellant argues that his conviction was not supported by sufficient evidence and that the verdict was against the weight of the evidence. We disagree, and affirm the verdict and sentence of the trial court. THE FACTS The alleged rape of then 15-year-old Melissa Scott occurred on the night of August 21, 1989. The State of Ohio presented nine witnesses in its case against the appellant, William Holbert. Melissa Scott's Testimony: Ms. Scott testified to the following facts: On August 21, 1989, she was living in Garfield Heights, Ohio, with her father (Lawrence Scott), her father's girlfriend (Peggy Adkins), Peggy's sister (Joyce Ware), Melissa's two brothers (Larry and James), and her sister (Stacey). In the late afternoon of that date, at approximately 4:30 p.m., all of them went to the west side of Cleveland to visit Roger Holbert's home. Appellant Holbert was at Roger's home when they arrived. The adults were drinking at Roger's house. They later left (Ms. Adkins, appellant Holbert, Lawrence Scott and Ms. Ware) and returned to Roger's house several hours later. Upon their return, Melissa, Mr. Scott, Ms. Adkins, James, Larry -3- and Stacey went back to their home in Garfield Heights, arriving sometime after 11:00 p.m. Mr. Scott instructed Melissa to turn down the couch and make a bed for Ms. Ware. Shortly thereafter, Ms. Ware and appellant Holbert arrived at Scott's house. Melissa informed Ms. Ware that she could sleep on the couch. Melissa then left and went up to the third floor to her bedroom. Melissa testified that later that night she was awakened by the appellant who was on top of her. She stated that appellant Holbert threatened to physically harm her and her father. He pinned her down and then proceeded to rape her. She stated that appellant Holbert then left and she heard his truck leave shortly after that. Melissa then testified that she went to the bathroom where she was discovered by Joyce Ware, appellant's date for the evening. Ms. Ware urged Melissa to tell her father what had happened. Melissa immediately went to her father's bedroom, awakened him and told him what happened. Mr. Scott called the police, who arrived within minutes. Melissa was taken to the hospital by the police, accompanied by Peggy Adkins, her father's fiancee. Peggy Adkins' Testimony: Ms. Adkins corroborated Melissa's testimony. She stated that she, Mr. Scott, appellant Holbert and Joyce Ware were out together on the night in question visiting Scott's cousin and going to a bar. She testified that a considerable amount of -4- drinking took place. She stated that after returning to Scott's home, they went to bed, appellant and his date on the couch, she and Scott in the second floor bedroom, and Melissa on the third floor. Ms. Adkins stated that she and Scott were awakened by Melissa's pounding on their bedroom door. Adkins testified that she accompanied Melissa to the hospital, and subsequently to the police station with Scott. Joyce Ware's Testimony: Ms. Ware testified that on the night in question she went with appellant as his date for drinks with Scott and Adkins. They then returned to Scott's house where she was informed by Melissa that she could sleep on the sofa bed. Ms. Ware testified that she had sexual relations with appellant Holbert. She stated that Holbert then went upstairs to use the bathroom. After he returned, he stated that he had to leave. He dressed and left the house in his truck. Ms. Ware then testified that she found Melissa in the upstairs bathroom very upset. Melissa told her Holbert had raped her. She told Melissa to tell her father that appellant Holbert had raped her. Larry Scott's Testimony: Mr. Scott, Melissa's father testified that appellant Holbert, his first cousin, had helped him to move from Georgia to Cleveland several months earlier. Mr. Scott stated that in the move to Cleveland, Melissa rode alone with appellant for the -5- entire trip. On the night in question, Scott testified that he was awakened by Melissa knocking on his bedroom door, and that she told him that she had been raped by appellant Holbert. Scott stated that he called the police and Holbert. Officers Thomas Harvan's and Beth Shipman's Testimony: Officer Harvan of the Garfield Heights Police Department testified that he responded to Mr. Scott's telephone call. He stated that he transported Melissa to Marymount Hospital and stayed until he received Melissa's rape test kit. Officer Shipman stated that she attempted to locate appellant Holbert at both his residence and at his place of work, but to no avail. Lieutenant Jerry Senger's Testimony: Lieutenant Senger of the Garfield Heights Police Department, testified that he was the supervising officer the night of the incident. He testified that he dispatched officers to pick up appellant and had evidence collected and pictures taken of Melissa's bedroom and other evidence. James Wurster's Testimony: James Wurster of the Bureau of Criminal Investigation, testified that he tested the rape kit and evidence. He found semen present in the vaginal and anal swabs and on the sheet and panties of Melissa Scott. Dr. Vijokinda Patel's Testimony: Dr. Patel, emergency room physician at Marymount Hospital, -6- testified that he examined Melissa on August 22, 1989, and took samples for her rape kit. On cross-examination, Dr. Patel related that Melissa had no obvious physical injuries, and that she told him that no oral and anal sex had been performed on her. At the close of the State's case, defense counsel made a motion for acquittal based on Crim. R. 29, which motion was denied by the court. THE CASE On October 4, 1989, the appellant, William D. Holbert, was indicted by the Cuyahoga County Grand Jury for one count of kidnapping, in violation of R.C. 2905.01, with a violence specification and two counts of rape, in violation of R.C. 2907.02, each with an aggravated felony specification. On October 10, 1989, appellant Holbert pled not guilty at his arraignment. On January 17, 1990, a jury trial commenced. On January 19, 1990, the appellant was found guilty of counts one and two. Pursuant to appellant's motion, count one of kidnapping and count two of rape were found to be crimes of similar import and therefore merged for purposes of sentencing. On January 22, 1990, appellant Holbert was sentenced to a term of fifteen to twenty-five years on the merged counts one and two with fifteen years actual incarceration. It is from this conviction and sentence this appeal follows. ASSIGNMENT OF ERROR I -7- "WILLIAM HOLBERT HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW, BY HIS CONVICTION FOR RAPE WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT." Appellant argues in his first assignment of error that the trial court erred in upholding his conviction for rape. Specifically, appellant argues that insufficient evidence as to the element of "force" or "threat of force" was demonstrated to sustain his rape conviction. This assignment of error is not well taken. ISSUE: WHETHER THE STATE MET ITS BURDEN OF PROOF AS TO THE ELEMENT OF "FORCE" OR "THREAT OF FORCE" In the case sub judice, appellant Holbert was indicted for rape in violation of R.C. 2907.02, which states in pertinent part: "(2) No person shall engage in sexual conduct with another when the offender purposely compels the other to submit by force or threat of force." Appellant Holbert argues that the state did not prove his use of force or threat of force beyond a reasonable doubt. We submit, however, that the victim's own testimony and corroborating testimony from other witnesses compels us to believe otherwise. R.C. 2901.01 defines "force" as any violence, compulsion or constraint physically exerted by any means upon or against a person or thing. In the case at bar, the victim, Melissa testified that appellant Holbert had her "pinned down." -8- "Q.(COURT): Can you tell us what happened when you woke up? "A.(MELISSA): I felt Dean on top of me. *** I told him to get off several times. I asked him nicely, and he wouldn't get off. *** I kept pushing him away on his chest, and he grabbed by hands like this and he put them down on the bed like right here beside my head. *** I pushed him off. I mean, how could I? I was pinned down." (Tr. 47-48.) Melissa's testimony clearly demonstrates that appellant Holbert used physical force to have sexual intercourse with her. The record reveals further that appellant also used the "threat of force." "Q.(COURT): Did he say anything to you? "A.Yes. "Q.What did he say? "A.He said he'd tell my dad and that he would beat him up ***. "Q.You indicated that he threatened your father? "A.Yes. "Q.Did he say anything threatening towards you? "A.He said he'd beat me." (Tr. 47-48.) In State v. Eskridge (1988), 38 Ohio St. 3d 56, the Ohio Supreme Court held that "[f]orce need not be overt and physically brutal *** as long as it can be shown that the rape victim's will was overcome by fear or duress, the forcible element of rape can be established." Id. at 58-59. -9- Herein, the evidence supports the contention that Melissa was overcome by fear. We can deduce from Melissa's testimony that she was afraid that appellant Holbert would harm her and also her father if she tried to resist his actions. Further, the testimony of Melissa reveals that she felt powerless to resist appellant's rape. She stated in response to whether she tried to get away, "I pushed him off. I mean, how could I? I was pinned down." (Tr. 48.) The court in Eskridge found that "[t]he force and violence necessary in rape is naturally a relative term, depending upon the age, size and strength of the parties and their relation to each other." Eskridge, supra, at 58. The victim in Eskridge was a four-year-old child. In the within case, Melissa was fifteen years old at the time of the rape. We reason, however, that Melissa was overpowered by appellant's force and threats because of her age and relationship to appellant. Appellant Holbert entered Melissa's bedroom and awakened her by placing himself on top of her--both acts of compulsion and constraint. Melissa's testimony that "he wouldn't get off," and that he took her clothes off and pinned her arms down are explicit uses of force and duress. We can infer from the evidence submitted that Melissa by no means consented to appellant's sexual conduct or engaged in the situation of her own free will. In accord, this court upheld defendant's conviction in State v. Figueroa (1990), Cuyahoga App. No. 57931, unreported, and held that the evidence submitted was sufficient to establish the use -10- of force when just after the rape, defendant made a fist at the eight-year-old victim and told her not to tell anyone. The court reasoned that the mere size and strength of defendant was sufficient to overcome the will of the victim. Corroborating evidence from Melissa's family provides circumstantial evidence that the element of force was established. Ms. Adkins, appellant Holbert's girlfriend testified that she found Melissa in the bathroom crying. Ms. Adkins also testified that she was surprised that appellant left the Scott home abruptly. She stated that she had expected him to spend the night. Melissa's rape kit test revealed evidence of semen in the vaginal and anal swabs taken at the hospital. The nurse at the hospital noted in her report that Melissa was "anxious." Dr. Patel testified that she was crying and upset when he examined her. Police evidence revealed semen on Melissa's bed sheets and panties. From Melissa's own testimony and from corroborating testimony of her family, the hospital and the police, we conclude that there was substantial evidence upon which the court could conclude that all the elements of forcible rape had been proven beyond a reasonable doubt. State v. Eskridge, supra. Accordingly, Assignment of Error I is without merit. ASSIGNMENT OF ERROR II "THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE." -11- Appellant argues in his second assignment of error that the trial court erred in upholding his conviction. Specifically, appellant argues that his verdict was against the weight of the evidence. This assignment of error is not well taken. ISSUE: WHETHER THE STATE'S EVIDENCE AND TESTIMONY SUPPORTED APPELLANT'S GUILTY VERDICT. Herein, appellant Holbert would urge this court to reverse his conviction, arguing that the state's evidence was unreliable and of poor quality. We disagree with appellant's contention. We submit that testimony and evidence presented by the state corroborated Melissa's allegations and consequently would lead us to uphold appellant's verdict. In Mattison (1985), 23 Ohio App. 3d 10, this Court indicated that the following factors should be used as guidelines when weighing the evidence: 1) Knowledge that even a reviewing Court of Appeals is not required to accept as true the incredible; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Considerations of what was not proved; 5) The certainty of evidence; 6) The reliability of evidence; 7) The extent to which the evidence is vague, uncertain, conflicting, fragmentary, or not fitting together in a logical pattern. -12- Searching the record for inconsistencies, we note that the only material inconsistent testimony was that of Melissa when she told the nurse that appellant had performed no anal or oral sex. On the witness stand, Melissa testified that appellant had penetrated her rectum. We find, however, that this inconsistency was decided by the physical evidence presented by the state. James Wurster of the Bureau of Criminal Investigation tested the rape kit and other evidence. He testified that he found semen present in the vaginal and anal swab taken by the doctor at the hospital. Appellant Holbert argues that the semen found in the rape test kit and on Melissa's panties and sheets were not tested to make certain that it was his semen. We reason, however, that the evidence of semen supports Melissa's allegations. It is well established law that the credibility of witnesses is primarily for the trier of fact. State v. DeHass (1967), 10 Ohio st. 2d 230. Further, we find that the record indicates that appellant himself made self-incriminating remarks in Mr. Scott's telephone call to him. "Q.(COURT): Tell us about the conversation, sir. "A.I asked him, I said 'What are you stupid?' *** "Q.What did he say? "A.And he said he was sorry. I said, 'Sorry don't get it.' ***." (Tr. 137.) -13- When Mr. Scott called appellant's house the second time, he did not speak to appellant, but could hear appellant crying in the background. Therefore, taking into consideration the guidelines set forth in Mattison, supra, at 14, we find that appellant's verdict was not against the weight of state's evidence presented at trial. Further, we find no material inconsistencies in the testimony presented by the state. Reliable and certain evidence was presented by the state which corroborated Melissa's testimony. Accordingly, a reviewing court will not reverse a judgment of conviction where there is sufficient evidence presented to the jury, which if believed, would convince the average mind of guilt beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. For the foregoing reasons, the trial court is affirmed. -14- 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. KRUPANSKY, C.J. and BLACKMON, J., CONCUR. DAVID T. MATIA 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. .