COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59369 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ALPHONSO CALHOUN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 27, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-242390 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES BEVERLY J. PYLE Cuyahoga County Prosecutor Assistant Public Defender 8th Floor, Justice Center 307 Marion Building 1200 Ontario Street Cleveland, Ohio 4411 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Appellant Alphonso Calhoun timely appeals his convictions of rape in violation of R.C. 2907.02 and aggravated robbery in violation of R.C. 2911.01. Each charge contains an aggravated felony specification of a prior offense of armed robbery. Both cases were tried to a jury and after their verdict, the trial court sentenced appellant to an indefinite term of 15 to 25 years, with a 15 year term of actual incarceration on each count. The sentences were ordered to run concurrent, but consecutive to the sentence that appellant received in a different case to the instant case, which was tried on the same day. Thereafter, appellant admitted to a prior conviction of armed robbery, and the trial court found him guilty of both counts of aggravated felony specifications. In the instant appeal, appellant assigns three errors for review by this court. The first issue on appeal is whether there was sufficient evidence to support an aggravated robbery conviction. The second issue is whether the verdict is against the manifest weight of the evidence. The final issue is whether appellee's questioning whether appellant made a written statement violated his right to due process. For the reasons set forth below, we affirm. STATE'S CASE Paulette Marks was the state's principal witness. She testified that on July 22, 1989, she and a friend were planning -3- to sell a coat. They left her home and arrived at an apartment near E. 131st and Buckeye, where she met appellant who identified himself as Allen. Eventually, she and appellant went to a house located at E. 123rd and Buckeye, where they prepared and smoked crack cocaine. Ultimately, appellant and Paulette Marks entered the downstairs of the house and continued to smoke crack cocaine. Sometime thereafter, she attempted to leave when the appellant punched her in the face with his fist and accused her of stealing his cocaine. Paulette Marks stated that appellant ordered her to strip and he searched her. She indicated that during this time he struck her with a stick and a hanger, and took two dollars from her. Appellant then ordered her to have sex with him. She refused and he threatened to kill her if she did not "suck his penis". She stated that he made her "do it four times", and placed his scrotum in her mouth. He ordered her to "lick it", and she clamped her teeth on his scrotum and ripped it. Thereafter, she ran out of the house to a next door neighbor's house and called the police. When the police arrived, she made a report and eventually made a statement. The evidence from the record revealed that Paulette Marks did not sustain any swelling, bruising, or bleeding from the appellant punching her in the side of the face. -4- Detective Richard Martin of the Cleveland Police Department Sex Crimes Unit also testified on behalf of the state. He stated that his investigation revealed that appellant, under the name of Perry Willis, was admitted to Huron Road Hospital because his testicles had been severed. He interviewed appellant who said a man named Charles Smith had cut him with an ax. Detective Martin learned that appellant was wearing grey pants when he was admitted. Thereafter, he showed Ms. Marks a photograph of the pants and she positively identified them. She was also shown a photograph of appellant, which she positively identified. Appellant was confronted with this information and refused to provide his fingerprints. Detective Martin testified that he obtained a court order to fingerprint appellant. The finger- prints confirmed that he was in fact Alphonso Calhoun. Detective Martin further stated that appellant explained to the police that he used another name because he did not want to alert his family. DEFENSE CASE After the state presented its case, appellant testified on his own behalf and was the sole witness for his defense. Appellant testified that he spent time on that day with Ms. Marks, because she was good at cooking cocaine into larger rocks. He claims that after they went to the downstairs portion of Pam's house, they were not alone. A women named Madeline accompanied -5- appellant and Ms. Marks downstairs, where they continued to smoke cocaine. He testified that he felt very comfortable in Pam's house so he stripped down to his underwear and laid down. He placed his pouch which contained drugs and money, in his undershorts and dozed off. He was awakened in pain and saw Ms. Marks running out of the house with his pouch. He looked down and realized that he was bleeding profusely and his testicles were severed from his body. He put them in a towel, put his clothes on and drove to Huron Road Hospital. On cross-examination, he explained that he lied to the hospital staff and the police about his identity and how he was injured because he did not want his parents to know the nature of his injury and about his involvement with drugs. Within the context of this testimony, the prosecutor asked if he had made a written statement. His answer was no. Appellant's counsel objected and the trial court overruled the objection. Appellant's first assignment of error states: ALPHONSO CALHOUN WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF AGGRAVATED ROBBERY ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION. The law in Ohio is that sufficiency of evidence exists when "after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential -6- elements of the offense beyond a reasonable doubt." State v. Martin (1983), 20 Ohio App. 3d 172, 175, citing Jackson v. Virginia (1979), 443 U.S. 307, 319. Appellant's argument that there is insufficient evidence that the alleged hitting did not have a relationship to the alleged theft offense is unpersuasive. In the commission of robbery or aggravated robbery, the use of force must be for the purpose of committing a theft offense as well as contemporaneous to that theft offense. See, State v. King (Aug. 27, 1981), Franklin App. No. 80AP-968. In the instant case, the victim, Ms. Marks, testified that when appellant punched her he took two dollars and searched her for drugs. It was not until after he finished searching her that the rape offense occurred. From this evidence, the reasonable inference can be drawn that the purpose of appellant hitting the victim was to commit the theft offense. Appellant's argument that there is insufficient evidence of an attempt to commit, or the infliction of serious physical harm is also unpersuasive. R.C. 2901.01(E) defines serious physical harm to persons as: (1) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (2) Any physical harm which carries a substantial risk of death; (3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity; (4) Any physical harm which involves some permanent disfigurement, or which involves some temporary serious disfigurement; -7- (5) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or which involves any degree of prolonged or intractable pain. In the instant case, appellant argues that the striking of Ms. Marks and the raping of her did not demonstrate serious physical harm. However, the commission of rape is sufficient evidence from which a reasonable inference could be drawn that there was an attempt to cause serious physical harm. See, State v. Malone (1984), 15 Ohio App. 3d 123. (where defendant forcibly carried victim to secluded area, takes her money and rapes her, the rape could be considered by the jury in determining whether there was an attempt to cause or actual serious physical harm). A criminal attempt occurs when a person takes a substantial step toward the commission of a crime. State v. Woods (1976), 48 Ohio St. 2d 127. Therefore, the rape immediately following the theft is sufficient evidence of an attempt to cause serious physical harm, and appellant's first assignment of error is not well taken. Appellant's second assignment of error states: THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. Appellant argues that the verdict is against the manifest weight of the evidence because the testimony of the victim, Ms. Marks, lacks credibility, conflicts with her statements given to the police, and she had an interest to protect by her testimony. We disagree. A criminal conviction should not be reversed, where -8- there is sufficient evidence "which if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." E.g. State v. Eley (1978), 56 Ohio St. 2d 169, 172, cited with approval in, State v. Mattison (1985), 23 Ohio App. 3d 10, 14. Appellant relies on this court's decision in Mattison. Nevertheless, Mattison clearly states that the same factors listed by the appellant "are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed." Id. at 14. In the instant case, there was sufficient evidence to prove the defendant's guilt beyond a reasonable doubt. Finally, appellant's argument that his testimony is more credible is unpersuasive. Notwithstanding the issue of credibility, a conviction should be affirmed where there is sufficient evidence of the defendant's guilt. See Eley at 172. Appellant's second assignment of error is not well taken. Appellant's third and final assignment of error states: MR. CALHOUN WAS DENIED DUE PROCESS OF LAW GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT PERMITTED THE STATE TO USE MR. CALHOUN'S POST-ARREST/POST-MIRANDA WARNING SILENCE FOR IMPEACHMENT PURPOSES. This assignment of error is based upon the premise that the appellee's question to the appellant on cross-examination regarding whether appellant made a written statement was a -9- reference to the appellant's post-arrest and post-miranda silence. We do not agree that this question raises issues regarding the appellant's post-arrest and post-miranda silence. A careful reading of the transcript demonstrates that the question was asked to impeach the oral statements appellant made prior to his arrest. There was no inference relative to post- arrest activities. This court has held that a defendant may be cross-examined regarding his pre-arrest silence without violating his constitutional rights against self-incrimination. State v. Sharif (Mar. 7, 1991), Cuyahoga App. No. 58041, unreported at 6, citing State v. Sims (1981), 3 Ohio App. 3d 321, 327-8. Therefore, appellee's question did not violate appellant's right to due process. Appellant's third and final assignment of error is not well taken. Judgement affirmed. -10- 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 FRANCIS E. SWEENEY, J., CONCUR. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .