COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59427 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MOSES CLARK, JR. : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 239257. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor James R. Columbro Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Ruth J. Hudson, Esq. 1700 Terminal Tower Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., J.: Defendant-appellant Moses clark, Jr. ("Clark") appeals from his bench trial conviction of one count of rape [R.C. 2907.02(A)(2)], a first degree felony, and one count of kidnapping [R.C. 2905.01(A)(4)], a second degree felony./1\ Based on the reasons below, we affirm. The victim in this case, Donna Johnson ("Johnson"), date of birth April 7, 1963, testified that she was walking to her sister's home at East 75th and Hough Avenue on the early morning of March 30, 1989, between 12:00 a.m. and 1:00 a.m. She claimed that she had been visiting friends in the East 79th and Cedar Avenue area of Cleveland. She could not recall what day of the week this was. Johnson stated that a black car with a red stripe approached her at East 75th and Euclid Avenue as she was walking near the curb. She did not recognize the driver. Johnson claimed that the driver asked her for directions to gain her attention. She approached the car on the driver's side. At the door, she claimed that the driver, using his left hand, showed a small, dark colored revolver to her and ordered her into the car. This gun was never seen again by Johnson. The driver got out and Johnson entered the car through the driver's door. She climbed over the center console separating the two front bucket seats and seated herself in the front passenger seat. The driver reentered /1\ Each of the two counts also carried an aggravated felony specification. Clark was found guilty of this specification (attempted rape in 1981) on both counts. -3- the car and began to drive away. The car allegedly headed toward Euclid Avenue, drove along Euclid Avenue to East 79th Street, then turned onto East 79th Street and headed toward Quincy Avenue. Several times the car stopped at red lights. Johnson claimed there was no conversation while in the car. Somewhere in the vicinity of East 75th Street and Quincy Avenue, the car stopped on a "little dark street." R. 31. There, the driver allegedly ordered Johnson to remove her clothing, which Johnson claimed consisted of a shirt, blue jeans, undergarments and tennis shoes. R. 67. She was not wearing a hat or coat. Johnson removed one leg from her pants and undergarments, leaving the other leg and upper body clothed. She turned her body to face the driver's seat and positioned a leg over the console. At that point, the driver, with one leg similarly unclothed and the other leg clothed, positioned himself on top of Johnson. Johnson testified on direct examination that the driver vaginally penetrated her with his penis. R. 38. On cross-examination, Johnson stated that she did not know if he penetrated or ejaculated within her. R. 81, 83. On redirect, Johnson asserted that his penis had been in her vagina. R. 102. Following the sexual act, the participants reclothed, and the driver proceeded to the area of East 76th Street and Quincy Avenue, to the end of a one-way street, where Johnson was ordered to get out of the car. Johnson complied and left the car. Johnson then claimed to have run to her sister's house, where she placed a telephone call to the rape crisis center. The -4- counselor at the center told her to go to the hospital. Johnson also testified on cross-examination that she washed up while at her sister's house. Johnson went to Mt. Sinai Hospital during the afternoon of March 30, 1989, and was examined using a basic standard rape kit, which is a collection of tests used to gather evidence from a victim following an alleged rape. She also gave a statement to Officer Donald Roberson of the Cleveland Police Department while at the hospital. Johnson did not remember how she got to the hospital and could not identify her assailant at the time. Her shirt, jeans and panties were taken as evidence. Following her medical assessment, the police administered a photo array, during which Johnson could not identify her assailant. Thereafter, Johnson claimed that she saw her assailant driving the same black car at a normal rate of speed near a convenience store on the east side of Cleveland, but was unable to copy the license plate number of the car. Next, Johnson claimed to have seen her assailant driving the black car at mid-day on Carnegie Avenue near Lancer's Restaurant. This time, she copied the license plate number and reported this number to the police. The police check of the license plate number revealed that the car was registered to the defendant. The police administered a second photo array to Johnson shortly thereafter, at which time she identified the defendant's picture without hesitation. -5- Scientific analysis of the panties indicated a possible presence of seminal fluid. No body fluids were found on the jeans. No evidence of sperm was found either in Johnson's urine sample or on a vaginal swab taken from Johnson. Detective Stephen Stacho of the Cleveland Police Department sex crimes unit testified that the first photo array was given around April 10, 1989, and the second photo array was given on April 27, 1989. The detective attempted to serve an arrest warrant on defendant at his residence on April 28, 1989, but was told that he was not home. Defendant was finally arrested on May 17, 1989. Johnson's mother, Helen Johnson, testified that defendant's family had lived next door to the Johnson family years ago, but the defendant's family had moved in 1968. The mother also stated that: (1) her daughter, the victim, told her of the rape two to three weeks after the event; (2) that she had spoken with the defendant by telephone twice after he called in September of 1989; (3) the defendant said he had "done it," he was wrong, and he offered to pay $125 to get the charges dropped; (4) the defendant never used the word "rape" during these telephone calls; (5) the offer of $125, according to the defendant, was to compensate Johnson for what the defendant was supposed to have paid for the sex act; (6) the defendant and his stepfather also telephoned the victim's father one time each in August and September regarding the incident involving the victim. -6- Johnson's sister, Kayetta, testified that she learned of the alleged rape about three days after the incident from the victim's boyfriend, Ronny Henderson. At the close of the State's case, the defense moved for acquittal pursuant to Crim. R. 29. The court denied this motion on the charge of rape. The motion was partially granted on the count of kidnapping, thereby reducing it to a second degree felony. The motion was also granted as to the gun specification. Defendant's employer's representative, Thomas Ziegler, testifying on behalf of the defendant, stated that defendant was hired on October 24, 1988, and was considered a good employee. Mr. Ziegler also testified that the defendant, on March 29, 1989, checked in for work at 3:42 p.m. and checked out at 11:52.p.m. Defendant testified on his own behalf. Clark stated that he does not own a gun due to a 1981 felony plea of guilty to attempted rape. He also testified that he did, in fact, own the black 1979 Pontiac Sunbird identified by the victim at the time of the incident, and did work the second shift on March 29, 1989, at his place of work which was located at 2215 East 14th Street between Carnegie and Prospect Avenues in Cleveland. Clark stated that he was wearing work clothes, with a sweater, jacket and cap that evening because it was raining and thundering. Clark admitted to having picked up Johnson on his way home that morning, but that the incident was consensual in nature. He claimed that he thought he recognized Johnson as a member of the Johnson family who lived next to his family prior to 1968, and -7- struck up a conversation inquiring about the current health and activities of the Johnson family members. Clark stated that she got into the car because they agreed to go out and "date," to wit, have sex in exchange for twenty-five dollars. He testified that she got into the car on the passenger side. Because he did not have the proper change, he claimed that Johnson agreed to accept payment after completing the sex act because she knew his family. He also claimed they agreed to the place for the sex act, in the vicinity of the 2500 block of East 84th Street between Quincy and Woodland Avenues. At that spot, Clark claimed they tried to complete the sexual intercourse, but he was unable to penetrate her vaginally due to the limited confines of the small car's front seat area. Since he did not receive the benefit of the bargain, Clark refused to pay Johnson. With that, Johnson allegedly became upset and threatened Clark with physical harm. Clark started the car and drove her to East 79th Street between Quincy and Central, where he stopped the car and let Johnson out. Clark estimated that about twenty-five to thirty minutes elapsed between the time he met Johnson to when she left his car. He went home after leaving Johnson at around 1:00 a.m. Clark also testified that he saw Johnson again on the street about a week later around noon-time, but did not talk with her. Clark stated that he did telephone Johnson's father and mother in late summer of 1989, but he never told them that he raped their daughter. He claimed he explained the incident as -8- being over a lack of payment, and that he offered to pay the twenty-five dollars to settle the matter. At the close of the defense case, counsel for defense renewed his motion for acquittal. It was denied. Clark was found guilty of count one, count two as modified, and the prior felony specification. Clark was sentenced to the following: Count One -- 10-25 years imprisonment plus court costs; Count Two -- 5-15 years imprisonment; both counts to run concurrently. This appeal, raising two assignments of error, and submitted on briefs, followed. These assignments will be discussed jointly. I THE CONVICTIONS OF APPELLANT BY THE TRIAL COURT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUPPORT CONVICTIONS FOR RAPE, AND FOR KIDNAPPING IN THE SECOND DEGREE, AND THEREFORE THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO OHIO CRIMINAL RULE 29. This court stated the following in State v. Thompson and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported, at pages 5-6: The standard of review to be applied to these assignments of error was stated in State v. Thomas, et al. (September 20, 1990), Cuyahoga App. Nos. 57311 and 57327, unreported, at p. 4, as follows: -9- In this assignment of error, appellants argue insufficiency of the evidence and manifest weight of the evidence. The test for sufficiency of the evidence is stated in State v. Martin (1983), 20 Ohio App. 3 172, at paragraph two of the syllabus, as: *** whether 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 elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. See also, State v. Bridgeman (1978), 55 Ohio St. 2d 261; State v. Davis (1988), 49 Ohio App. 3d 109; and Crim. R. 29(A). Appellant also relies on eight factors enunciated in State v. Mattison (Cuyahoga, 1985), 23 Ohio App. 3d 10, in support of -10- his assignment based on manifest weight of the evidence. The Mattison decision and the eight factors were discussed recently by this court in State v. Laux (June 27, 1991), Cuyahoga App. No. 58856, unreported, at pages 15-16: This court stated the following in State v. Mattison (1985), 23 Ohio App. 3d 10, at page 14: A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury "'which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Eley (1978), 56 Ohio St. 2d 169, 172 [10 O.O. 3d 340]; see, also, State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O. 2d 366]. *** The eight factors listed in Gaston are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed. The eight factors mentioned in the above citation and relied upon by appellant, which are contained in State v. Gaston (Jan. 11, 1979), Cuyahoga App. No. 37846, unreported, were referenced by the Mattison court in the syllabus. These factors are: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. In the present case, there was competent, credible evidence which, if believed, would support a finding of guilt. Additionally, the evidence, viewed in a light most favorable to the prosecution, could have led the trier of fact to find that -11- the essential elements of the offenses were present beyond a reasonable doubt. Assignments overruled. Judgment affirmed. Judgment affirmed. 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. FRANCIS E. SWEENEY, P.J., and JOHN F. CORRIGAN, J., CONCUR. JAMES D. SWEENEY 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. .