COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59558 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION GARY KEITH : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-246016 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES TIMOTHY P. HAFFEY, ESQ. CUYAHOGA COUNTY PROSECUTOR ASST. PUBLIC DEFENDER BY: LAURENCE R. SNYDER, ESQ. Room 307, Marion Building ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Defendant-appellant, Gary Keith, was indicted on three counts of rape (R.C. 2907.02), one count of kidnapping (R.C. 2905.01), one count of aggravated robbery (R.C. 2911.01), and one count of felonious sexual penetration (R.C. 2907.12). All of the counts carried an aggravated felony specification which was stipulated to prior to trial. A motion to dismiss the felonious sexual penetration charge was filed prior to trial and denied during the course of trial. The trial court, at the end of the defendant's case, granted defendant's Crim. R. 29 motion for acquittal as to the aggravated robbery charge. The jury found appellant guilty of the remaining counts in the indictment. On October 12, 1989, at approximately 2:00 a.m., Catherine Hagerty was returning to her apartment in Euclid, Ohio after having spent the evening watching television with a group of friends. In order to get home, Catherine had to pass through the intersection of Garden Drive and Babbitt Road. Her apartment building and garage was located less than one quarter mile from that intersection. Located at this intersection was a bar called Pete and Charlie's. As Catherine turned off Babbitt Road onto Garden Drive she noticed an individual standing underneath a street light wearing a plaid jacket. The individual was walking away from the parking lot of Pete and Charlie's. - 2 - Catherine proceeded down Garden Drive to her apartment complex. She pulled up to her garage and exited her vehicle in order to open up the garage door. She then re-entered her vehicle, drove into the garage, and parked in her designated spot. She exited the vehicle and after locking the doors walked to the back of the vehicle to retrieve a bottle of soda. Before she could open the vehicle's hatchback, an individual grabbed her from behind and placed one hand over her mouth and used his other hand to twist her arm behind her back. The individual stated, "Don't scream or I'll hurt you." Catherine tried to fight off the attacker and tried to hurt him around the face with her car keys. The attacker took the keys and punched her in the back, knocking her to the floor. The attacker closed the garage door and Catherine crawled under the car in an attempt to get beyond his reach. The attacker grabbed her by the hair and dragged her out from underneath, banging her head into the floor. He told her if she just "behaved" he wouldn't hurt her and that he just wanted to "jerk off." The attacker then pulled up Catherine's blouse and sweat shirt and touched her breasts. Catherine again attempted to fight. The attacker threw her face down onto the hood of the car and pulled down her pants. While holding her wrist in one hand, the attacker inserted his finger into her vagina. He then removed his finger and put it in her mouth. He then placed his mouth onto her vagina. Next, the attacker unzipped his pants and inserted his penis into her vagina. - 3 - Catherine claimed that at this point she could see that her attacker was wearing jeans, sneakers and a plaid jacket. She resisted again and the attacker then rolled her over onto her back and removed her pants. He tried to kiss her and then forced her legs on his shoulders and inserted his penis into her anal cavity. He withdrew and then again put his penis in her vagina. At this point the attack ended. After he stepped out of the garage, he stood outside the garage door, illuminated by a light on the garage door, and pulled down the door. His parting words were that Catherine had better not call the police because he knew where she lived. Catherine returned to her friend's apartment. The police were called and she was eventually taken to the hospital where she was examined and treated. Catherine subsequently identified defendant as her attacker from a photo array and line-up. I GARY KEITH WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant, in his first assignment of error, argues his convictions were against the manifest weight of the evidence. Defendant argues a number of points which we find to be unpersuasive for the proposition that his convictions should be reversed. - 4 - In determining whether the verdict is against the manifest weight of the evidence an appellate court looks to the entire record and considers whether "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; State v. Martin (1983), 20 Ohio App. 3d 172, 175. A reviewing court will not reverse a conviction where there is evidence substantial enough for the court to decide all elements of the offense were proven beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St. 3d 56, paragraph two of the syllabus. We further note that the credibility of the witnesses is primarily a determination for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. Defendant argues that the victim's selection of defendant from a line-up was tainted and therefore not credible; that the victim's eyewitness identification of the defendant as he exited the garage was questionable because it occurred at night and because the victim's vision was somehow impaired from her contact lenses. In further support of his argument defendant alleges that the victim stated that she had scratched her attacker's face with her car keys and the fact that as of the date of the police line-up his face was not scratched is evidence of mistaken identity. Defendant also states that there were no identifiable fingerprints belonging to appellant introduced at trial. Lastly, defendant states that because testimony was presented which - 5 - indicated defendant had a history of not wearing hats and because there existed a picture of defendant getting his hair cut, the jury lost its way and a manifest miscarriage of justice occurred. A review of the records reveals overwhelming consistent evidence of defendant's guilt. The record shows that the victim identified defendant in a line-up and that all the facts and circumstances surrounding the selection were disclosed to the jury. Further, the victim testified that there was no doubt in her mind that the individual she chose from the line-up and the photographic array was the individual who attacked and raped her. It appears defendant's argument stems from the fact that the victim took her time in identifying defendant in the line-up so as to relieve herself as to any doubt as to the identity of the attacker. The evidence also showed that after the defendant left the garage, he stood momentarily in a lighted area and the victim was able to see his face. The record shows the victim was able to put together a composite drawing which was an accurate depiction of the defendant. The evidence at trial also showed that the victim was wearing her contact lenses and that her vision was clear and never impaired by the lenses. A review of the record shows, in contradiction to defendant's argument, that the victim attempted to scratch defendant's face with her keys, but that she could not say with - 6 - certainty whether she made contact. Further, the line-up occurred seven days after the attack and it would not be unreasonable to consider that a scratch may have healed. As to the argument no identifiable fingerprints were found, we note that the jury knew that no identifiable prints of defendant's had been found. Finally, the victim testified her attacker was wearing a hat that night. Two other witnesses employed by Pete and Charlie's Bar placed defendant at that corner bar that evening and testified defendant was wearing a hat when he exited the premises shortly before the rape occurred. The testimony of three witnesses also corroborated the victim's testimony that defendant's hair was shoulder length on the night of the rape. The assignment of error is without merit. II THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO DISMISS COUNT FIVE (5) OF THE INDICTMENT EVEN THOUGH COUNT FIVE WAS DEFECTIVE ON ITS FACE. In his second assignment of error defendant claims the trial court erred when it did not grant his pre-trial motion to dismiss count five of the indictment. Defendant argues that R.C. 2907.12(A) was amended shortly before he committed the crimes and the state's failure to recite, in the indictment, the verbatim language contained in the amended statute should have caused the trial court to dismiss the count. R.C. 2907.12(A) in its current form reads: - 7 - No person without privilege to do so shall insert any part of the body, or any instrument, apparatus, or other object into the vaginal or anal cavity of another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender **** R.C. 2907.12(A), prior to September 27, 1989, read: No person without privilege to do so shall insert any instrument, apparatus or other object into the vaginal or anal cavity of another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from offender ***. Count five of the indictment charged that appellant "without privilege to do so inserted an instrument, apparatus, or other object to-wit: a finger into the vaginal or anal cavity of another. R.C. 2941.08 reads: An indictment of information is not made invalid, and the trial, judgment, or other proceedings stayed, arrested, or affected: (A) By the omission of 'with force and arms,' or words of similar import, or 'as appears by the record'; (B) For omitting to state the time at which the offense was committed, in a case in which time is not of the essence of the offense; (C) For stating the time imperfectly; (D) For stating imperfectly the means by which the offense was committed except insofar as means is an element of the offense. (E) For want of a statement of the value or price of a matter or thing, or the amount of damages or injury, where the value or price or the amount of damages or injury is not of the essence of the offense, and in such case it is sufficient to aver that the value or price of the property is less than, equals, or exceeds the certain value or price which determines the offense or grade thereof; - 8 - (F) For the want of an allegation of the time or place of a material fact when the time and place have been once stated therein; (G) Because dates and numbers are represented by figures; (H) For an omission to allege that the grand jurors were impaneled, sworn, or charged; (I) For surplusage or repugnant allegations when there is sufficient matter alleged to indicate the crime and person charged; (J) For want of averment of matter not necessary to be proved; (K) For other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits. The imperfection in defendant's indictment did not substantially prejudice defendant's rights. He was clearly charged with inserting his finger into the victim's vagina without privilege to do so. We cannot see how this harmed the defendant's preparation of his defense. State v. Barnecut (1988), 44 Ohio App. 3d 149. Further, the jury was properly instructed on the offense. This assignment of error is overruled. Judgment affirmed. - 9 - 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. NAHRA, J. AND HARPER, J., CONCUR. PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .