COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59562 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION GREGORY JONES, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 7, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-239,855 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Charles M. Morgan, Jr. 11510 Buckeye Road Cleveland, Ohio 44104 -2- NAHRA, J.: Gregory Jones was convicted of two counts of rape with aggravated felony specifications. He brought this appeal, contending that the verdict was against the manifest weight of the evidence. Because we find no merit to this contention, we affirm the convictions. On the evening of April 21, 1989, Linda Guy got off work at the downtown Cleveland YMCA at about 9:00 P.M. Guy was living in Cleveland temporarily while her husband was overseas. On that night, she drove to University Towers at E. 105 and Chester to visit her co-worker and friend Wayne Hill at his mother's apartment. She had often socialized with Wayne Hill at his mother's apartment. Sometimes Wayne Hill's sister, Frances Solsberry, was there also. On the evening of April 21, Hill, Guy and Solsberry had a few beers at University Towers. Hill got a phone call from his girlfriend Joyce Brooks who was in labor, and he left to be with her. Guy and Solsberry left in Guy's car and went to a bar nearby where they had a few more beers. They got back in the car and Solsberry directed Guy to drive to a second bar where Solsberry hoped to find someone she knew. The bar was closing and they did not get out of the car. On their way to a third bar, Solsberry directed Guy to stop the car on a street called Russell. According to Guy, Solsberry told her to stop the car; handed a man some money; and received something in return. Guy stated that they continued down the -3- street after this transaction until Solsberry saw appellant. Guy testified that Solsberry got out of the car, talked to appellant, and they both got back into the car. Appellant and Solsberry smoked something in appellant's tube-like pipe. Guy stated that they argued about keeping the pipe lit, and about whose turn it was. Both wanted Guy to continue driving. Solsberry's version of the same events was that she spotted someone she knew while she and Guy were driving and that she asked Guy to stop the car. She stated that she asked her friend for money. After Solsberry talked to her friends, appellant was at the side of the car. Solsberry stated that he got into the back seat of the car without being invited. She also stated that he tried to light his pipe but could not do so. Appellant testified that he saw the car pull up, and that Solsberry yelled out, asking him whether he had a "straight shooter", which is a tube-shaped pipe used to smoke rock cocaine. Appellant responded that he had one, and got into the back seat of the car. He stated that he had never met Guy or Solsberry before. He testified that he, Guy and Solsberry all shared the pipe, and that he did not supply the drugs. According to Guy, after appellant got in the car, she proceeded to drive while appellant and Solsberry were sharing the pipe and arguing with each other. She testified that Solsberry got out of the car while the car was stopped at a stop sign, and would not get back in. Solsberry testified that she became afraid of appellant and fled. -4- Guy testified that she tried to find Solsberry but could not, and that she could not find her way. She told appellant that she would drive him home. She also told him that she needed to use the bathroom and that she wanted to go to University Towers. He directed her to pull over in a dark place, where she got out of the car to urinate. When appellant also got out of the car, Guy told him to get back in because she was not finished. Appellant refused. Guy then tried to get back into the driver's seat, and appellant grabbed her and told her to lie down in the back seat. When Guy told him he would have to kill her first, he hit her on the left side of her cheek. Guy got into the back seat. Appellant then dumped Guy's purse out on the front seat, looking for money. She told him there was none. He then got into the back seat. He told her to take her pants off. Fearing for her life, Guy complied. Appellant lowered his pants, and forced Guy to submit to oral intercourse. He then told her to lie down and they had vaginal intercourse. Guy testified that appellant apologized for hitting her and was afraid she would call the police. She stated that he said he would kill her, and that she would have said anything he wanted to hear. She convinced him that she could get more money if they went back to University Towers. He drove there, and they entered the parking lot after a security guard opened the gate. Guy stated that she went into the building and told the security guard what had happened. She also told Hill's mother. The -5- security guard called police; Hill's mother went and picked up Hill. Appellant was attempting to leave the parking lot when the police and Wayne Hill arrived. Guy testified that she hit appellant when he told the security guards and police that he did not know who Guy was. Hill and Patrick Perdue, a security guard, both testified that Guy's face was red and that she was crying. Kathleen Peluso, the emergency room nurse, testified that Guy was trembling and crying when she went to the emergency room. Peluso also stated that laboratory tests indicated the presence of sperm in Guy's vagina, and that Guy recoiled in pain when the examining doctor palpitated the left side of her face. Appellant testified that Guy wanted him to go to the west side with her. He stated that Guy tried to get Solsberry back into the car but could not. He stated that Guy changed her mind about going to the west side, and wanted to go to a friend's house to get money to buy more cocaine. Appellant testified that both he and appellant got out of the car and urinated. He said that Guy took her pants and jeans off and they had sex. He stated that they both wanted to have sex and that it was her idea. He stated that it could have happened anywhere but that Guy had not wanted to go to appellant's house. He stated that Guy really wanted to use the bathroom but that after they drove near appellant's house, she changed her mind and wanted to have sex. -6- Appellant was arrested. Four charges were brought against him, including kidnapping; two counts of rape, for oral and vaginal penetration; and one count of robbery. Appellant pled not guilty and had a jury trial. The judge reduced the robbery charge to attempted theft at trial. The jury returned not guilty verdicts on the kidnapping and theft counts, but found appellant guilty on the two rape counts. Appellant brought this timely appeal, assigning one error as follows: THE DEFENDANT-APPELLANT'S CONSTITUTIONAL RIGHTS WERE DENIED WHEN THE JURY CONVICTED HIM OF TWO COUNTS OF RAPE, A VERDICT WHICH IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A reviewing court may not reverse a conviction as against the manifest weight of the evidence where the trier of fact could reasonably conclude based on substantial evidence that the state proved the offense beyond a reasonable doubt. State v. Eley, see supra. In State v. Martin (1983), 20 Ohio App. 3d 172, the court stated the test for determining manifest weight as follows: * * * The court, reviewing 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. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Martin, supra, at 175. See also State v. Mattison (1985), 23 Ohio App. 3d 10. Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. -7- In this case, there was substantial evidence from which the jury could reasonably conclude that the state proved the rape offenses beyond a reasonable doubt. The victim testified that appellant got into her car uninvited to smoke drugs with Solsberry. Solsberry testified that she fled from the car because she was afraid of appellant. Guy also stated that after Solsberry jumped out of the car, appellant struck her in the face, and stated that he would kill her. Fearing for her life, she complied with oral and vaginal intercourse with appellant. Hospital reports indicated that Guy recoiled in pain when a doctor examined the left side of her face, and that sperm was present in her vagina. Hill, the security guard, police officer, and emergency room nurse all testified that Guy was very upset after the incident. Appellant's assignment of error is overruled. Affirmed. -8- 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. DYKE P.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA 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. .