COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59596 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WILLIE J. WALDON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 7, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-238,410 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: James Gutierrez Assistant Prosecuting Attorney Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Paul Mancino, Jr. 75 Public Square Building No. 1016 Cleveland, Ohio 44113 -2- NAHRA, J.: In April, 1988, Cora Payne met Willie Waldon, defendant- appellant. They started to date in May, 1988; however, Payne sought to terminate the relationship in December, 1988. Waldon did not want the relationship to end and undertook a series of threats in which he asserted that he would kill Payne, her mother, and Payne's children. On January 5, 1989, Payne along with her mother and two children returned to their apartment after having been on an errand. Inside the hallway behind the door, Waldon waited and upon Payne's arrival he approached her. He asked her if he could talk with her to which she replied that she had nothing to discuss with him. Payne told her mother and children to wait inside the apartment since Waldon insisted on speaking with her. After her family was inside the apartment, Payne observed that Waldon had something in one of his hands which was behind his back. She noticed the handles of two knives whereupon she screamed and attempted to run into her apartment. However, Waldon followed her into the apartment and grabbed her neck. Waldon made a motion with his arm as though he were going to stab Payne in front of Payne's mother and children. Waldon demanded that Payne leave with him and warned Payne's mother, Odetta Starks, not to come near him and that if she did, he would kill Payne. He also warned Payne's mother not to call the police or anyone else. -3- Payne testified that she left with Waldon because she wanted him out of the apartment and away from her family. Waldon grabbed Payne's neck and led her by knifepoint to Payne's car. Waldon drove around while still holding the knives and told Payne that she was a "dead bitch". He also told her that he had nothing to lose and that she "really had done it this time". Payne persuaded Waldon to stop at a pay phone so that she could call her family. Waldon pulled up to a pay phone and enabled Payne to make the call from the car without letting her escape. Waldon told Payne to tell Payne's mother that he had people watching the house and not to call the police or her brother. He relayed to her that if he contacted his people and discovered that police were there that he would then kill Payne. After driving around for awhile, Waldon parked the car near West 25th Street and Washington. He became despondent and wanted Payne to watch him kill himself. Waldon then requested that Payne kill him and attempted to give her the knives; Payne refused such offer. Waldon then requested that Payne drive the car and drop him off at home. As Waldon got out of the car to let her drive, he threw both knives into the snow. Thereafter, Payne proceeded to drive Waldon home and promised not to call the police in order to appease him. Payne testified that the driving episode lasted about an hour and a half. Upon returning to her home, Payne picked up her mother and children and went immediately to the police and made -4- a report. Thereafter, Payne directed officer Gary Cane to the location where the knives had been thrown. Officer Cane testified that he did find one knife in the snow where the car had been parked. However, Detective Stephen Vasas testified that the knife had been lost since its discovery and could not be found at the time of trial. Payne had identified the knife at the time her written statement was taken. Payne's mother testified that she witnessed the struggle in the apartment and that she saw the knives with which Waldon forced her daughter to leave the apartment. Waldon testified that he only wanted to talk with Payne about their relationship and stated that he only wanted to profess his love for her. He also stated that he had no intention of hurting her and that he carried a knife for his own protection. On June 23, 1989, Waldon was indicted on one count of kidnapping pursuant to R.C. 2905.01 with aggravated felony specifications based on two prior convictions. On March 21, 1990, a bench trial ensued and Waldon was found guilty. The trial court sentenced Waldon to a term of imprisonment of eight to fifteen years. This appeal follows. I. Appellant's first assignment of error states: THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN CONVICTIONS IN EXCESS OF TEN YEARS WERE USED TO IMPEACH THE DEFENDANT. -5- Prior to trial, the state and counsel for defense stipulated that Waldon was convicted of aggravated burglary and felonious assault in 1979. Such convictions provided the basis of aggravated felony specifications in the indictment. At trial, on cross-examination, Waldon admitted that he had been convicted of possessing stolen mail in 1974 and that he had been convicted of aggravated burglary in 1979. Waldon was unable to state whether he had been convicted of aggravated burglary in 1984. Counsel for Waldon did not object to any questions posed to Waldon on cross-examination with respect to the above prior convictions. Waldon asserts that the trial court erred when it admitted Waldon's convictions in 1974 and 1979 in contravention of Evid. R. 609(A) and (B). Evid. R. 609 provides: (A) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement, regardless of the punishment whether based upon state or federal statute or ordinance. (B) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of probation, or shock probation, or parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and ciricumstances substantially -6- outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. We note first that counsel for Waldon failed to object to the questions related to his prior felony convictions. As a result, any error related thereto was waived and need not be addressed in appeal. State v. Williams (1977), 51 Ohio St. 2d 112, 364 N.E.2d 1364. Notwithstanding such waiver, we believe the 1974 conviction with respect to possessing stolen mail involved dishonesty and was properly admitted. Waldon does not maintain that he lacked advance written notice of the state's intent to use such evidence. We have no reason to believe that he did not receive such notice. Evid. R. 609(B). The trial court also stated that it charged itself with the applicable law concerning prior convictions. In doing so, we believe the trial court properly determined that the 1974 conviction had probative value which substantially outweighed its prejudicial effect. For the same reason, we also believe the trial court properly admitted the 1979 convictions pursuant to Evid. R. 609(B). State v. Astley (1987), 36 Ohio App. 3d 247, 523 N.E.2d 322, paragraph three of the syllabus. Waldon appears to argue that the state failed to provide him with prior written notice of its intent to raise the 1979 convictions. There is evidence in the record that prior to trial the parties stipulated to the 1979 convictions. Moreover, -7- there is mention of the two convictions in the indictment. While such stipulation was entered for purposes of establishing felony specifications in the indictment, we do not believe Waldon could have been surprised by the mention of these convictions for purposes of testing credibility in cross-examinations. While it appears that a technical violation existed in terms of not providing Waldon with prior written notice of the state's intention to raise such convictions, we believe that any such error was harmless in view of the stipulation of such convictions prior to trial, the mention of such convictions in the indictment, and the overwhelming evidence supporting Waldon's culpability. As a result of the foregoing, appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF THE OFFENSE OF KIDNAPPING AS THERE IS INSUFFICIENT EVIDENCE TO PROVE ALL OF THE ESSENTIAL ELEMENTS OF KIDNAPPING. In reviewing a claim that the evidence is insufficient to support the verdict, a reviewing court's duty is to review the record to determine whether there was sufficient evidence to find defendant guilty beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259; State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922. -8- R.C. 2905.01, which defines the offense of kidnapping, states in pertinent part: (A) No person, by force, threat, or deception ... or by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following reasons: * * * (3) To terrorize, or to inflict serious physical harm on the victim or another; * * * Waldon contends that there was insufficient evidence that his purpose was to terrorize Payne. Instead, Waldon maintains that he merely intended to facilitate communication about their relationship. We disagree. Our review of the record indicates that there was sufficient evidence beyond a reasonable doubt to convict Waldon of kidnapping. Based on the testimony of Payne and her mother, Odetta Starks, Waldon forced Payne to leave her apartment and drive with him for an hour and a half during which he told her that she was a "dead bitch", and that he had nothing to lose. At such time, Waldon possessed two knives. Waldon also threatened Payne and Odetta Starks that if the police were called, then he would kill Payne. Under the circumstances, we believe that Waldon intended to terrorize Payne while he held her against her will. Appellant's assignment of error is overruled. -9- III. Appellant's third assignment of error states: THE COURT COMMITTED PREJUDICIAL ERROR IN FINDING THE DEFENDANT GUILTY OF KIDNAPPING RATHER THAN A LESSER INCLUDED OFFENSE. Waldon asserts that the trial court erred by finding him guilty of kidnapping. Instead, he argues that the trial court should have found him culpable of the lesser included offense of abduction./1\ The crime of abduction is a lesser included offense of the crime of kidnapping. State v. Laboy (Feb. 10, 1983), Cuyahoga App. No. 44934, unreported. However, the trier of fact should not consider a lesser included offense unless the evidence would reasonably support both an acquittal in the crime charged and a conviction upon the lesser included offense. State v. Thomas (1988), 40 Ohio St. 3d 213, 533 N.E.2d 286, paragraph two of the syllabus; State v. Williams (1980), 64 Ohio St. 2d 382, 415 /1\ R.C. 2905.02 defines abduction and provides in pertinent part: (A) No person, without privilege to do so, shall knowingly do any of the following: (1) By force or threat, remove another from the place where he is found; (2) By force or threat, restrain another of his liberty, under circumstances which create a risk of physical harm to the victim, or place him in fear; (3) Hold another in a condition of involuntary servitude. -10- N.E.2d 303. In accord with our finding above, we believe that no trier of fact could find that Waldon did not terrorize Payne when he forcibly moved her from her apartment and threatened to kill her with the knives he possessed. Payne testified that she feared for her life when she was confined in the car with Waldon. Under the circumstances, we do not believe the trial court erred by deciding not to consider the lesser included offense of abduction. Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. -11- 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. .