COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59617 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION FREDERICK O. DRESSLER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-239724 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. REGIS E. MCGANN, ESQ. CUYAHOGA COUNTY PROSECUTOR 450 Standard Building BY: RICHARD J. BOMBIK, ESQ. Cleveland, Ohio 44114 ASSISTANT COUNTY PROSECUTOR The Justice Center DANIEL G. WIGHTMAN, ESQ. 1200 Ontario Street SMITH & SMITH Cleveland, Ohio 44113 110 Moore Road Avon Lake, Ohio 44012 - 1 - DYKE, J.: Defendant-appellant, Frederick Dressler, was convicted of one count of rape (R.C. 2907.02) and three counts of gross sexual imposition (R.C. 2907.05). Defendant appeals his conviction for rape and assigns a single error for our review. I THE JURY VERDICT AGAINST APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT ALL THE ESSENTIAL ELEMENTS OF THE CRIME OF RAPE, THUS CREATING REVERSIBLE ERROR. Defendant was convicted of raping his fifteen year old daughter. The record shows that the victim was the second oldest of defendant's eight children and lived with her parents until the day she reported her father's attacks to the Lakewood Police Department. The victim at that time moved in with her maternal uncle and his wife where she continued to reside during the course of her father's trial. The victim testified that in May or June of 1988 in the early morning hours, she was awakened when her father came into her bedroom. She stated that her father started to feel and suck her breasts and that he placed his finger inside her vagina. The victim stated she was very scared by her father's actions and could not move. She further stated that her father performed cunnilingus upon her. When the incident was over, defendant told the victim that he loved her and that she was not to tell her mother. - 2 - Defendant, on several more occasions, continued this activity against his daughter. The record shows that defendant performed cunnilingus upon his daughter only during the first attack. In the remaining attacks, defendant continued to go to where his daughter slept in the early morning hours and feel her breasts, suck on her breasts, place his finger in her vagina and feel her vaginal area. In July, 1988, the victim told her mother about what was happening and a family conference took place between the victim and her parents, whereupon her father stopped molesting her for a brief period of time. Defendant, however, resumed the activity of sexually molesting his daughter until January, 1989 when he stopped. In April, 1989, after an argument with her father over the degree of respect he was owed, the victim decided she could no longer tolerate living at home. After school one Friday afternoon, the victim instead of going home, went to a friend's house. At 3:00 a.m. that night, the victim, accompanied by two friends, went to the Lakewood Police Department and told the police what her father had done. Ms. Melanie Gifford testified for the prosecution. She stated she was employed as a social worker for the Sex Abuse Department of the Cuyahoga County Department of Human Services in 1989 and that she investigated the victim's allegations. During an interview with defendant, Ms. Gifford testified that defendant - 3 - admitted fondling his daughter and that he stated, "at least I didn't get her pregnant." Neither of the victim's parents picked her up at the police station after the police called the home. Mrs. Dressler gave several reasons for being unable to come to the station and requested the police send a letter instead detailing the allegations. Mrs. Dressler and the couple's oldest child, testified for the defendant. Mrs. Dressler denied that the victim ever approached her about her father's activities and further denied that her daughter had ever stated that she had been sexually molested by her father. Defendant, on appeal, argues the verdict of rape is against the manifest weight of the evidence because the record shows the victim's allegations were made out of retaliation against her father because he had grounded her and imposed strict behavioral guidelines she was to follow. Defendant also argues the victim's testimony that her father performed cunnilingus on her was improperly prompted by the prosecution. 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. Further, the credibility of - 4 - the witnesses is primarily a determination for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2907.02 defines rape and states in relevant part: (A)(1) No person shall engage in sexual conduct with 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, when either of the following apply: (2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. R.C. 2907.01(A) defines sexual conduct as follows: (A) 'Sexual Conduct' means vaginal intercourse between a male and female, and anal intercourse, fellatio and cunnilingus between persons regardless of sex. *** We agree with the state's contention that defendant is simply re-arguing the facts and emphasizing only certain portions of the record. The victim's testimony that her father performed cunnilingus upon her was straightforward and clear. Further, the victim's testimony showed that the victim was scared and was told by an important figure of authority not to tell her mother about what had occurred. We find the elements of rape to have been established. The record shows that on cross-examination, in response to defendant's question, the victim again repeated her testimony that her father performed cunnilingus upon her. Defendant cannot now reasonably complain about the state's "prompting" when he, on cross-examination, elicited the identical testimony. - 5 - The jury in this instance chose to believe the victim's consistent, clear testimony and we find no reason present to disturb their finding. The verdict was not against the manifest weight of the evidence. - 6 - 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. DAVID T. MATIA, P.J., AND PATTON, J., CONCUR. 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. .