COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59619 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION DARYL THORNTON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 26, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-237,474 JUDGMENT : AFFIRMED IN PART AND : REVERSED AND REMANDED IN : PART. 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: David J. Janco 14701 Detroit Avenue No. 555 Lakewood, Ohio 44107 -2- NAHRA, P.J.: On January 24, 1989, Janice Cloud left her house at East 116th and Forrest, where she lived alone, and walked to Dailey's Bar located a few blocks away. She went to Dailey's twice that evening to meet her boyfriend, "Bill", who never appeared there. On her second trip to the bar, Janice arrived at approximately 12:30 a.m. on the morning of January 25th, and listened to reggae music until 2:30 a.m. after which she left and proceeded to walk home on East 116th Street. After walking for a couple of minutes, Janice was approached by a red, two-door Pinto operated by Daryl Thornton, defendant- appellant. Thornton asked her for a light to a cigarette but she did not reply and continued walking. A few moments later, Thornton, who was carrying a brown lunch bag, exited the car and grabbed Janice by her coat and collar. He pulled her into the car through the passenger door. Thornton proceeded to drive to East 130th Street and Buckeye Road where he pulled the car into an abandoned garage across from a Revco. Thornton choked her with her coat and collar and told her, according to Janice's testimony, that she "was going to give him what he wanted, then he would take her home". After she refused to take off her clothes, Thornton then pulled Janice into the back seat with him. Thornton again requested that she take off her clothes. After she refused, Thornton took off her pants, underpants and shoes. Thornton pulled down his pants and underpants and demanded that she perform oral sex so that he -3- could achieve an erection. Janice gazed at Thornton as though his request was absurd; in response, Thornton struck her in the face with his hand. Janice testified that she feared for her life and thought she should comply with Thornton's request, lest she lose her life. Thornton grabbed the back of her neck and compelled her to perform oral sex on him for about fifteen minutes during which he did not ejaculate. Thereafter, Thornton pushed her back, got on top of her, and inserted his penis into her vagina. Thornton forcibly engaged her in sexual intercourse over a one to two hour period during which he re-entered her two additional times and ejaculated four or five times. During such time, Thornton hit her again so that she would turn around, thereby enabling him to re-enter her vagina from behind. Janice testified that Thornton forced her to say "Daryl is good to me" and "I like it" while he engaged in sexual intercourse. After such time, Janice attempted to reach for her clothes, but Thornton pushed her back once more and forced her to perform oral sex on him. After such time, he allowed her to put on her clothes. Thornton proceeded to drive Janice to her house. Once there, she convinced him to wait while she went inside to grab a pen and paper to write down her phone number. However, the number she gave him was of the local fire station. In addition, she wrote down the license plate number of Thornton's car. -4- After Thornton left, Janice walked to the corner and called the police to report the rape. An Emergency Medical Service ambulance arrived about fifteen minutes later. Robin Huff, a paramedic who was working on the EMS ambulance, testified that she observed Janice to be crying and upset. After providing some medical assistance, Huff transported Janice to St. Luke's Hospital. Upon her arrival there, Janice was examined by Paula Vasil, an emergency room nurse, who testified that Janice was tearful and had several bruises. Ms. Vasil questioned Janice about the rape and the story Janice told her mirrored Janice's eventual testimony at trial about what transpired. Another emergency room nurse, Patricia Graves, administered tests from a rape kit on Janice. In addition, Janice was examined by Drs. Reid and Lefkowitz. Detective Will Young, a Cleveland police department patrolman, met Janice at the hospital. She gave Young and his partner, patrolman Saborsky, a physical description of Thornton, the license plate number she had written down, a description of the automobile and the name "Daryl". Detective Young took the information and communicated it to the Bureau of Motor Vehicles. The Bureau of Motor Vehicles linked the license plate to a Kathy Madison of 2007 Sunset Road in Warrensville, Ohio. Detective Young proceeded to such address and spoke with Colson Madison, the stepfather of Kathy Madison. Mr. Madison informed Det. Young that his stepdaughter owned a small red car and had -5- been dating Daryl Thornton on and off for several years. Mr. Madison revealed to Det. Young that he believed his stepdaughter lived in the area of 130th and Buckeye. Thereafter, Det. Young immediately drove to East 130th and Buckeye where he observed the vehicle that Janice had described. Detective Young located Kathy Madison after knocking on several doors. She admitted that she owned the car and that Daryl Thornton was her boyfriend, but offered no other information. The car was processed by Det. Young and towed. Detective Richard Martin of the Cleveland police department's sex crimes unit received Det. Young's report and contacted Colson Madison and Kathy Madison. Unable to obtain any additional information, Det. Martin attempted to contact Janice Cloud. However, he was unable to speak with her until February 2, 1989 since she had moved immediately after the attack. On such date, Det. Martin took a written statement from Janice and showed her a spread of photographs. She immediately identified Thornton as her assailant. Photographs of the vehicle Thornton used were taken at the impound lot to which it had been towed and several latent fingerprints were taken as well. Det. Edward Prinz, of the SIU of the Cleveland police, found fingerprints on the car matching those of both Thornton and Janice Cloud. Joseph Serowik, also of the SIU, testified that he performed tests on Janice Cloud's panties to see whether the seminal stains in them matched Thornton's blood and saliva samples. Serowik -6- determined that Thornton's samples were consistent with the seminal stain found in Janice's panties inasmuch as each contained "H" antigens and that the antigens found in the stain examined could have come from vaginal or seminal fluids or a combination of the two. Serowik further testified that 50% of the black population could have left the particular seminal fluid in Janice's clothing based on his analyses. Kathy Madison testified on behalf of Thornton and asserted that Janice Cloud was playing cards on the evening in question at Madison's house. Madison further revealed that she took a shower and that when she returned to the room she found Janice seducing Thornton. Madison stated that she slapped Janice in the face and told her to leave. On March 21, 1989, Thornton was indicted on three counts. Count one of the indictment charged Thornton with kidnapping pursuant to R.C. 2905.01. Counts two and three of the indictment charged Thornton with rape pursuant to R.C. 2907.02. On April 17, 1989, a capias warrant was issued and Thornton was eventually arrested on November 15, 1989. On March 7, 1990, a jury trial commenced. The trial court denied Thornton's motion for a mistrial at the outset of the case. Thornton contested the trial court's prior grant of the prosecution's motion in limine preventing Thornton from cross-examining Ms. Cloud about the nature of her incarceration. At the close of the state's case, Thornton made a motion for acquittal pursuant to Crim. R. 29 which the trial court overruled. The jury found -7- Thornton guilty of count one and count three of the indictment and not guilty of count two. Thereafter, the trial court sentenced Thornton to five to twenty-five years on each count with such terms running consecutively This appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED BY ADMITTING AN 11 YEAR OLD MUG SHOT OF THE ACCUSED INDICATIVE OF A PRIOR CRIMINAL RECORD SINCE IT VIOLATES THE DEFENDANT'S RIGHT TO DUE PROCESS, AND A FAIR TRIAL. Thornton contends that the trial court erred by admitting into evidence an eleven year old photograph of himself inasmuch as the jury could infer that he had a prior criminal record. As a result, he was denied a fair trial. Before it admitted the four photographs from which Janice Cloud had identified Thornton, the trial court taped over the dates on which the photographs were taken as well as the police identification numbers. Such measure was taken at the request of Thornton's counsel. Our review of the record indicates that counsel for Thornton was satisfied by the trial court's action and did not object to the admission into evidence of the photographs. As a result, any error related thereto was waived. Evid. R. 103(A)(1); State v. Williams (1977), 51 Ohio St. 2d 112, 364 N.E.2d 1364. Notwithstanding such waiver by Thornton, we believe that the trial court's admission of the photographs was proper because the police identification numerals were taped. State v. Wilkinson (1971), 26 Ohio St. 2d 185, 271 N.E. 2d 242, -8- certiorari denied (1971), 404 U.S. 968; State v. Fletcher (Nov. 25, 1987), Cuyahoga App. No. 52906, unreported; cf. State v. Breedlove (1971), 26 Ohio St. 2d 178, 271 N.E.2d 238. The admission of photographs were probative of the proper police procedure in this case and they also corroborated Janice Cloud's testimony of how she was able to identify Thornton as her assailant. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED BY ADMITTING THE TESTIMONY OF JOSEPH SEROWICH (SIC) OVER THE OBJECTIONS OF DEFENSE COUNSEL CONCERNING THE STAIN FOUND ON MS. CLOUD'S PANTIES SINCE ITS PREJUDICIAL EFFECT SUBSTANTIALLY OUTWEIGHED ITS PROBATIVE VALUE. Joseph Serowik, a member of the SIU of the Cleveland police department, testified that the seminal, vaginal fluid found in Janice Cloud's panties had been deposited by someone with "O" type secretors with "H" antigens. He further stated that Thornton and Janice Cloud were both of "O" blood type with "H" antigens and that forty-nine percent of the black population shared such a category. Thornton asserts that the trial court erred by admitting Serowik's testimony insofar as its prejudicial effect outweighed its probative value. We disagree. Evid. R. 403(A) states: Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. -9- In balancing the probative value against the danger of unfair prejudice, the trial court is vested with broad discretion and an appellate court should not interfere absent a clear abuse of discretion. State v. Harcourt (1988), 46 Ohio App. 3d 52, 546 N.E.2d 214. We believe that Serowik's testimony was properly admitted to the extent it was probative of identifying Thornton as Cloud's assailant. His testimony narrowed the number of people who could have been her assailant. Such evidence, while in no way conclusive in and of itself, could assist the trier-of- fact in corroborating Ms. Cloud's testimony. Provided with the relevant scientific data, the jury could attach whatever weight to such evidence it deemed proper. Evid. R. 403(A). As a result, we do not believe the trial court abused its discretion by admitting Mr. Serowik's testimony. Moreover, the evidence establishing defendant's identity was overwhelming. Appellant's second assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED SEPARATELY AND CONSECUTIVELY FOR THE CRIMES OF RAPE AND KIDNAPPING, SINCE THE OFFENSES ARE ALLIED OFFENSES OF SIMILAR IMPORT UNDER OHIO REVISED CODE 2941.25. Thornton asserts that the offenses of rape and kidnapping are allied offenses of similar import within the meaning of R.C. 2941.25. As a result, the trial court should have convicted and sentenced him under only one of the offenses. Thornton argues that he did not possess a separate animus to commit both -10- offenses and that any such animus for the kidnapping was incidental to or part of the rape. R.C. 2941.25 states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more allied offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. In State v. Logan (1979), 60 Ohio St. 2d 126, 397 N.E.2d 1345, syllabus, the Ohio Supreme Court stated: In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this court adopts the following guidelines: (a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions. Here, Thornton transported Cloud in his car to a secluded area a few blocks from the place where he forced her to enter the car. Under the circumstances, we believe that Cloud was restrained -11- only for the purpose of effectuating the rape and that the movement of the victim was not prolonged, but merely incidental to the commission of the rape. See State v. Sherrils (Apr. 5, 1990), Cuyahoga App. No. 56777, unreported; see also State v. Clinc (Feb. 28, 1980), Cuyahoga App. No. 40446, unreported. As a result, we find that the kidnapping and the rape were allied offenses of similar import. As a result, appellant's conviction for kidnapping should be vacated. Appellant's assignment of error is sustained. IV. Appellant's fourth assignment of error states: THE APPELLATE COURT ERRED BY OVERRULING THE ACCUSED'S RULE 29 MOTION SINCE AN APPELLATE COURT MUST REVERSE AND REMAND A CASE FOR RETRIAL WHEN THE FINDINGS OF THE TRIER OF FACT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Criminal Rule 29(A) provides in pertinent part: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The Supreme Court of Ohio has asserted that: Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261, 381 N.E.2d 184, syllabus. Moreover, if there was sufficient evidence for the -12- trier-of-fact to find the defendant guilty beyond a reasonable doubt, this court will not reverse a guilty verdict based on manifest weight of the evidence or that the evidence was insufficient. State v. Brown (1988), 38 Ohio St. 3d 305, 306, (Syl. 4), 528 N.E.2d 523, cert. denied (1989), 109 S. Ct. 1177; see State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922. The weight to be given evidence and the credibility of witnesses are determinations to be made by the trier-of-fact. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. R.C. 2907.02(A)(2), which constitutes the crime of rape as applied herein, states: 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. Thornton contends that the trial court erred by failing to grant his motion for acquittal pursuant to Crim. R. 29(A) at the end of the state's case as well as at the close of trial. He also asserts that the verdict was against the manifest weight of the evidence. Thornton maintains that Cloud's testimony lacked credibility and that such testimony was uncorroborated. We believe that there was sufficient evidence to convict appellant under R.C. 2907.02 and that the judgment was not against the manifest weight of the evidence. In cases of rape, there is no requirement, statutory or otherwise, that a victim's testimony be corroborated by other witnesses as a condition precedent to conviction. State v. Love (1988), 49 Ohio App. 3d 88, 550 N.E.2d 951. Here, Janice Cloud -13- testified that Thornton forced her into his car from the sidewalk, drove to a secluded garage, and forcibly engaged in sexual intercourse with her over a period of almost two hours, all of which was against her will. As mentioned above, the weight to be given evidence and the credibility of witnesses are determinations to be made by the trier-of-fact. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. We find no reason to disturb the trial court's evaluation of the witnesses' credibility. Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed in part and reversed and remanded in part. -14- This cause is affirmed in part and reversed and remanded in part for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, J., and *POLLEX, J., CONCUR. (*SITTING BY ASSIGNMENT: Judge Robert C. Pollex of the Probate/Juvenile Court of Wood County.) JOSEPH J. NAHRA PRESIDING 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. .