COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59183 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JONATHAN BARRETT : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 245403-A JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 2000 Standard Building BY: CARMEN M. MARINO, ESQ. 1370 Ontario Street ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Jonathan Barrett, was indicted on one count of felonious assault, R.C. 2903.11, one count of kidnapping, R.C. 2905.01, six counts of rape, R.C. 2907.02, and two counts of aggravated robbery, R.C. 2911.02. After a jury trial appellant was convicted on all counts except one (count nine, aggravated robbery) and sentenced to one term of three to fifteen years, seven terms of ten to twenty-five years and one term of five to twenty-five years, to be served consecutively. On appeal appellant assigns the following error for review: THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all of the elements of an offense have been proved beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169 (at syllabus). In considering the claim that the conviction was against the manifest weight of the evidence ... [t]he 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weights heavily against the conviction. - 2 - State v. Martin (1983), 20 Ohio App. 3d 172 (at paragraph three of the syllabus.) In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines that may be taken into account by a reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. Whether the evidence is uncontradicted; 3. Whether a witness was impeached; 4. What was not proved; 5. The certainty of the evidence; 6. The reliability of the evidence; 7. Whether a witness' testimony is self-serving; 8. Whether the evidence is vague, ... conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App. 3d 10 (at syllabus). Jeffrey Harris testified that on the evening of October 2, 1989 appellant and Ronald Russell talked about robbing some girls. (Tr. 210.) Appellant's co-defendant, Ronald Russell, pleaded to one count of robbery and testified that on the evening - 3 - of October 2, 1989, he and others, including appellant, were drinking when appellant hit a woman with a wine bottle. (Tr. 54- 57.) Ronald's brother, Alphonso Russell, pleaded to "accessory to rape" and testified as follows: on the evening of October 2, 1989 appellant came to him and told him he had a girl in a car in a neighbor's garage and that his underwear had blood on it from having sex with the girl "from the behind." (Tr. 72-73.) Appellant asked him if he wanted a "blow job" and after he told him he did the woman did it. (Tr. 73.) After appellant asked her to take off her ring and let him see it the woman gave it to him. (Tr. 74) Appellant also showed him her necklace. (Tr. 77.) Appellant asked him to say that appellant wasn't there. (Tr. 88.) Kathy Evans testified as follows: on the evening of October 2, 1989, the other victim (hereinafter called Ms. W) and she had a conversation with Lamarr Waller. Appellant and a bigger man approached. Appellant asked Evans if they had a problem and hit her in the face with a bottle, causing a black eye and weak vision. (Tr. 94.) She ran to call the police and saw appellant take Ms. W to the back of the motel while holding her by the neck and putting his hands in her pockets. (Tr. 95.) Lamarr Waller testified as follows: appellant asked Ms. Evans if she had a problem and then smacked her with a wine bottle. (Tr. 122.) Appellant then collared Ms. W against a building. (Tr. 123.) Several hours later he saw Ms. W, who he - 4 - described as disheveled, emotionally unstable, crying, shaky and with dirty and torn clothes. She told him she had been raped by two men. (Tr. 128.) Ms. W testified as follows: two men asked if they had any money and the bigger man hit Ms. Evans with a bottle. Appellant grabbed her and forced her to walk with him and climb over fences to reach a garage. He threatened to kill her if she didn't do as he said. He took her necklace, ring, cigarettes and lighter. After they climbed the first fence he made her have oral sex with him and took off her clothes. (Tr. 155.) He forced her over another fence and he made her have oral sex and penetrated her anus. Appellant forced her into a car and "continued to force himself on me repeatedly. And into my vagina and into my anus. He would make me have oral sex with him after that." (Tr. 158.) He went next door after telling her she would be killed if she left the car. (Tr. 159.) Upon his return he told her to make his friend feel good or appellant would kill her. (Tr. 160.) The other man told her to perform oral sex on him and she did as she was told. (Tr. 160.) Appellant told her that they'd be back and gave her her clothes at her request. (Tr. 161.) She returned to her apartment and spoke to Mr. Waller. (Tr. 162.) Officer Jerome Johnson testified that he interviewed Ms. W at the hospital and found her hysterical and extremely upset. (Tr. 233.) At her direction he found underpants, a bra and a sweater in an automobile in a garage. (Tr. 236-237.) - 5 - Appellant testified that he was at his sister's on the night in question. He denied having anything to do with the incidents. (Tr. 312-313.) On appeal appellant contends that the fact that Ms. Evans was assaulted and Ms. W was robbed and sexually assaulted are "uncontroverted" but that the appellant was a victim of mistaken identity. Appellant argues that the identification procedure was tainted and the identification questionable, the co-defendant's lied to get favorable pleas, the physical evidence was non- existent and the appellant had an alibi. Ms. W testified as follows: while she was hospitalized after the incident a detective presented her with several photographs and she picked the wrong man as her attacker. (Tr. 163-164.) She later saw another group of photographs and identified appellant. (Tr. 164.) She later identified appellant at the preliminary hearing and at trial had no doubt he was the man. (Tr. 165.) On cross-examination she conceded that it had been dark (Tr. 180.) She admitted that when she was shown the first array the police had not told her that one of the suspects was appellant (Tr. 185) but at the time she viewed the second set she knew appellant was in custody (Tr. 191). On re-direct examination she said that initially she saw appellant "for a short moment" by the light from the street lights and later saw him a little because there was a light by the door of the house near the garage. (Tr. 203.) - 6 - She insisted that there was no question in her mind that appellant raped her. (Tr. 204.) Although Ms. W knew appellant was in custody when she picked him from the second array we note that Warren identified appellant as the man who grabbed Ms. W and pulled her toward the motel and Waller stated that appellant collared Ms. W up against a building. Although Alphonso and Ronald Russell pleaded to lesser offenses and testified against appellant to satisfy the plea agreement we note that Ronald Russell's testimony that appellant hit Evans was unnecessary in light of the testimony of Waller and Evans. Alphonso Russell's testimony corroborated Ms. W's story that appellant was there but Evans and Waller also identified appellant as the man who forcibly took away Ms. W. The jury was aware of the pleas and able to consider those facts while weighing the credibility of the Russells. Appellant's alibi was never established. His sister was asked where she was on the evening in question (a Monday) and she replied, "As far as I know I was at home watching Monday night football, which I do every Monday night." When asked who was there she answered, "Well, if I can recall, my husband, ... [appellant's] girlfriend was there and if I'm not mistaken [appellant] was there. I'm not 100 percent sure, because John, since the end of July and all through September and October John was over my house most every day and he watched a lot of Monday - 7 - night football games with us, and some nights, night games." On cross-examination the prosecutor asked her if it would be fair to say that she had no memory or recollection and she didn't know where appellant was and she replied, "It would be fair to say that I'm not 100 percent sure. Just that I know that usually John is there on Monday night [but she was] not 100 percent [sure] ..." (Tr. 302-303.) Appellant attempted to establish an alibi but not only was his sister unable to testify that appellant was at her home she was not even sure that she was watching the game. Physical evidence is not essential for a conviction. The testimony of a victim is sufficient and often overwhelming. As in State v. Parker (1990), 53 Ohio St. 3d 82, appellant "failed to object to his identification .... We therefore must determine whether plain error was committed." Id. at 87. In order to suppress identifi- cation testimony, there must be "... a very substantial likelihood of irreparable misidentification." Simmons v. United States (1968), 390 U.S. 377, 384; accord State v. Perryman (1976), 49 Ohio St. 2d 14, vacated on other grounds (1978), 438 U.S. 911. In Neil v. Biggers (1972), 409 U.S. 188, 199-200, the United State Supreme Court set forth the following factors to be considered in examining an identification procedure and its impact: [W]hether under the 'totality of the circum- stances' the identifica- tion was reliable even - 8 - though the confrontation procedure was suggestive. As indicated by our cases, the factors to be con- sidered in evaluating the likelihood of misidentifi-cation include the oppor-tunity of the witness to view the criminal at the time of the crime, the witness' degree of atten- tion, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confronta-tation. The focus, under the "totality of the circumstances" approach, is upon the reliability of the identi- fication, not the identification procedures. State v. Lott (1990), 51 Ohio St. 3d 160, 175, 555 N.E. 2d 293, 308; Manson v. Braithwaite (1977), 432 U.S. 98, 114 ("... reliability is the linchpin in determining the admissibility of identification testimony ...."); State v. Moody (1978), 55 Ohio St. 2d 64, 67, ("[a]lthough the identification procedure may have contained notable flaws, this factor does not, per se, preclude the admissibility of the subsequent in-court identification."). State v. Jells (1990), 53 Ohio St. 3d 22, 27. In considering the factors set out above we note that although it was dark for most of Ms. W's ordeal she did have two opportunities to see her attacker. Her observation was far from - 9 - casual. Although there was no prior description she was quite certain of her identification, which was made only eleven days after the attack. We find that, although the procedure was suggestive, under the totality of the circumstances, the identification was reliable and there was not a very substantial likelihood of irreparable misidentification. There was no plain error. The verdict was not against the manifest weight of the evidence. Judgment affirmed. - 10 - 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. JAMES D. SWEENEY, J., CONCURS. FRANCIS E. SWEENEY, J., CONCURS IN JUDGMENT ONLY 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. .