COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59686 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CLARA ROBERTSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 244890 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. GAIL R. OETTINGER, ESQ. CUYAHOGA COUNTY PROSECUTOR 2000 Standard Building BY: FRANK C. GASPER, ESQ. Cleveland, Ohio 44113 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Clara Robertson, was indicted on one count of intimidation of a crime victim or witness, R.C. 2921.04, and one count of obstruction of justice, R.C. 2921.32. After a bench trial appellant was convicted on both counts. The trial judge sentenced appellant to two years on the count of intimidation and one and one half years on the second count of obstruction of justice, the sentences to run consecutively. The trial judge suspended the sentences and placed appellant on four years of probation, conditioned upon not coming into contact with the victim of her intimidation, not receiving public assistance and undergoing periodic drug testing. On appeal appellant assigns two errors for review. I THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT FOR INTIMIDATION AND SHOULD BE REVERSED BECAUSE IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BECAUSE THE EVIDENCE SUPPORTING THIS CONVICTION IS INSUFFICIENT AS A MATTER OF LAW TO PROVE GUILT BEYOND A REASONABLE DOUBT. Appellant was convicted of intimidating a crime victim who was also a witness in a criminal case./1\ Appellant contends that /1\ R.C. 2921.04. [Intimidation of crime victim or witness.] No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder the victim of a crime in the filing, or prosecution of criminal charges, or a witness in a criminal case in the discharge of his duty. - 2 - the element of force, necessary for a conviction on the charge of intimidation, was not proven, nor could a rational trier of fact return a guilty verdict based upon the evidence. The victim of the intimidation is the appellant's daughter who was twelve years old at the time of the incident. Appellant's daughter, Viola, had charged the appellant's live-in boyfriend, Leroy, with rape. He was later convicted on this charge. According to Viola's testimony, she had not seen her mother from before the time of the rape until her mother's arranged meeting with her in the parking lot of a grocery store. Viola testified that her mother brought along a friend. Her mother said that this friend and other people her mother knew were willing to testify that Leroy was not at the scene of the rape as Viola had already charged in her statement to the police. Viola testified that her mother had said she just wanted to know the truth. However, other statements made by appellant to the effect that she would be much happier if Leroy were around and that she would love Viola more if Viola would say that Leroy didn't commit the rape, directly contradicted her request for "the truth." Viola testified to feeling scared when her mother suggested that other witnesses would testify against her. Viola admitted to being afraid of her mother because of the way her mother treated Viola's father. She also indicated that she would have liked her mother to love her more. Appellant gave Viola's - 3 - younger brother more attention and toward Viola, "never really kind of like cared" (Tr. 91). After some further discussion, appellant used a pay phone to call the detective handling Viola's charge of rape against Leroy. Appellant indicated to Detective King that Viola had something to say to him. At this point Detective King testified that appellant told him that Viola had come to her and wanted to change her story. Viola's testimony contradicted this statement to Detective King. Once Viola was on the phone she related another version of the rape involving a different man and a different location. Although Viola admits to making up this story on her own, her mother was standing next to her throughout the conversation nodding her head. After returning to the police station and filing this second account of the rape in another statement, Viola went home and wrote a three page letter to her father. She wrote that her second statement was a lie, that she was sorry for having caused him so much trouble and that she wouldn't blame him if he didn't love her anymore. Viola's counselor, appointed to help her through the trauma of having been raped, read the letter written to the father and spoke with Viola. She confirmed that Viola had the feeling that nobody would love her. Viola's father called Detective King and he asked that Viola come down a third time. When Viola came to the police station she told Detective King, according to his testimony, that the - 4 - reason she had changed her story was because appellant had told her that she would love Viola more if she did. Appellant contends that the force or threat of physical harm required by the statute prohibiting intimidation, R.C. 2921.04, is not supported by the testimony. Appellant concedes that force can be of a psychological nature under certain circumstances, but asserts that the testimony does not indicate that this type of force was used. The trial judge's denial of appellant's Rule 29 motion for acquittal is affirmed. The trial judge could have found that the element of force was proven by evidence sufficient to sustain a conviction of intimidation. The issue of the degree of force necessary when intimidation is used by a parent against a minor child has not been presented to this court before. However, the language requiring force in the intimidation statute mirrors the language in the statute prohibiting rape, R.C. 2907.02. Cases involving the rape of minors by parental figures have found that the use of "force need not be overt and physically brutal, but can be subtle and psychological. As long as it can be shown that the rape victim's will was overcome by fear or duress, the forcible element of rape can be established." State v. Fowler (1985), 27 Ohio App. 3d 149, 154. The Ohio Supreme Court determined that "[w]ith the filial obligation of obedience to a parent, the same degree of force and violence may not be required upon a person of tender years, as would be required were the - 5 - parties more nearly equal in age, size and strength." State v. Eskridge (1988), 38 Ohio St. 3d 56, quoting State v. Labus (1921), 102 Ohio St. 26, 38-39. This court considered the relative age, size and strength to be disparate enough to find implicit force used by a father against his adopted son, who was repeatedly abused between the ages of twelve and fifteen. State v. Martin (Dec. 6, 1990), Cuyahoga App. No. 58648, unreported. There exists substantial evidence that appellant had the parental authority, the age, size and strength to have overcome the will of her twelve year old daughter. The child had recently undergone the trauma of being violently raped and assaulted with a knife. She was insecure about her mother's love and affection. The mother had brought someone else with her to the meeting with Viola who was willing to testify against her. Looking at the totality of these circumstances, the trial court could reasonably have found that sufficient evidence of force existed to prove the element in a conviction for intimidation. Appellant contends that a reviewing court is a "thirteenth juror." On the contrary, an appellate court is not a thirteenth juror. State v. Tyler (1990), 50 Ohio St. 3d 24, 33. "It is the minds of the jurors and not the minds of the judges of an appellate court that are to be convinced." State v. Petro (1947), 148 Ohio St. 473, 501. Jurors resolve questions of fact, appellate courts determine questions of law. Here the questions of law presented are whether or not the verdict is against the - 6 - manifest weight of the evidence and whether or not the evidence is insufficient to prove guilt beyond a reasonable doubt. To resolve the question of whether the verdict is 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 weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App. 3d 172 (at paragraph three of the syllabus.) In this case the trial court judge is standing in the jury's place as the trier of fact because the appellant waived her right to a jury trial. The trial court judge had primarily the testimony of Viola, the victim, to consider in reaching a decision. The appellant did not testify so Viola's testimony was not contradicted by appellant's version of the facts. Upon review of the entire record we hold that appellant's intimidation conviction was not against the manifest weight of the evidence. The trial judge did not clearly lose his way nor did he create such a manifest miscarriage of justice that the conviction should be reversed and a new trial ordered. The evidence does not weigh heavily against conviction. The trial judge could have found Viola to be a credible witness and her testimony reliable. - 7 - This court will not reverse a conviction where substantial evidence exists to reasonably find the element of the offense proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Assignment of error No. I is overruled. II THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY OF OBSTRUCTION OF JUSTICE FOR THE REASON THAT THE MERE UNSWORN DENIAL OF THE FACT UPON PRELIMINARY INVESTIGATION CANNOT CONSTITUTE THE OFFENSE OF OBSTRUCTION OF JUSTICE. Appellant was found guilty of one count of obstructing justice./2\ Detective King testified that appellant came to the police station and volunteered the information that she and Leroy were not at home at the time of the rape. It was Leroy's statement upon arrest that both he and the appellant were at home at the time Viola claimed she was raped. Appellant also offered the statement to Detective King that she had seen Viola and that Viola had said nothing to her about the incident. Viola's /2\ R.C. 2921.32 obstructing justice. (A) No person, with purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment of another for crime, or to assist another to benefit from the commission of a crime, shall do any of the following: ... (5) Communicate false information to any person. - 8 - testimony contradicted this statement when she said that she had not seen her mother between the time of the rape and their subsequent meeting in the car at the grocery store. In reference to that meeting appellant told Detective King that her daughter had come to her, saying that she wished to speak with her. Again Viola's testimony contradicts this statement in that she testified that her mother called her at her father's home and asked Viola to meet her in the parking lot. Appellant contends that her statements to Detective King were not given under oath nor under any duty. Appellant also contends that at the time she made statements to Detective King she was not aware of the rape, therefore, she could not have had the requisite purpose to hinder the discovery of a crime under the obstruction of justice prohibition, R.C. 2921.32. Appellant also denies having given false information to Detective King in reference to the phone call she orchestrated between Viola and the detective. Appellant's assignment of error is not well taken. State v. Claybrook (1978), 57 Ohio App. 2d 131, (at paragraph two of the syllabus), does hold that "mere unsworn oral misstatements alone, in response to inquiries initiated by police officers, do not violate R.C. 2921.32." However, Claybrook also holds that "such utterances coupled with overt attempts to prevent the detection of one sought by officers is prohibited conduct." Appellant takes Claybrook's holding out of context. The facts of - 9 - that case indicated that the defendant had done more than merely deny knowing the whereabouts of the person police were seeking. Claybrook's defendant also tried to convince police that they had made a mistaken identification, and stood in the way of the police officer to prevent him from seeing into the house or entering. The court in Claybrook found that these additional hindrances were overt acts and, together with his verbal denial, constituted the offense of obstruction of justice. The Ninth District found a defendant guilty of obstruction of justice under circumstances very similar to this case in State v. Bolyard (June 13, 1990), Lorain App. No. 89 C.A. 4656, unreported. That court held that "false information orally communicated to an investigating officer with purpose to hinder the discovery, apprehension, prosecution, conviction or punishment of another for crime violates R.C. 2921.32(A)(5)." Bolyard, at p. 5. In Bolyard the defendant had given statements to the police which were later found to be untrue in order to give her boyfriend an alibi. The boyfriend had been charged with abusing defendant's one year old son. Appellant's statements, which are found at later points in the investigation to be untrue, in combination can be construed as more than mere misstatements or denials of fact. The trial judge could reasonably have found that they constituted obstruction of justice as oral communications of false information. - 10 - Appellant's assertion that her statements were not given under oath is irrelevant. The statute does not require that the information communicated be under oath. The argument appellant asserts concerning her lack of knowledge about the crime is not valid. Detective King testified that appellant was informed of the charge against Leroy and denied that he did it, giving an alibi for him at that time. She knew enough about the incident to develop a purpose to hinder Detective King in his investigation and discovery of Viola's attacker. It was not necessary for the trial judge to find that the story fabricated by Viola was false information indirectly communicated by the appellant. The other statements constituted enough evidence of false information for that element of the crime to be proven beyond a reasonable doubt. Assignment of error No. II is overruled. 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. NAHRA, J. CONCURS JAMES D. SWEENEY, J., CONCURS (SEE ATTACHED CONCURRING OPINION) 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59686 STATE OF OHIO : : : PLAINTIFF-APPELLEE : C O N C U R R I N G : v. : O P I N I O N : CLARA ROBERTSON : : : DEFENDANT-APPELLANT : DATE: JAMES D. SWEENEY, J., CONCURRING: While I concur with the majority opinion, I believe the decision could have been reached without analogy to R.C. 29907.02, the statute prohibiting rape. Appellant contends that the element of force required for a conviction for intimidating a victim of a crime (R.C. 2921.04) was not supported by the evidence. Specifically, R.C. 2921.04 states: (B) No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder the victim of a crime in the filing or prosecution of criminal charges, or a witness in a criminal case in the discharge of his duty. - 13 - In order to determine whether or not the State met its burden of showing that the appellant exerted the requisite force upon her daughter, we turn to R.C. 2901.01(A) for the definition of force. (A) "Force" means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing. (Emphasis added.) There is no requirement in the definition of force that the compulsion exerted must be physical. Under the facts presented sub judice, the compulsion exerted by the appellant was sufficient to meet the definition of force under R.C. 2901.01(A). The State met its burden for purposes of establishing appellant's guilt. .