COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59709 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION HERBERT COX : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-243664 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor TIMOTHY DOBECK, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: MICHAEL E. MURMAN 14701 Detroit Avenue, #555 Lakewood, Ohio 44107 - 2 - KRUPANSKY, J.: Defendant was indicted on one count of kidnapping, R.C. 2905.01, five counts of rape, R.C. 2907.02, and one count of robbery, R.C. 2911.02. After a jury trial he was found guilty of kidnapping, guilty of two counts of rape, and guilty of robbery. Defendant timely appeals his convictions. The relevant facts follow: Debra Lee was employed by Mr. Reed, a double-leg amputee, to do domestic chores at his apartment in a condemned apartment building located at 1532 Ansel Road in Cleveland. Ms. Lee's testimony follows: Ms. Lee worked for Mr. Reed the morning of September 2, 1989 and received from him a fifty-dollar bill as payment for her wages. She left for a time to do an errand and later returned about 4:30 p.m. As she was walking from the back of the apartment building around the side to enter the front of the building, she saw on the sidewalk four men, one of whom was defendant. Defendant asked her if she would "work a shot" with them, i.e., have sex with them in exchange for cocaine. She said no. Thereupon, she was grabbed by the men and taken through the rear of the apartment building into a bedroom of a vacant apartment. The men locked the bedroom door. Ms. Lee's testimony revealed her top clothing was forcibly removed and defendant took from her bra the fifty-dollar bill Mr. Reed had given her as wages. Defendant also told Ms. Lee she was to perform oral sex on all the men. Defendant beat her and slapped her so Ms. Lee - 3 - complied. Ms. Lee was then forced into the closet of the bedroom. That door was also locked, and the men entered the closet one by one. Ms. Lee performed oral sex with two of the men, then with defendant. Although Ms. Lee was menstruating at the time, defendant also forced her to have vaginal intercourse with him. He then told her he wanted her to perform oral sex again. She refused. Defendant again began beating her. One of the other men told defendant to stop and thereafter the bedroom door was unlocked and Ms. Lee was allowed to escape. Ms. Lee then ran, screaming and crying, to find Mr. Reed who was at the front of the apartment building. Upon seeing Ms. Lee's condition Mr. Reed telephoned for an ambulance. An EMS unit responded to the call and took Ms. Lee to Mt. Sinai Hospital, where she was treated for rape and injuries to her head and face. While at the hospital Ms. Lee gave a description of the men who had attacked her to the police. The officers returned to the area where the incident occurred and conducted a surveillance of the apartment building. They ob- served defendant in the building's parking lot; since he matched Ms. Lee's description of one of her assailants, being approximately 6'4" to 6'5" tall and weighing 240 to 250 pounds and wearing a light green surgical outfit, the officers went to question him. Upon seeing the police officers defendant began to run but he was soon apprehended and arrested. Defendant gave an oral statement to the officers after being informed of his - 4 - rights, admitting that he "did have sex" with the victim earlier, however, it was consensual. The officers took defendant to Mt. Sinai Hospital where Ms. Lee identified him as one of her assailants. Defendant was subsequently indicted on a seven count indictment: count one, kidnapping, R.C. 2905.01; counts two through six, rape, R.C. 2907.02; and count seven, robbery, R.C. 2911.02. Defendant was tried by a jury. After the close of the state's case the trial court dismissed count six of the indict- ment. The jury found defendant guilty on counts one, four, five and seven. Defendant now appeals his convictions, citing three assignments of error for review. Defendant's first assignment of error follows: THE JURY'S VERDICT OF GUILTY AS TO COUNTS 1, 4, 5, AND 7 OF THE INDICTMENT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment of error lacks merit. Defendant argues the state's evidence regarding his guilt was unreliable and inconclusive. However, his argument is unpersuasive. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test - 5 - is much broader. The 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.*** See Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. Martin, supra, at 175. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 1969. The reviewing court must therefore analyze each element of the underlying offense when considering defendant's argument that his conviction was against the manifest weight of the evidence. The jury found defendant guilty of, inter alia, kidnapping, in violation of R.C. 2905.01, which states in pertinent part as follows: 2905.01 Kidnapping. (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: * * * - 6 - (2) To facilitate the commission of any felony or flight thereafter; (3) To terrorize, or to inflict serious physical harm on the victim or another; (4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will; Defendant was also found guilty of rape, in violation of R.C. 2907.02, which states in pertinent part as follows: (A)(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. Defendant argues evidence on the element of force in each of these two crimes was lacking in that the testimony of the victim, Ms. Lee, was not credible. However, Ms. Lee testified defendant beat and slapped her and that she sustained an injury to her head and a swollen face. Ms. Lee's testimony concerning the use of force was corroborated by other evidence presented by the state. Mr. Reed, Ms. Lee's employer, testified as follows: Q. Could you tell us what you observed about Miss Lee when she came back at 5:00? A. She come back and did a little more cleaning up. Went to go out the door, to go down to the laundry to see about the clothes. And that's when it all broke loose. I heard somebody screaming. I thought it was maybe a little girl in the building, you know. Couldn't find out. It was her. She was running up the hallway. Q. What was she saying to you? A. She said she was raped. - 7 - Q. What can you tell me about her physical condition when this happened? A. Well, only thing I can tell, I called the hospital. They come over and picked her up. Q. In the EMS? A. Yeah. Furthermore, the hospital records pertaining to the victim entered into evidence indicate Ms. Lee had a contusion on her head on the left temple. With respect to the robbery conviction, R.C. 2911.02 states in relevant part the following: 2911.02 Robbery. (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another. Defendant argues since Ms. Lee made no mention of the fifty dollars to Mr. Reed immediately after the incident and the money was not found on defendant's person, the state presented no evidence a theft occurred. However, this overlooks the testimony of Ms. Lee who stated the fifty-dollar bill was in her bra and that defendant took it when her clothes were removed. This testimony was corroborated by Mr. Reed, who recalled giving Ms. Lee the fifty-dollar bill the day of the incident. Furthermore, the emergency medical technician, Glen Burks, testified that when the EMS unit arrived Ms. Lee "was in a very highly emotional state." He also testified she was crying and "appeared to be a - 8 - typical rape victim." It is not unreasonable for the jury to assume Ms. Lee might not have mentioned the theft of the money at such a time. Therefore, her failure to mention the theft does not constitute, as defendant suggests, a complete lack of evidence on the robbery charge. Moreover, defendant's testimony at trial was inconsistent with his statements given to police after his arrest; his testi- mony was peppered with "I don't know" in response to many questions and his testimony concerning his actions prior to, during and after the incident was confusing. The jury is in a better position to observe the witnesses; therefore, witness credibility and weight of the evidence are primarily for the jury to assess. State v. DeHass, supra. Thus, the record in the case sub judice reflects that weighing all the evidence and reasonable inferences, considering the testimony and credibility of the state's witnesses and the defendant, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. Accordingly, defendant's first assignment of error is over- ruled. Defendant's second assignment of error follows: THE TRIAL COURT ERRED BY GRANTING THE PROSECU- TION'S MOTION IN LIMINE BARRING THE DEFENSE FROM INQUIRING WHETHER THE COMPLAINANT WAS A PROSTITUTE AS IT VIOLATES THE APPELLANTS (sic) SIXTH AMEND- MENT RIGHT TO CONFRONTATION AND FOURTEENTH AMEND- MENT RIGHT TO DUE PROCESS. This assignment of error also lacks merit. - 9 - Defendant argues the trial court should have admitted inquiry into Ms. Lee's sexual reputation because it was directly probative to the issue of his sole defense, which was that Ms. Lee consented "to engage in sex for hire." He claims the denial of the inquiry violates his constitutional rights. However, his argument is not persuasive. The trial court excluded the inquiry into Ms. Lee's sexual reputation based upon R.C. 2907.02(D), which provides in per- tinent part as follows: (D) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflam- matory or prejudicial nature does not outweigh its probative value. Regarding this statute, in State v. Williams (1986), 21 Ohio St. 3d 33, the Ohio Supreme Court stated: The rape shield law in Ohio, R.C. 2907.02(D), essentially prohibits the introduction of any extrinsic evidence pertaining to the victim's sexual activity. The exceptions to this prohibi- tion are evidence of the origin of semen, preg- nancy, or disease, or of the victim's past sexual activity with the offender. In State v. Gardner (1979), 59 Ohio St. 2d 14 [13 O.O. 3d 8], this court set forth the major reasons behind the enactment of the rape shield law: "*** First, by guarding the complainant's sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than the - 10 - defendant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process." The evidence at issue in this case is undeniably inadmissible under the rape shield law. Appellee claims, however, that the appli- cation of the rape shield law in this case violates his Sixth Amendment right to confront witnesses against him. * * * *** [T]he court acknowledged that in some circumstances evidence which the rape shield law would render inadmissible would nevertheless be admitted in furtherance of the defendant's con- stitutional rights. In Gardner, the excluded evidence was designed merely to impeach the victim's credibility, and thus had no probative value as to the alleged rape itself. * * * The contested issue in this case is consent (emphasis in original), which directly relates to an element of the crime of rape. The victim testified on direct examination that she never (never emphasized in original) consents to sex with men. The testimony proffered by appellee directly refutes this contention. As in Davis, this evidence is submitted for more than mere impeachment of a witness' credibility. The victim's credibility is indeed being impeached; however, the proffered evidence has a more important purpose, which is to negate the implied establishment of an element of the crime charged. For this reason, the probative value of the testimony outweighs any interest the state has in exclusion. It is also significant that the state (state emphasized in original) first elicited the testi- mony which inferred lack of consent. Had appellee initiated this inquiry, he would be bound by the victim's answer. Gardner, supra. (Emphasis added.) - 11 - A review of the record in the case sub judice reveals defendant initiated the inquiry which inferred lack of consent. On cross-examination of the victim the following questions and responses were elicited: Q. But did you say this whole thing initiated, was started or began over conversation about rock cocaine? A. Uh-huh. Q. And you're saying that they're the ones that offered you the cocaine? A. Yes. Q. Are you saying it wasn't the other way around? Did you ask these gentlemen to have sex with you for drugs? A. No, I didn't. I didn't have no drugs. (Emphasis added.) Furthermore, on cross-examination of the state's witness, Det. Hastings of the Cleveland Police Department's Sex Crimes Unit, the following exchange occurred: Q. With respect to Debbie Lee, do you run her name through any of the computers to check on her? A. I don't believe that we did, no. I don't recall. Q. I was curious, because my client had indicated to you, during his statement or statements, that she was a strawberry?/1\ /1\The term "strawberry" is not defined in the transcript, however, in the vernacular of the street it is common knowledge a "strawberry" is a female who engages in sex in exchange for drugs. - 12 - The state's objection to this inquiry was thereupon sustained by the trial court and further inquiry into sexual reputations was prohibited. From the foregoing it is clear that defendant raised the issue of consent during the state's case-in-chief. That being so, he was bound by the victim's answer. Williams, supra, at 36. Therefore, the trial court properly applied R.C. 2907.02(D) and defendant was not thereby deprived of his constitutional rights. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: THE JURY'S VERDICT OF GUILTY AS TO KIDNAPPING AND RAPE MUST BE REVERSED SINCE RAPE AND KIDNAPPING ARE ALLIED OFFENSES OF SIMILAR IMPORT. This assignment of error also lacks merit. Defendant argues his convictions for both kidnapping and rape are improper under R.C. 2941.25 since the same contempora- neous conduct served as the basis for the convictions and the acts were not committed with separate animus. This argument is not persuasive. R.C. 2941.25 provides as follows: 2941.25 Multiple counts. (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. - 13 - (B) Where the defendant's conduct constitutes two or more 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. Regarding R.C. 2941.25, the Ohio Supreme Court has recently stated the following: Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses corres- pond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. (State v. Blankenship [1988], 38 Ohio St. 3d 116, 117, 526 N.E. 2d 816, 817, approved and followed.) Newark v. Vazirani (1990), 48 Ohio St. 3d 81, syllabus. In State v. Logan (1979), 60 Ohio St. 2d 126, the court established the following guidelines to determine whether kidnapping and rape are committed with a separate animus as to each under R.C. 2941.25(B): (a) Where the restraint or movement of the victim is merely incidental to a separate under- lying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restrained 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 - 14 - 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. See, also, State v. Carter (Nov. 14, 1991), Cuyahoga App. No. 59223, unreported. In the case sub judice, the evidence reveals the offenses of kidnapping and rape were not allied offenses of similar import. The victim was forced from the outside of the apartment building into the bedroom of a vacant apartment. The bedroom door was then locked as was the bedroom closet door where the forced sex acts were performed. Ms. Lee's assailants, including defendant, locked both the bedroom and the closet doors, thus insuring secrecy and preventing any means of escape. In addition, defendant forcibly undressed and robbed Ms. Lee by taking a fifty-dollar bill from her bra and stated he deserved it. Defendant also ordered Ms. Lee to perform oral sex upon the others and himself, beating and slapping her to force her to comply. Later, after forcing her to have vaginal intercourse with him, defendant ordered Ms. Lee to perform oral sex upon him again; when Ms. Lee refused, defendant proceeded to beat her again. Ms. Lee had to remain in the room until defendant unlocked the doors. Defendant's asportation of his victim-into a vacant apartment in a condemned building with no other - 15 - tenants, locking the doors to the bedroom and the closet, and beating and robbing her-thus subjected Ms. Lee to a substantial risk of an increase in harm. State v. Logan, supra. Ms. Lee was secreted and restrained not merely for the purpose of effectu- ating a rape but also to effectuate repeated acts of rape by defendant and his friends in addition to the other acts of violence performed upon her. State v. Carter, supra. Therefore, on the facts of the case sub judice, defendant was properly convicted of both kidnapping and rape as they were separate offenses and were committed with a separate animus as to each. Accordingly, defendant's third assignment of error is overruled. Judgment affirmed. - 16 - 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. FRANCIS E. SWEENEY, P.J., CONCURS; JOHN F. CORRIGAN, J., CONCURS IN JUDGMENT ONLY (See Concurring Opinion Attached) JUDGE BLANCHE KRUPANSKY 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. 59709 : STATE OF OHIO : : : C O N C U R R I N G Plaintiff-Appellee : : O P I N I O N vs. : : : HERBERT COX : : : Defendant-Appellant : : DATE: JANUARY 30, 1992 J.F. CORRIGAN, J., CONCURS IN JUDGMENT ONLY: While I concur with the decision reached by the majority, I write separately to express my views as they differ from the majority under appellant's second assignment of error. The majority overrules appellant's second assignment of error on the basis that the issue of the victim's consent was first raised by the defendant, and therefore, is not subject to cross-examination on credibility grounds. According to the majority, the defense is "bound by the victim's answer" that she was not a "strawberry" and further evidence in that regard is precluded under R.C. 2907.02(D). See, State v. Williams (1986), 21 Ohio St. 3d 33. The testimony sought to be introduced by appellant went to more than just the credibility of the victim, it concerned a - 2 - critical element of the offense charged, lack of consent, i.e., force. That being the case, evidence should have been admitted if it was of sufficient probative value to satisfy the Rules of Evidence. Evidence that a complainant has a reputation as a prostitute is not "sufficiently probative" of consent to outweigh the state's legitimate interest in excluding the testimony, at least in cases where there is no suggestion that the activities in question were entered into for money. State v. Gardner (1979), 59 Ohio St. 2d 14, 18; State v. Price (November 27, 1989), Cuyahoga App. No. 55825, unreported. In the case at bar, a suggestion was made that the activities in question were entered into in exchange for drugs. Under Gardner and Price, therefore, the possibility at least arises that evidence of appellant's alleged reputation as a "strawberry" could have been admitted into evidence for purposes of negating the element of lack of consent. Therefore, I would not prohibit the testimony on this issue on the basis of when the issue of consent was raised at trial. Williams, supra. Even though the suggestion arose that the victim entered into a transaction for drugs, the physical evidence of lack of consent, i.e., contusions on victim's head, witness testified he heard screams, was substantial. I would prohibit the introduction of this evidence on the basis that the probative value of such evidence is minimal compared to possible prejudicial effect. .