COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59826 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : COY JONES, JR. : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 239324. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Nancy McDonnell Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: William H. Smith, Esq. 1276 West 3rd Street, #100 Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Defendant-appellant Coy Jones, Jr. ("Jones") appeals from his jury-trial conviction of: Count One--attempted kidnapping with an aggravated felony specification [R.C. 2905.01, 2923.02]; and, Count Two--gross sexual imposition with a violence specification [R.C. 2907.05]. For the reasons adduced below, we affirm. The record reveals that on May 5, 1989, in the mid- afternoon, one Joey Ortiz ("Joey"), date of birth July 2, 1978, went to a Dairy Mart convenience store at West 50th Street and Franklin Avenue, Cleveland, to purchase some candy. Joey lives with his grandparents at 1424 West 50th Street. As he approached the entrance to the store, Jones allegedly grabbed Joey's arm and asked Joey if he would like to go to Jones' house which was adjacent to the Dairy Mart store. Joey declined this request. Joey also testified that Jones then touched Joey's genital area and thigh on the outside of the clothing. Joey, in fear and crying, broke free of Jones' grasp by pulling very hard and ran into the convenience store. Joey told the clerk at the store, Adaline Turner ("Turner"), what had occurred. Turner, testifying on behalf of the prosecution, stated that Joey came into the store crying and appeared very upset and said that a man had grabbed him and touched his "privates." Turner looked outside the store and saw Jones standing near the building. Jones then came into the store. Joey ran to the back of the store as soon as Jones entered. -3- Turner then stated that Jones approached her at the register and: asked for a dollar to buy some more beer; made lewd remarks to her; asked to use a restroom. Turner believed that Jones was intoxicated. Jones then left the store at the request of Turner's supervisor. Joey left sometime thereafter. Jones returned to the store a few minutes later and purchased a bottle of beer for one dollar and twenty cents./1\ Jones left the store after making this purchase. A short time later, Turner noticed a bus drop off a group of children at the bus stop near the store. Through the large glass windows of the storefront, Turner could see Jones talking with these children, the shocked expressions on the childrens' faces, and the children then running away. One of these children allegedly told Turner that the man was trying to get them to go to his home for sexual activities. Turner saw one of these children being fondled briefly by Jones outside the store. Jones allegedly told Turner that he asked the children to go home with him and drop their pants. R. 108-110. Turner admonished Jones telling him that he should not approach children in this fashion. In the meantime, Joey had gone home and told his grandfather, Miguel Ortiz, what had happened. Joey's grandmother, Barbara Ortiz, testified that she, her husband, and Joey went to Jones' house at about 4:30 - 5:00 p.m. They found /1\ Prior to his return, Turner stated that customers had complained of Jones trying to panhandle money from store patrons in the parking lot. -4- Jones seated on the front porch drinking beer from a bottle concealed partially in a paper bag. According to Mrs. Ortiz, Jones appeared drunk. The police arrived on the scene at Jones' house at approximately 4:53 p.m. Cleveland police officer Jeffrey Stanczyk, who responded to the call with his partner, testified that he was met at the Jones' property by a child who was crying and scared, and the child's grandfather. The child told Officer Stanczyk that Jones had grabbed him and touched him in the genital area. The officer approached Jones, who was seated on the porch. Jones, according to the officer, appeared intoxicated and smelled of beer. After speaking with Jones, the officer placed the suspect under arrest. Cleveland police detective Robert Matuszny, testifying for the prosecution, stated that he investigated the claims of Joey by interviewing Joey, his grandparents, Jones, and Turner. Following this investigation, the detective formally charged Jones by obtaining a true bill from the county grand jury. The State then rested its case. The defense chose not to present evidence and likewise rested. The defense then moved for acquittal on the ground of diminished capacity as a result of voluntary intoxication. This motion was overruled. Following the closing arguments and charge to the jury, the jury returned a verdict of guilty on both counts. Subsequently, the court sentenced Jones to: Count One--12 to 15 years imprisonment minimum actual; Count Two--4 to 10 years -5- imprisonment; plus costs; said sentence to be served consecutively and consecutive with the Cuyahoga County Common Pleas Court criminal case number 236377./2\ This appeal raising two assignments of error followed. These assignments will be discussed jointly. I THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL WHEN APPELLANT WAS CONVICTED WITH EVIDENCE INSUFFICIENT AS A MATTER OF LAW, THEREBY DEPRIVING HIM OF DUE PROCESS OF LAW AND GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS. II THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard of review to be applied to these assignments of error was stated in State v. Thomas, et al. (September 20, 1990), Cuyahoga App. Nos. 57311 and 57327, unreported at p. 4, as follows: In this assignment of error, appellants argue insufficiency of the evidence and manifest weight of the evidence. The test for sufficiency of the evidence is stated in State v. Martin (1983), 20 Ohio App. 3d 172, at paragraph two of the syllabus, as: *** whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the /2\ Trial court case number 236377 is the subject of Jones' notice of appeal in Cuyahoga App. No. 59825. -6- offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. See also, State v. Bridgeman (1978), 55 Ohio St. 2d 261; State v. Davis (1988), 49 Ohio App. 3d 109; and Crim. R. 29(A). Jones was indicted for attempted kidnapping and gross sexual imposition as follows: Count One: Attempted Kidnapping, in violation of R.C. 2905.01(A)(4),(C), 2923.02(A), and 2907.01(B),(C), providing in pertinent part: 2905.01 Kidnapping. (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen, 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: -7- * * * (4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will; * * * 2923.02 Attempt. (A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense. 2907.01 Definitions. (B) "Sexual contact" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. (C) "Sexual activity" means sexual conduct or sexual contact, or both. Count Two: Gross Sexual Imposition, in violation of R.C. 2907.05(A)(3) which provides in pertinent part: 2907.05 Gross sexual imposition. (A) No person shall have sexual contact with another, not the spouse of the offender; ... when any of the following apply: * * * (3) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of such person. In the present case, there was sufficient evidence presented, which, when viewed in a light most favorable to the prosecution, satisfy the basic elements of the offenses in -8- question. Also, the evidence presented supports Jones' conviction. Assignments are overruled and the convictions are affirmed. Affirmed. -9- 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., and ANN MCMANAMON, J., CONCUR. JAMES D. SWEENEY 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. .