COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60106 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION SHIGALI JONES, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 2, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-238,869 JUDGMENT : AFFIRMED. 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: James R. Willis Bond Court Building 1300 East Ninth Street Suite 610 Cleveland, Ohio 44114 -2- NAHRA, P.J.: Shigali Jones appeals his convictions of kidnapping, aggravated robbery, gross sexual imposition, and possession of criminal tools. For the reasons set forth below, we affirm. On March 29, 1988 at about 10:45 P.M., Alfreda Frye was sitting in her car with the engine running in a Pick-N-Pay grocery store parking lot on Coventry Road in Cleveland Heights. Frye stopped at Pick-N-Pay because she was experiencing spasms in her legs. She took medication and was waiting for it to take effect before she continued home. A young man knocked on her car window. Thinking that it was her nephew, Frye opened the window. The young man was not Frye's nephew. He put one hand over Frye's mouth. The other hand pressed a hard object at Frye's neck. The man threatened to kill her if she screamed. He hit her ear and the side of her head with the object. He also grabbed both of her breasts and squeezed them. He took Frye's gold and diamond necklace. When the man attempted to get into the car on the passenger side, Frye was able to escape. Frye reported these events to police. She looked through several hundred photographs at the Cleveland Heights police station on a few occasions but did not find her attacker's photograph. She assisted police in creating a composite of the attacker. On April 18, 1989, Pamela Moldstad was walking home at 5:00 or 5:30 P.M. to her apartment building on Lancashire, within one block of the Pick-N-Pay grocery store on Coventry Road in Cleveland Heights. Moldstad noticed a young black man following -3- her. The man came up to her as she was about to go into the foyer. He said he had just moved in and was having parking problems. Moldstad went into the building. The door going to the individual apartments required a key, and the young man, who had been standing outside the outer door, ran in and caught the inner door before it closed. The young man came in looking at the different apartments, while saying that his wife was not home. He stood in front of an apartment where three women lived. Moldstad went into her apartment and chained the door. She saw the young man walking down the street and called police with a description. Police officers in an unmarked car close by saw a man matching the description two blocks from the apartment building. They brought Pamela Moldstad to the scene. She told the officers that the young man was the same one who spoke to her in her building. The man, Shigali Jones, was arrested and searched. Police found a set of brass knuckles in his possession. Sergeant Robert Wilson then called Alfreda Frye, since he thought Jones matched Frye's description of her attacker. He showed Frye a photo array. Frye asked if the young man had a scar or birthmark near his wrist. Wilson photographed Jone's wrists, which revealed such a mark. Frye then observed a line-up including Jones. The men in the line-up were instructed to speak so she could hear their voices as well. Frye identified Jones as her attacker. -4- Jones was charged with kidnapping, aggravated robbery and gross sexual imposition arising out of the events involving Frye. He was also charged with aggravated burglary and possession of criminal tools arising out of the incident in Moldstad's apartment building. Jones filed a notice of alibi and moved to suppress eyewitness identification testimony. The motion was denied. During trial, the aggravated burglary charge was dismissed. Jones was convicted on the four remaining charges and brought this timely appeal. I. Appellant's first assignment of error reads as follows: THE COURT ERRED AND THE ACCUSED WAS DEPRIVED OF DUE PROCESS WHEN THE COURT SUMMARILY DENIED THE DEFENDANT'S MOTION TO SUPPRESS CERTAIN IDENTIFICATION TESTIMONY. Appellant argues that the trial court erred when it denied his motion to suppress and failed to state the reasons for its denial as required by Crim. R. 12(E). Reliability is the basis for determining whether identification evidence is admissible. Manson v. Braithwaite (1977), 432 U.S. 98, 114. Five factors to be considered in evaluating reliability include: the opportunity of the witness to view the criminal at the time of crime, the witness' degree of attention, 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 confrontation. * * * -5- Neil v. Biggers (1972), 409 U.S. 188, 199-200; see also State v. Jells (1990), 53 Ohio St. 3d 22, 27, U.S. certiorari denied (1991), U.S. 111 S. Ct. 1020. Before determining reliability pursuant to Neil v. Biggers, supra, the court must first determine if the identification procedures used were impermissibly suggestive. State v. Merrill (1984), 22 Ohio App. 3d 119. The appellant has the burden to show the court that the identification procedures were unnecessarily suggestive. State v. Sims (1984), 13 Ohio App. 3d 287. Suggestive identification procedures do not preclude admission where the identification itself is determined to be reliable. State v. Moody (1978), 55 Ohio St. 2d 64, 67. In this case, appellant fails to specify any impermissibly suggestive procedures, and the record does not reflect any. The record reflects that Frye looked through hundreds of photographs without finding her attacker in the first weeks after the crime. Sergeant Wilson thought appellant resembled Frye's composite of her attacker, and showed her a photo array of five men, including appellant. The photos all depicted young black men who were similar in appearance to appellant. Frye asked if appellant had a certain discolored area on his wrist, and the police confirmed by a photograph of appellant's wrists that he had such discoloration. The police also showed Frye a line-up, which included appellant and other men of similar size and appearance. The men talked amongst themselves so that Frye could hear their voices. -6- Compare to State v. Miles (1988), 55 Ohio App. 3d 210 (identification procedures overly suggestive where victim viewed suspects and no one else). The record also reflects that Frye's identification was reliable. Frye viewed her attacker from close range for about fifteen minutes. She stated that she intentionally tried to memorize details. Her description was so accurate that Sergeant Wilson called Frye when appellant was detained on another matter because Wilson thought appellant resembled Fryes' composite of her attacker. Frye was certain about her identification and only three weeks had passed since the event. Pamela Moldstad's identification was also reliable. She testified that she had different views of appellant, several from very close range in well-lit surroundings. She gave police a detailed description of appellant. Police saw appellant within minutes of Moldstad's call within two blocks of her apartment building. They brought Moldstad to the scene, and she identified appellant as the man she had seen. Appellant also claims that the court erred by failing to state its findings on the record when it denied the motion to suppress. The record reflects that appellant did not request such findings. In State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus, death penalty vacated (1978), 438 U.S. 911, the Ohio Supreme Court stated as follows: An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial -7- court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph one of the syllabus of State v. Glaros, 170 Ohio St. 471, approved and followed.) See also State v. Holden (1985), 23 Ohio App. 3d 5 (court's failure to state its findings on the record when it denied the defendant's motion to suppress was not in error where counsel failed to request findings and the record supported the court's decision). Since appellant did not object at the time and since we have determined from the record that the court properly denied the motion, appellant's first assignment of error is overruled. II. Appellant's second assignment of error reads as follows: THE COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL MADE AT THE CLOSE OF ALL THE EVIDENCE. In State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus, the Ohio Supreme Court held as follows: 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. Furthermore, the credibility of witnesses is primarily for the trier of facts to determine. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Appellant was charged with kidnapping in violation of R.C. 2905.01. R.C. 2905.01(A) provides in part as follows: (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen -8- 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: * * * (2) To facilitate the commission of any felony or flight thereafter; * * * (4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will; * * * "Sexual activity" includes touching of a female's breasts. R.C. 2907.01(B) and (C). Reasonable minds could conclude that appellant kidnapped Alfreda Frye. She testified that he restrained her in her car with threats of violence and a knife at her neck. She also testified that he stole her necklace and squeezed her breasts. Reasonable minds could also conclude that appellant committed aggravated robbery. R.C. 2911.01 provides in part as follows: (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 do either of the following: (1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; * * * Sexual contact includes touching female breasts. R.C. 2907.01. Alfreda Frye testified that appellant forcibly restrained her and squeezed her breasts against her will. This evidence was -9- sufficient for the court to overrule appellants Crim. R. 29 motion on the charge of gross sexual imposition. Appellant was also charged with possession of criminal tools (brass knuckles) in violation of R.C. 2923.24. That section provides in part as follows: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. * * * When appellant was arrested, he had brass knuckles in his pocket. Appellant testified at his trial that he took the brass knuckles with him because he wanted to seriously hurt somebody. Since appellant admitted he intended to use the brass knuckles criminally, the trial court properly denied appellant's motion as to the criminal tools charge. Appellant's second assignment of error is overruled. 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. PATTON, J., and KRUPANSKY, J., CONCUR. 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. .