COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60254 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : SHAWN RODGERS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-251762. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Russell Z. Baron, Esq. Ticktin, Baron, Loepper 1700 The Keith Building Cleveland, OH 44115 -2- MATIA, C.J.: This appeal arises out of a verdict from the Cuyahoga County Court of Common Pleas finding appellant guilty of one count of rape and not guilty of various other sexual conduct counts. Appellant assigns for error this verdict arguing that it is inconsistent with his acquittal on the other counts of the indictment. On review, we find no error and affirm the verdict of the trial court. STATEMENT OF THE FACTS The victim within testified that appellant abducted her at knife point as she was walking home at approximately 9:30 p.m., forced her into a car, drove to a secluded spot, and then forced her to perform oral, anal, and vaginal sex with him, as well as inserting a screwdriver into her vagina. Defendant-appellant, Shawn Rodgers gave contradictory testimony, his defense being that the victim gave consent, was a prostitute and performed one act of anal intercourse and inserted the screwdriver into her vagina in exchange for money for crack cocaine. Rosalind Michelle Moore, the victim herein, testified that on the night of March 29, 1990, at approximately 9:30 p.m., she was walking from a friend's house. As she approached an intersection, she noticed a parked car with an individual in it. Miss Moore testified that appellant Shawn Rodgers, got out of the car, came up behind her, stuck a knife to her throat and threatened to kill her if she screamed. He then made her get into the car. He drove around for approximately ten (10) minutes and then parked the car in an isolated spot on a street named Urbana in Cleveland, Ohio. The appellant then undressed himself, undressed Miss Moore and made her first perform -3- fellatio. He then pulled a screwdriver out of the glove box and inserted the screwdriver into Miss Moore's vagina. He then made her lick the screwdriver and after that, made her perform fellatio again. The appellant then performed anal intercourse, vaginal intercourse and then anal intercourse again with Miss Moore. Appellant then permitted Miss Moore to get dressed. He drove down the street and then kicked her out of his car. Miss Moore was taken to the hospital by two men coming out of a bar. Miss Moore noticed and remembered part of a 30 day temporary license tag on the car. She also told police what clothes the appellant was wearing and that he wore a wristwatch with a gold facing and a gold necklace around his neck. Patrolman Gary Washington of the East Cleveland Police Department testified that he was assigned to investigate the incident. The day after taking testimony from Miss Moore at the hospital, he observed appellant's car with the license numbers recalled by Miss Moore. A search of appellant's car produced a knife and a screwdriver that was found in the glove compartment. Appellant's jewelry and clothing, which matched Miss Moore's description, were confiscated. Dr. Richard Fryers, physician at Meridia Huron Hospital, testified that he examined Miss Moore and prepared the rape kit submitted into evidence. He observed a tenderness and redness around the anal area of Miss Moore. The rape kit examined by James Wurster, criminalist of the Ohio Bureau of Criminal Identification and Investigation, evidenced spermatozoa on it. -4- Appellant Rodgers testified on his own behalf. He stated that Miss Moore approached him for a ride. He testified that she wanted him to buy crack cocaine for her and offered to have anal sex with him for Twenty Dollars ($20.00). He further testified that he took her to get the crack at Hot Sauce William's. After having anal sex with Miss Moore, appellant testified that Miss Moore wanted more crack because the first crack was not real. He gave her Ten Dollars ($10.00) more and asked her to masturbate with the screwdriver. He alleged that he dropped her off about a block from where he picked her up. William Demmings, a friend of appellant Rodgers, testified that he saw appellant and Miss Moore at Hot Sauce William's Restaurant. Daniel Riggins and Vern Miller testified as character witnesses for appellant Rodgers. STATEMENT OF THE CASE On May 16, 1990, defendant-appellant Shawn Rodgers was indicted by the Cuyahoga County Grand Jury for criminal activities alleged to have occurred on the night of March 29, 1990. Appellant Rodgers was charged with five (5) counts of rape (R.C. 2907.02); one (1) count of felonious sexual penetration (R.C. 2907.12); one (1) count of kidnapping (R.C. 2905.01); and one (1) count of gross sexual imposition (R.C. 2907.05). On May 22, 1990, appellant was arraigned. On July 9, 1990, a jury trial commenced and on July 13, 1990, the jury found appellant guilty of rape as charged in the first count of the indictment. He was acquitted of the remaining six -5- counts as charged in the indictment. The count for gross sexual imposition was dismissed by the court after the state's case-in- chief. On July 13th appellant was sentenced to a term of ten (10) to twenty-five (25) years at the Lorain Correctional Reception Center. It is from this conviction appellant now timely appeals. ASSIGNMENTS OF ERROR I AND II Assignments of Error I and II contain common questions of law and fact and will be determined concurrently. I. THE VERDICT OF GUILTY OF ONE COUNT OF RAPE IS INCONSISTENT WITH THE SIX VERDICTS OF NOT GUILTY. II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the verdict is against the manifest weight of the evidence. Specifically, appellant argues that his acquittal on four counts of rape, one count of kidnapping, and one count of felonious sexual penetration is inconsistent with the verdict of guilty of one count of rape. These two assignments of error are not well taken. ISSUE: WHETHER THE JURY COULD FIND EVIDENCE OF ONE COUNT OF RAPE AND RETURN A NOT GUILTY VERDICT ON THE OTHER COUNTS PERTAINING TO THE CHARGE Appellant argues that his conviction for rape is not supported by the evidence pursuant to the jury's not guilty verdict on the other four (4) charges of rape; one (1) count of felonious sexual penetration; and one (1) count of kidnapping. Appellant argues in his two (2) assignments of error that the verdict is against the manifest weight of the evidence because the conviction on one -6- count of rape is inconsistent with the six not guilty verdicts. Appellant's argument is unpersuasive. A review of the record indicates that there was competent credible evidence before the jury to convince a reasonable juror of appellant's guilt of only one count of rape beyond a reasonable doubt. The record reveals the contradictory testimony of the two eyewitnesses to the incident. Appellant Rodgers gave one account of what happened that night and the victim, Miss Moore gave a totally different but credible account of the night's occurrences. Further, the victim's testimony was corroborated by the testimony of a Cleveland Police Officer and a medical doctor, both of whom attended to the victim on the night of the alleged rape. Appellant's only corroborative testimony came from a friend who testified that he saw the victim and the appellant together that night at Hot Sauce William's Restaurant. The court in State v. Mattison (1985), 23 Ohio App. 3d 10, held: In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) [t]he 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; -7- (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. The court in Mattison counseled that these eight factors were "merely guidelines to be taken into account when weighing evidence. They are not hard and fast rules which must be followed." Mattison, supra, at 14. 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 offenses beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. The weight of the evidence and credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. The test to be applied in deciding whether a conviction is against the manifest weight of the evidience 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 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. *** (Citations omitted.) State v. Martin (1983), 20 Ohio App. 3d 172, 175. -8- In the case within, reviewing the entire record, weighing the evidence and all reasonable inferences, considering the credibility of appellant Rodgers' testimony and the victim's testimony, and in resolving conflicts in the evidence, we do not see that the jury clearly lost its way and thereby created a manifest miscarriage of justice. We find that the victim's testimony was credible, reliable and uncontroverted. The police officer, following up on the victim's description of the license plate number, found appellant's car with the screwdriver and knife in the glove compartment. Appellant was arrested wearing the jewelry the victim had observed the night of the incident. Further, the evidence reveals that appellant's testimony could have been perceived to be self-serving, uncertain and conflicting. Appellant's testimony that the victim was a strawberry and solicited sex from him in exchange for money to buy drugs conflicts with the victim voluntarily going to the hospital and reporting the incident to the police. As we said above, the reviewing court is not required to accept as true the incredible. Mattison, supra. We again submit that the victim gave consistent, straightforward testimony which if believed would give the trier of fact substantial evidence from which to conclude that the state proved the offense of one count of rape beyond a reasonable doubt. The weight of the evidence and credibility of witnesses are primarily for the trier of fact. State v. DeHass, supra. Our court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offenses -9- beyond a reasonable doubt. State v. Eley, supra. Accordingly, Assignments of Error I and II are overruled. The trial court is affirmed. The trial court is affirmed. 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. and HARPER, J., CONCUR. DAVID T. MATIA CHIEF 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. .