COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60292 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION STANLEY M. ARROWOOD : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-247921 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender A. STEVEN DEVER, ESQ. BY: DONALD GREEN, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center The Marion Bldg., Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - HARPER, J.: I. Appellant, Stanley Arrowood, was indicted by the Cuyahoga County Grand Jury on three counts of Rape, in violation of R.C. 2907.02 on January 11, 1990. One count was amended by the court to Attempted Rape. Appellant was found guilty of one count of rape and one count of attempted rape. He was sentenced by the court to a minimum term of six years and a maximum term of twenty-five years in jail on the rape convictions, and three to fifteen years on the attempted rape conviction. The sentences were to run concurrently. Appellant appeals as of right and for the reasons that follow, we affirm. II. Kim Foley testified that she is a dancer in a night club called Attitudes. She is married and has four children. She had been a dancer at Attitudes for three years. While dancing on November 18, 1989, a man by the name of Gary Key came into the bar. She has known Gary for a long time and often buys cocaine from him. On the night in question, Kim consumed about four or five beers. Gary came into the club with another individual who was introduced to Kim as Mike. Mike was later identified by Kim as the defendant, Stanley Michael Arrowood. Kim testified that after she finished dancing at about 2:30 a.m. on November 19, 1989, she left to go and purchase cocaine with Gary, Stanley and another dancer named Carol. They - 3 - purchased the cocaine and after consuming some of it proceeded to Gary's house. When they arrived at Gary's house, they snorted and smoked more cocaine and drank beer. They stayed at Gary's house for about two hours. Carol and Gary remained at Gary's house while Stanley and Kim left. Stanley was supposed to give Kim a ride home. Stanley drove her to a bank parking lot on West 25th Street in Cleveland, Ohio. Stanley told her to take off her clothes. She refused. He struck her and pulled her into the back seat where he forced her to undress and have intercourse with him. He drove her home after the act. She told her sister who was baby-sitting her children what had happened. She was convinced by her sister to tell her husband. She told her husband, who drove to Gary's home looking for Stanley. They later drove to the Second District Police Station and then to Deaconess Hospital. Dr. John Somple testified that he examined Kim at Deaconess Hospital. She was very distraught and smelled of alcohol. There was swelling by her right eye. He prepared a rape kit based on the sperm he found from the cultures taken from her vagina. The kit was sent to the Cleveland Police Department. A rape kit consists of secretions, cultures and specimens from under the fingernails and hair follicles from the pubic area. Betty White testified that she is Kim's sister. While baby- sitting Kim's children, she (Kim) came home in the early morning - 4 - of November 19, 1989 crying and had bruises on her cheek. Kim told her that she was raped after initially refusing to tell her what had happened. Timothy McGinty of the Cleveland Police Department testified that he responded to the call from the Deaconess Hospital. He interviewed Kim who told her that she was raped by a man named Mike Shook or Arrowood. He also interviewed Gary. He received a rape kit from the hospital and turned it over to the Second District Police Station for scientific analysis. Stephen Stacho of the Cleveland Police Department Sex Crime Child Abuse Unit investigated the complaint. He interviewed Kim and collected the clothing she wore on the morning in question. He interviewed Gary and was unable to locate Carol. Gary Key testified that Stanley is his cousin. They were bar hopping beginning 6:00 p.m. on November 18, 1989 drinking and playing pool. They arrived at Attitudes at about 11:00 p.m. At about midnight, Gary, Stanley, Carol and Kim left Attitudes. They visited other bars and purchased cocaine. Gary stated that on their way to his house, Kim and Stanley were in the back seat of the car and "they were affectionate". They continued to drink and use cocaine when they arrived at his house. "I was snorting it and she was smoking it and Kim was shooting it" said Gary. Kim and Stanley left about two hours later. Kim and Stanley returned to his house later that morning wanting to continue the party and he refused. - 5 - Joseph Serowick of the Cleveland Police Department Forensic Science Laboratory testified. He examined the rape kit and it revealed that the vaginal swabs were positive for semen, but the anal and genital swabs were negative. There were human blood stains on the sweater but no presence of seminal fluid was found. Stanley Arrowood testified that he is currently serving time for two drug conviction charges. He went out with Gary on the night of November 18, 1989. They ended up at the Attitudes Bar about 2:00 a.m. They met Carol and Kim at the bar. He agreed to give Carol and Kim a ride home. They purchased cocaine and proceeded to Gary's house where Kim injected herself with some of the cocaine. He agreed to give her a ride home from Gary's house. On their way to her house, she wanted Stanley to take her back to where they purchased the cocaine, which he did. When she got back to the car, she went to another place for about one-half hour. When she returned she looked as if she had been crying. They returned to Gary's Place. Kim went inside while he (Stanley) talked with Gary for a minute. He took her home. He denied ever taking Kim to a parking lot or raping her. III. Appellant's sole assignment of error is as follows: "STANLEY ARROWOOD WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." - 6 - Appellant argues that since the victim, Kim Foley, drank some beer and injected cocaine on the night in question, that the jury should not believe that she was raped. Appellant also argues that the jury verdict is against the manifest weight of the evidence because Gary Key's testimony was inconsistent with the victim's testimony, even though Gary Key testified that he did not know what happened between the two after they left his house. While this court, under Article IV, Section 3(B)(3) of the Ohio constitution, is authorized to assess the weight of the evidence independently of the fact finder, see State v. Robinson (1955), 162 Ohio St. 486; State, ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, we cannot assess the credibility of witnesses. Such is the paramount function of the trier of fact and we decline to accept appellant's invitation to invade this fundamental function of the fact finder. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77. Judgment supported by some competent, credible evidence shall not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, syllabus. See also, Shore Shirley and Co. v. Kelly (1988), 40 Ohio App. 3d 10; State v. Eley (1978), 56 Ohio St. 2d 169. The record is uncontroverted that appellant left Gary Key's house with the victim. There is evidence that swabs taken from the victim's vagina were positive for semen. The victim's eyes were swollen, and there was redness on her face when she was - 7 - examined on the morning in question. The victim positively identified appellant as the person who raped her both to the police and in court. We cannot hold as a matter of law that appellant's conviction was not supported by competent credible evidence. Appellant's sole assignment of error is overruled. - 8 - Judgment 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. NAHRA, P.J., and BLACKMON, J., CONCUR. SARA J. HARPER 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. .