COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60293 IN THE MATTER OF: MARIO : WATKINS, : : Defendant-Appellant : : JOURNAL ENTRY : and : OPINION : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Juvenile Court Division : Case No. 9001699 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: David Hildebrandt Assistant Prosecuting Attorney Juvenile Court Division 2163 East 22nd Street Cleveland, Ohio 44115 For defendant-appellant: Eugene S. Bayer 745 Leader Building Cleveland, Ohio 44114 -2- NAHRA, J.: This is an appeal of a judgment from the Juvenile Division of the Cuyahoga County Common Pleas Court. The evening of January 2, 1990, Tonya Logan was at a store in the area of East 93rd and Manner in Cleveland, Ohio. She was offered and accepted a ride home from four, young males. When they arrived at her house, one of the males requested to use the bathroom in her house to which she complied. However, the other three males entered the house, including Mario Watkins, defendant-appellant, when Logan and the other male were in the basement where the bathroom was located. Thereafter, all four males forced Ms. Logan to engage in nonconsensual sexual intercourse with them. Logan managed to get to her living room in an attempt to call the police. However, she discovered that the telephone was missing. She then dashed upstairs and instructed her daughter to run across the street and call the police. She further instructed her daughter to tell the police that "your mother is being raped". The police arrived at Logan's house shortly thereafter. Upon their arrival, the police observed one male jumping out of a window and another jumping off the back porch. Officer Tim Gaertan noticed Watkins and another male leaving the house and enter a parked car in the driveway in an attempt to leave. However, officer Gaertan stopped the vehicle and removed Watkins. Ms. Logan's telephone was discovered on the front seat. She identified Watkins as one of the males who had forced her into nonconsensual sexual intercourse. -3- Watkins testified that Logan invited all four males to her house and that she consented to the sexual conduct. He asserted that Logan offered them sex in exchange for a rock of cocaine which they secured for her and which she consumed. On February 1, 1990, a complaint was filed against Watkins, a juvenile, alleging that he committed rape in violation of R.C. 2907.02(B). On May 29, 1990, an adjudicatory hearing was held and Watkins was deemed delinquent. He was committed to the Ohio Department of Youth Services. On June 5, 1990, Watkins filed a motion for a new trial which was denied. This appeal follows. I. Appellant's first assignment of error states: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR NEW TRIAL, WHERE THE BURDEN OF PROOF AND PRESUMPTION OF INNOCENCE WERE NOT OVERCOME? Crim R. 33(A), which constitutes the grounds for the granting of a new trial, states in pertinent part: (A) Grounds. A new trial may be granted in motion of the defendant for any of the following causes affecting materially his substantial rights: * * * (4) That the verdict is not sustained by sufficient evidence or is contrary to law.... * * * A motion for a new trial is addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St. 3d -4- 71, 564 N.E.2d 54, paragraph one of the syllabus; State v. Williams (1975), 43 Ohio St. 2d 88, 330 N.E.2d 891, paragraph two of the syllabus; State v. Shepard (1983), 13 Ohio App. 3d 117, 468 N.E.2d 380, paragraph two of the syllabus. Watkins argues that the evidence was insufficient to convict him of rape. He asserts that Ms. Logan's testimony lacked credibility and that the state failed to prove the element of 1 force under R.C. 2907.02(A)(2). If there was sufficient evidence for the trier-of-fact to find the defendant guilty beyond a reasonable doubt, this court will not reverse a guilty verdict based on manifest weight of the evidence or that the evidence was insufficient. State v. Brown (1988), 38 Ohio St. 3d 305, 306, 528 N.E.2d 523, (Syl. 4), certiorari denied (1989), 109 S. Ct. 1177; see State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922. The weight to be given evidence and the credibility of witnesses are determinations to be made by the trier-of-fact. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. Here, Ms. Logan testified that one of the males struck her in the stomach with a knee and that she was hit on the head. Logan made clear in her testimony that she did not consent to the sexual acts perpetrated against her. Based on Ms. Logan's 1 R.C. 2907.02(A)(2) which constitutes the crime of rape as applied herein, states: No person shall engage in sexual conduct with another when the offender purposefully compels the other person to submit by force or threat of force. -5- testimony and review of the record, we believe there was sufficient evidence that Watkins forced Logan to have sexual intercourse against her will. We find no reason to upset the trier-of-fact's evaluation of the witnesses' credibility. As a result, the trial court did not abuse its discretion by denying the motion for a new trial. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION FOR CONTINUANCE TIMELY MADE TO ALLOW THE ATTORNEY OF RECORD, HIRED BY DEFENDANT, TO REPRESENT APPELLANT AT HIS TRIAL. On May 15, 1990, Watkins filed a motion for continuance which the trial court granted. As a result, trial was rescheduled for May 29, 1990 which would enable the attorney Watkins originally hired, Eugene Bayer, to be available. On May 29, 1990, Watkins again requested a continuance since Bayer had not returned from vacation. The trial court denied the motion for a continuance; Watkins was represented by another attorney named Patsourus. Watkins now contends that the trial court abused its discretion by denying his motion for a continuance. He embraces Juv. R. 23 which states: Continuances shall be granted only when imperative to secure fair treatment of the parties. -6- A motion for continuance is addressed to the sound judicial discretion of the trial court, and the court's denial of a continuance must not be disturbed upon review unless there has been a clear abuse of discretion. State v. Unger (1981), 67 Ohio St. 2d 65, 423 N.E.2d 1078, paragraph one of the syllabus. The term "abuse of discretion" connotes more than error of law or judgment; it implies that the court's attitude is "unreasonable, arbitrary, or unconscionable". State, ex rel. Cook, v. Zimpher (1985), 17 Ohio St. 3d 236, 240, 479 N.E.2d 264; State v. Maurer (1984), 15 Ohio St. 3d 239, 250, 473 N.E.2d 768. We do not believe that the trial court's order denying the motion for continuance was unreasonable, arbitrary, or unconscionable. Eugene Bayer never appeared on Watkins' behalf. Instead, attorney Patsourus appeared during all the pre-trials. Our review of the record does not reveal that Watkins was denied a fair trial by Patsourus' representation. In this way, Watkins was not prejudiced by the denial of the motion for continuance. As a result of the foregoing, we do not believe the trial court abused its discretion by so ruling. Appellant's assignment of error is overruled. III. Appellant's third assignment of error states: WHETHER THE TRIAL COURT ERRED BY NOT ALLOWING INTO EVIDENCE JUVENILE COURT RECORDS PROPERLY REQUESTED BY DEFENDANT TO IMPEACH HIS ACCUSER AS TO THE CREDIBILITY OF HER TESTIMONY AND CHARACTER, THUS DENYING APPELLANT'S RIGHT OF CONFRONTATION AND CROSS- -7- EXAMINATION UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION. Watkins contends that the trial court erred by not allowing him to impeach Ms. Logan with evidence in Juvenile Court files of a prior conviction and specific instances of poor conduct. Evid. R. 608(B), which concerns the evidence of character and conduct of a witness, states: (B) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness of another witness as to which character the witness being cross-examined has testified. * * * Here, the juvenile records were properly denied since they constitute extrinsic evidence and may not be used to demonstrate specific instances of conduct. State v. Levin (1984), 11 Ohio St. 3d 172, 464 N.E.2d 552. Moreover, the record reveals that Watkins' attempt to introduce such records was not made during Logan's cross-examination. For this latter reason alone, such records were not admissible. We do not believe that the trial court abused its discretion by excluding such documents from evidence. Evid. R. 608(B); State v. Williams (1981), 10 Ohio App. 3d 156, 440 N.E.2d 65. Watkins also maintains that Logan's juvenile records should have been admitted under Evid. R. 609. Evidence of prior -8- convictions may be admissible if the crime was punishable by death or imprisonment in excess of one year or involved dishonesty or a false statement. Evid. R. 609(A). However, Watkins did not proffer the juvenile records to establish that such documents fulfilled the criteria for admission. In the absence of such a proffer or any such documentation in the record on appeal, we presume that there was no proof of conviction. See State v. Summers (1981), 3 Ohio App. 3d, 234, 444 N.E.2d 1041. We believe the trial court's ruling was proper. Appellant's assignment of error is overruled. The judgment of the trial court is 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 -- Juvenile Court Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and FRANCIS E. SWEENEY, J., CONCUR. JOSEPH J. NAHRA 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. .