COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60334 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOHN L. MOORE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 14, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 245912 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ. CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY PUBLIC DEFENDER BY: THOMAS CONWAY, ESQ. BY: DONALD GREEN, ESQ. ASSISTANT COUNTY PROSECUTOR ASST. PUBLIC DEFENDER The Justice Center The Marion Building, Rm. 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44413 Cleveland, Ohio 44113-1569 - 1 - DYKE, J.: Appellant, John L. Moore, was convicted of gross sexual imposition, R.C. 2907.05, and Kidnapping, R.C. 2905.01, and sentenced to concurrent terms of eighteen months and eight to 1 fifteen years. On appeal appellant assigns two errors for review. I JOHN L. MOORE WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION [FOR GROSS SEXUAL IMPOSITION] WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant was charged with having had sexual contact with the victim by compelling her to submit by force or threat of force. Appellant correctly notes that the state had to prove that he touched the victims "breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). Appellant contends that Officer Prohomic "provided testimony that proved that [appellant] was innocent ...." (Appellant's brief at 10.) Appellant insists that the victim testified that appellant felt her breast right before he kissed her and yet Prohomic, who witnessed all but about seven seconds of the encounter between appellant and the victim, testified that he did not see appellant touch the victim's breast. The victim testified that right after appellant put his hand in her blouse and touched her breast he kissed her. (Tr. 17, 1 Each count has a violence specification to which appellant stipulated. Appellant also waived a jury trial. - 2 - line 4.) Prohomic testified that he saw appellant approach the victim, put his arm around her neck and walk out of sight for twenty or thirty feet (or seven seconds). (Tr. 37.) Prohomic testified that after they came back he watched them (Tr. 50) and did not see appellant put his hand in her blouse although he did say he saw him kiss her and was watching before appellant kissed her. (Tr. 41-52.) In determining whether the verdict is against the manifest weight of the evidence 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. State v. Davis (1988), 49 Ohio App. 3d 109 (syllabus 3). Inconsistency in a witness's testimony does not mandate a reversal of a conviction. These inconsistencies are to be resolved by the jury. We cannot say that the inconsistencies are such that the verdicts were a miscarriage of justice. "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all of the elements of an offense have been proved beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169. The victim testified that the kiss was right after the touching. (Tr. 17.) Prohomic was asked if he could see them - 3 - after they came back into view and he replied, "Yes, sir, from the time they came out from behind the substation until the time I stopped the, whatever distance that was." When asked if he saw appellant stick his hand inside her blouse he replied, "No." He testified that he saw the kiss and was watching before the kiss. (Tr. 51.) Nevertheless, it is still possible that appellant or the victim blocked Prohomic's view of appellant's hand for the crucial few seconds that it would take for appellant's hand to enter her blouse. Prohomic testified that appellant's left hand was around the victim's neck and they were struggling. He did not testify that appellant did not touch her. He only testified that he did not see it. We cannot say that there was a manifest miscarriage of justice when the victim testified consistently that the touching did occur. Assignment of error No. I is overruled. II JOHN L. MOORE HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION FOR KIDNAPPING WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. Appellant was charged with having, "by force, threat or deception removed [the victim] from the place where she was found or restrained her of her liberty for the purpose of facilitating - 4 - the commission of a felony or the flight thereafter and/or 2 engaging in sexual activity with the victim against her will." The victim testified as follows: she was walking on Buckeye Road when appellant grabbed her, stuck a gun in her side and told her not to run or scream. (Tr. 14.) Appellant asked her if she gets high and, when she said no, told her she was going to that night, (Tr. 18) and showed her some "dope." (Tr. 25). Appellant put his hand in her blouse, touched her breast, and kissed her before a Regional Transit Authority police car was seen and he let her go. (Tr. 15-17.) She ran over to the police officer and told him appellant had a gun and dope. (Tr. 18.) Prohomic testified as follows: he saw appellant walk east, put his arm around the victim's neck and walk west. (Tr. 35.) They briefly disappeared from view but when they reappeared the victim struggled and Prohomic saw a weapon in appellant's right rear pocket. (Tr. 37-38.) Appellant kissed her before the victim ran to the police car and told him that appellant tried to kidnap her and she didn't know him. (Tr. 42 and 51.) Appellant told Prohomic that the victim was his woman but then was unable to tell Prohomic her name. (Tr. 42.) Appellant testified as follows: after he found a bag with a small packet in it the victim came up, asked him if it was any good and said she had a "straight shooter" to help them find out 2 The trial court found that the state failed to prove that appellant had not released her in a safe place unharmed. - 5 - if it was any good. (Tr. 72.) He told her she could buy some and after he refused her Walkman in trade they walked together, with their arms around each other, to her uncle's to get money. (Tr. 72 and 75.) When she told him the police were coming he put the bag in his hat and she voluntarily kissed him to put off the police. (Tr. 73, 75 and 82.) He denied that she struggled or ran and insisted that the officer's testimony was inaccurate. (Tr. 82-83.) Although the victim provided Prohomic with a different name than her maiden or married names her account was corroborated in large part by Prohomic. Appellant's version was contradicted by Prohomic, who was told by appellant that the victim was his woman, although he couldn't even give him her name. The testimony of the victim and Prohomic was sufficient to justify the denial of a motion for acquittal. "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." State v. Bridgeman (1987), 55 Ohio St. 2d 261. Appellant contends that because appellant was charged with forcible removal or restraint to facilitate the commission of any felony or flight thereafter or to engage in sexual activity with the victim against her will there must be evidence of either the commission of a felony or flight thereafter or a conviction for - 6 - gross sexual imposition. Neither the state nor the indictment required the actual commission of either a felony or forcible sexual activity. The statue states as follows: No person, by force, threat, or deception ... 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. (Emphasis added.) If a person, by force, threat, or deception removes another from the place where he is found or restrains him of his liberty for the purpose of either facilitating the commission of any felony or flight thereafter or engaging in sexual activity against his will, that defendant has committed kidnapping, even if the felony which the removal or restraint was intended to facilitate, was never consummated or the sexual activity was never accomplished. The statute punishes certain removal or restraint done with a certain purpose and the eventual success or failure of the goal is irrelevant. In an analogous situation the Ohio Supreme Court held that because aggravated burglary, R.C. 2911.11, prohibits trespassing by force, stealth or deception in an occupied structure or - 7 - separately secured or separately occupied portion thereof with purpose to commit a theft offense or felony (when certain special circumstances apply to make the burglary aggravated) an accused is guilty of aggravated burglary even if no theft offense or felony is actually committed. State v. Frazier (1979), 58 Ohio St. 2d 253, 256. "When the defendant forced the victim's door open with intent to assault [the victim] ... the burglary was completed. Whether an intended felony was committed is irrelevant to the burglary charge." Id. citing Boyer v. Maxwell (1963), 175 Ohio St. 318 which reached the same conclusion with regard to breaking and entering, R.C. 2911.13 (trespass by force, stealth, or deception in an unoccupied structure with purpose to commit a theft offense or felony). "The offense of breaking and entering is accomplished at the time of entry, and the accused is guilty thereof whether he commits the intended felony or not. The actual commission of the intended felony is not an element of the offense of breaking and entering." Id. at 319. Kidnapping is accomplished when the victim is restrained or removed by force, threat, or deception (or in the case of a victim under the age of thirteen or mentally incompetent, by any means), for one of the purposes delineated in R.C. 2905.01(A)(1)-(5) regardless of whether the intended offense is actually committed. The testimony of the victim provided evidence upon which reasonable minds could reach different conclusions as to whether appellant forcibly removed or restrained the victim for the - 8 - purpose of facilitating the commission of sexual activity against her will. Assignment of error No. I is overruled. Judgment 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. J.F. CORRIGAN, J., AND ANN MCMANAMON, J., CONCUR. PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .