COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60532 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION SHAHER S. ALHMOUZ : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 23, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-248408 JUDGMENT: Affirmed in Part, Reversed in Part, and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. THOMAS PARIS, ESQ. Cuyahoga County Prosecutor Paris & Paris DONALD ROLLA, ESQ. 1575 Illuminating Bldg. Assistant Prosecuting Attorney 55 Public Square The Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: I. Appellant, Shaher Alhmouz, was indicted by the Cuyahoga County Grand Jury on a four-count indictment, to wit: rape, felonious sexual penetration, gross sexual imposition and kidnapping, respectively. Appellant was not found guilty on the rape charge but was found guilty on the other three counts. Appellant was sentenced by the court to five to twenty-five years in jail on count two, one year on count three, and three to fifteen years on count four. Appellant's sentences were to run concurrently. He appeals as of right and for the following reasons, we affirm in part and reverse in part. II. Christine Zapotosky testified that she and two of her girl friends went to the Glass Parrot Lounge in Wickliffe, Ohio, on December 28, 1989. While at the bar, she saw Shaher Alhmouz, whom she had known for some time. She talked with him while at the bar and later left with him to Denny's Restaurant. When they arrived at Denny's, it was too crowded and they decided to go to Mr. Alhmouz's apartment. She expected to see his wife, Linda, at his apartment on their arrival. When they got to Mr. Alhmouz's apartment, she inquired of his wife and was told that she went to visit her parents in Akron, Ohio. She sat down while Mr. Alhmouz went to the kitchen and returned with a bottle of beer for himself and a glass of - 3 - wine for her. They sat on a love seat in the living room and were engaged in a conversation. He turned on his television and started showing a pornographic movie on his video cassette recorder. She felt uncomfortable with the movie and turned towards him instead of watching the movie. Mr. Alhmouz pulled her towards him and placed his hand on her left breast. She pulled away from him and said, "No." She wanted to leave, but was persuaded to stay. He later pulled her into the bedroom. He wanted to show her some family pictures. While looking at the pictures, he picked her up from behind and forced her over to the bed. He began running his hands all over her "bottom half". He tore her pantyhose off and pulled down her panties. He got on top of her and put his hands up her vagina. She screamed and struggled with him. They rolled off the bed and onto the floor where he pinned her down and placed his penis in her vagina. He pulled his penis out and ejaculated on her panties. She then got up and ran out of the apartment and drove home. She washed herself below the waist when she got home, threw the pantyhose and her panties in the garbage and went to sleep. She called her girl friend after she woke up, and went over to see her. She called the Rape Crises Center from her girl friend's house. She later went to the Euclid Police Department with her girl friend and filed a complaint. She was examined at Meridia Euclid Hospital. - 4 - Detective David Bensi of the Euclid Police Department testified that he was assigned to the case after Ms. Zapotosky filed a complaint. He drove her to Meridia Hospital where several tests were performed. He visited the apartment where the incident took place to interview other tenants to determine if they heard any screams. No one heard anything. He read Mr. Alhmouz his rights. He made a statement to the police. He admitted putting his hand on her vagina, but did not penetrate her. When he became aroused and unzipped his pants, she got up and left. He did nothing more to her. A test performed on Ms. Zapotosky's clothing revealed no semen, but carpet fibers were found on the back of her clothes which matched fibers taken from the bedroom of Mr. Alhmouz's apartment. Shaher Alhmouz testified that after they got to his apartment, she sat down on the love seat. He denied she was forced to do anything against her will. He testified that they had engaged in some petting while in the living room. They subsequently went into the bedroom without any objection from her. They both laid down on his bed after she was through looking at the pictures. While on the bed, they continued their sexual petting. When they got too passionate, Ms. Zapotosky indicated that she did not wish to engage in any sexual intercourse or further sexual activity. He immediately stopped the sexual - 5 - petting and the foreplay. He did not restrain her and did not have sexual intercourse or ejaculate on her panties. III. Appellant's three assignments of error are as follows: "1. The convictions in the trial court should be reversed because they are against the manifest weight of the evidence and because the evidence supporting them was insufficient as a matter of law to prove the convictions beyond a reasonable doubt. "2. The Court committed error prejudicial to Appellant in refusing to allow the testimony of witness Jamal, which testimony was relevant to Appellant's defense, and which testimony was proffered on the record. "3. The Appellant was prejudiced by the failure of the prosecutor to turn over to Appellant photographs of the complaining witness taken immediately following the alleged rape." Appellant, in his first assignment of error, argues that the jury verdict was against the manifest weight of the evidence. Appellant argues that the victim's statement was in contrast with his and that the jury should not have believed the victim. Appellant further argues that conviction cannot lie because the victim consented to everything that took place at his apartment. Appellant contends that the state should have produced a corroborating eye witness to the incident in order to prove its case beyond a reasonable doubt. Appellant's argument has no merit. The weight of the evidence arguments are part of the fundamental due process of law required by the Fourteenth Amendment of the United States Constitution. As the United States Supreme Court held in Tibbs v. Florida (1982), 457 U.S. - 6 - 31, a conviction that is against the weight of the evidence must be reversed and remanded for a new trial. The Ohio Constitution authorizes this court in Section 3(B)(3) to independently weigh the evidence when such error is assigned. State v. Robinson (1955), 162 Ohio St. 486. In State, ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, the Ohio Supreme Court held that the court of appeals: "has the authority and the duty to weigh the evidence and to determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial." We are not aware of the existence of any law that requires a rape victim's testimony be corroborated before an accused can be convicted of rape. See State v. Gingell (1982), 7 Ohio App. 3d 364. See also State v. Love (1988), 49 Ohio App. 3d 88. Rape is always a violent act committed against the victim in private and is not conducted for the benefit of the public or a third party observation which makes corroboration almost an impossible task. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. A reviewing court will make every reasonable presumption in favor of the trial court's judgments. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77. Furthermore, the weight to be given the evidence and witness credibility are primarily for the fact finder. Shore Shirley & - 7 - Co. v. Kelly (1988), 40 Ohio App. 3d 10. See also Ross v. Ross (1980), 64 Ohio St. 2d 203, 204. In the within case, appellant testified that he was very passionate with the victim. The victim testified that she did not consent. Appellant states in his brief: "The conduct of Shaher S. Alhmouz toward Complainant as revealed by his testimony and by the testimony of Complainant would admittedly constitute gross sexual imposition were such conduct not consented to by the Complainant." From appellant's own testimony, the issue of who the jury should believe or disbelieve is not a proper issue for appellate review. Generally, the credibility of witnesses and the weight of the evidence are matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Accordingly, a trial court shall not, pursuant to Crim. R. 29(A), 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 (1978), 55 Ohio St. 2d 261, syllabus. Similarly, a reviewing court shall not reverse a criminal conviction supported by competent, credible evidence. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. We cannot hold that the jury clearly lost its way and created such a manifest miscarriage of justice that appellant's conviction on gross sexual imposition and felonious sexual penetration must be reversed. State v. Martin (1983), 21 Ohio App. 3d 172, paragraph three of the syllabus. Accordingly, - 8 - appellant's first assignment of error pursuant to those two issues is overruled. Appellant further argues that the evidence was insufficient to convict him of kidnapping pursuant to R.C. 2905.01. We agree. R.C. 2905.01 states in pertinent part as follows: "(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen 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: "(1) To hold for ransom, or as a shield or hos- tage; "(2) To facilitate the commission of any felony or flight thereafter; "(3) To terrorize, or to inflict serious physical harm on the victim or another; "(4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will; "****" The record shows that the victim left the bar and went to Denny's Restaurant voluntarily with the appellant. The victim testified that she did not object to going to appellant's apartment. The following colloquy took place between the victim and appellant's counsel: "Q. Were you putting up any type of resistance? "A. Yes, I resisted, and I hesitated. "Q. I mean, did he drag you, did he have to drag you, kick you, or did you just go? "A. He was very firm with me. "Q. Why did you go in at that point? - 9 - "A. After hesitating, not wanting to go in, he told me he had pictures that were on the wall. I agreed to go in and look at them. (emphasis added) He wasn't mean to me when he pulled me in. He was just firm and he wanted to show me the pictures. Family meant a lot to him. "Q. Okay. That was his attitude throughout this. Was he then -- you say he was firm, but you said he was not "A. No, he was not mean." The crime of kidnapping is not and should not be an automatic addendum to the crime of rape or related charges. The state must prove all elements of kidnapping beyond a reasonable doubt in order to get a conviction. When kidnapping is proved beyond a reasonable doubt, a further inquiry is made to determine if they are allied offenses of similar import within the meaning of R.C. 2941.25(A). When kidnapping is determined to be an allied offense of similar import, to rape or related charges because it is incidental to the rape or related charges and not committed separately nor with a separate animus as to each within the meaning of R.C. 2941.25(B), there cannot be a multiple punishment. State v. Pike (1979), 60 Ohio St. 2d 136; State v. Rogers (1985), 17 Ohio St. 3d 174; see also State v. Donald (1979), 57 Ohio St. 2d 73; State v. Logan (1979), 60 Ohio St. 2d 126. Where kidnapping is not merely incidental to rape or related charges and the victim was subjected to prolonged restraint, the act of kidnapping is not an allied offense and the defendant may be convicted of both kidnapping and rape or related charges. State v. Brown (1984), 12 Ohio St. 3d 147; State v. Mitchell - 10 - (1989), 60 Ohio app. 3d 106. From the specific facts of this case, the state did not prove the elements of kidnapping beyond a reasonable doubt, therefore, the evidence present was insufficient to support appellant's conviction for kidnapping. Accordingly, appellant's conviction for kidnapping is reversed. IV. Appellant, in his second assignment of error, argues that the trial court erred by denying his request to allow testimony of a witness. Appellant argues that the witness would testify that the victim had watched pornographic movies with appellant in the past. Appellant's counsel in his motion to the court stated as follows: "MR. PARIS: I wish to call a witness by the name of Jamal who is the ex-boyfriend of the complainant in this action. The testimony that he would give is to the effect that he and the victim in this case as well as my client and another gentleman have on [sic] the past on numerous occasions viewed pornographic movies together." Appellant's argument has no merit as appellant has failed to show how Mr. Jamal's testimony will help his case. The victim did not deny that she has watched pornographic movies in the past. She testified that she was surprised that appellant turned on a pornographic movie when they arrived at his apartment and did not want to watch it. There is no evidence that appellant forewarned the victim that he was going to show a pornographic movie on their arrival at his apartment. A trial court has broad discretion in the admission and exclusion of evidence and a reviewing court shall not reverse a - 11 - trial court's judgment for failure to admit or exclude evidence unless the trial court has clearly abused its discretion and the complaining party has suffered material prejudice. Columbus v. Taylor (1988), 39 Ohio St. 3d 162, 164. Accordingly, we would not reverse the trial court's judgment unless the trial court acted unreasonably, arbitrarily, or unconscionably. Id., at 165. "Abuse of discretion implies an unreasonable, arbitrary or unconscionable attitude on the part of the court. Such concept of abuse applies to a court's determination of a motion to change a plea." State v. Longo (1982), 4 Ohio App. 3d 136. Appellant's second assignment of error is overruled. V. Appellant, in his third assignment of error, argues that his case was prejudiced by the prosecutor's failure to turn over the photographs taken of the victim after her allegation of rape was made. Appellant argues in his brief as follows: "There is no question that if the photographs indicated that Appellant beat, struck, scratched, or otherwise abused Complainant, the photographs would have been offered into evidence. The failure of the prosecutor to present this evidence or to make it available to Appellant's counsel leads one to conclude that these photographs would have been beneficial to Appellant. They would have indicated that Complainant had suffered no injury and that she had lied to the jury." Appellant seems to misunderstand the law of rape. Physical injury is not a condition subsequent to the conviction of rape or related charges. Appellant has failed to show how the photographs taken of the victim after the alleged rape occurred - 12 - would be exculpatory in nature. Indulgence in conjecture is beyond the realm of appellate review. Appellant's third assignment of error is overruled. The trial court's judgment is affirmed in part and reversed in part. This cause is remanded to the Common Pleas Court to vacate appellant's conviction and sentence on the kidnapping charge. - 13 - It is ordered that appellee and appellant share the costs equally. 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 in part, any bail pending appeal is terminated. Case remanded to the trial court for execution of amended sentence. 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 NAHRA, 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. .