COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60602 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DOUGLAS YORK, JR., : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 256240 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES P. MADDEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 20800 Center Ridge Rd., #301 BY: TIMOTHY DOBECK, ESQ. Rocky River, Ohio 44116 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Douglas York, Jr., was indicted on seven counts of forcible rape of victims under the age of thirteen, R.C. 29071.02, and convicted of six of the seven counts. The trial judge sentenced appellant to two concurrent life terms consecutive to four concurrent life terms. On appeal appellant assigns two errors for review. I THE VERDICT OF GUILTY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant was convicted of twice forcibly raping a girl, once when she was nine and again a year later, and committing the same crime four times against her younger cousin. 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' testimony do not mandate a reversal of a conviction. These inconsistencies are to be resolved by the jury. "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 - 2 - have been proved beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169. A Appellant contended that the older child testified that she did not know or remember and testified to the events only in response to leading questions from the prosecutor and after a recess in which she spoke to her mother. The prosecutor did ask her whether appellant had touched her and got on top of her, and she replied that he had. (Tr. 74 and 78.) Counsel's objections were improperly overruled. However, she also testified that twice appellant took her in the backyard, put her in the van, pulled down her pants and penetrated her, although she did not want him to do it. There was no prejudice. The recess occurred after she had testified to the first incident and she testified that her mother reminded her of what she had told her mother but did not tell her what to say. On direct examination she had initially denied telling her mother but later said she didn't tell her right away and told her when the social worker came. Appellant was not prejudiced by the leading questions. There was no medical evidence to show the rape of the older child and she had previously been sexually abused by another man but she testified to the two forcible rapes. She testified that her two younger male cousins saw the first instance and she told one of them to tell and later told her younger cousin, the other victim. Her male cousin testified that he saw appellant on top - 3 - of the older victim and that she was trying to push him off. He added that appellant gave them a dollar for them to split if they would not tell, but he told his mother anyway. The two convictions for forcible rape of the older victim were not against the manifest weight of the evidence. B Appellant argued that the younger victim's memory was "hazy" in that, for example, she didn't remember whether appellant ever lived in her house (although he did), and she denied talking to the social worker or the police (with whom she had spoken). Appellant insists that she admitted that her aunt had told her what to say. She did testify that appellant did not live in her house (and later said she did not remember) but she lived in a duplex and appellant did not live on the same floor as her family. She testified that her aunt told her what to say but expanded on that by saying that her aunt told her to tell the truth. Reviewing all of her testimony the record reflects that she testified that appellant pulled on her pants and penetrated her four times while appellant was on top of her and on none of the occasions did she want him to do it. The four convictions for forcible rape were not against the manifest weight of the evidence. Assignment of error No. I is overruled. II THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR ACQUITTAL ON COUNTS ONE THROUGH SIX. - 4 - A court shall not grant a motion for 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. Appellant, citing State v. Eskridge (1988), 38 Ohio St. 3d 56, contends that there was no evidence of force but concedes that the relative size of the parties may be considered, although that alone is insufficient, and that force need not be overt and physically brutal but argues that there must be evidence that the victim's will was overcame by fear or duress. "Force" means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." R.C. 2901.01(A). However, unlike Eskridge, here the victims' testimony was clear that the penetrations were accomplished by force. The older child testified that appellant was on top of her but, more importantly, that he took her, put her in the van, pulled down her pants and that she did not want it. The younger child also testified that appellant was on top of her but, more significantly, that he pulled on her pants and that she did not want it. Their cousin testified that he saw the older girl trying to push appellant off of her. There was clearly sufficient evidence of force. Assignment of error No. II is overruled. - 5 - Judgment affirmed. - 6 - 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. 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .