COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60656 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION JOHN HARRELL : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 4, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 249412 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Everett A. Chandler Cuyahoga County Prosecutor 815 Superior Avenue #2020 By: Winston Grays Cleveland, Ohio 44114 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: John Harrell was indicted for kidnapping (R.C. 2905.01), rape (R.C. 2907.02), felonious assault (R.C. 2903.11) and having a weapon while under disability (R.C. 2923.13) with firearm and violence specifications. A jury found Harrell guilty of the felonious assault and disability charges but not guilty on the remaining counts. He timely appeals his 1 convictions advancing four assignments of error. Upon a review of the record, we affirm. The victim, Sheila Veal, testified she met the defendant on January 27, 1990 at approximately 3:00 p.m. on her way into Sam's Bar on E. 131st Street. Harrell asked Veal if he could buy her a drink. Veal agreed and the two spent the afternoon in the bar. Veal stated she had one beer and a sandwich while Harrell drank "a few" beers and some liquor. According to Veal, she and Harrell discussed "going riding [in his auto] and getting high." They left the bar at 6:00 p.m. in Harrell's car which had been at a nearby car wash. Veal told the jury they went for a "long ride" eventually arriving at Harrell's South Euclid house. Veal accepted Harrell's invitation to go into the house and she accompanied him to the third floor where Harrell said he "entertained." There they smoked cocaine and drank beer. 1 See Appendix. - 2 - At some point in the evening, Harrell allegedly started "talking crazy" and telling Veal she was going to "f*** him good." Veal testified the defendant made "mean looking faces" and told her, "Bitch, get in the bed." Harrell purportedly ordered Veal to remove her clothes and then engaged in vaginal intercourse with her. Veal testified she then dressed and went downstairs on the pretext of getting another beer. While downstairs, she tried to leave the house but the doors were locked and required keys from the inside. When Veal went back upstairs, the defendant told her to "suck his d***" which she did at gunpoint. The defendant again ordered her to remove her clothes and engaged in intercourse. Harrell repeatedly accused Veal of permitting someone in his house while she was downstairs. Veal testified she went downstairs with Harrell where he kicked and "strangled" her. Because Veal thought Harrell would kill her, she tried to escape through a window but the defendant caught her and forced her to crawl to the kitchen. During this struggle, Harrell "lost" his gun. Veal estimated they fought for "hours" until Harrell finally drove her from the house in his auto. While at a stoplight, Veal escaped from the car and phoned police from a nearby bar. She was able to furnish police with the license plate number from the defendant's vehicle. Cleveland Heights police officers drove Veal back to Harrell's house where the defendant was sitting on his front porch. - 3 - South Euclid Heights police officers also arrived at Harrell's house in response to Veal's allegations. Officer James Franey retrieved Veal's jeans from inside the defendant's house and described the living room as "in a shamble." South Euclid Police Detective Charles Madger told the jury that the doors to the house had "a double locking dead bolt" which required "a key to lock or unlock it either from the inside or the outside." Madger's search of the house disclosed a box of Federal cartridges containing forty-eight bullets. Two cartridges were missing. Madger testified that in August 1990 he found a .32 caliber derringer pistol on a shelf in the defendant's basement. The pistol was loaded with two Federal cartridges. At trial, Veal identified this weapon as the gun used by Harrell on the night she was assaulted. Detective James Pitten interviewed Veal at Hillcrest Hospital in the early morning hours of January 28. Veal, who had a black eye, told the officer that Harrell threatened her with a small silver-colored double-barrelled gun. Pitten testified he immediately thought of a derringer. The officer also observed the successful test-firing of the derringer found in defendant's house. In defense, John Harrell testified he met Veal outside Sam's Bar on the afternoon of January 27, 1989. Harrell averred it was Veal who asked if he used cocaine and suggested they go to his house. According to Harrell, Veal purchased cocaine from her cousin at the car wash with money Harrell gave her. The two then - 4 - drove to defendant's house where they smoked the cocaine for approximately three hours. During this time, Veal allegedly asked if she could get "comfortable" and took off all her clothes. Harrell claimed he suggested she put a sheet around her. Harrell told the jury Veal "started getting real nervous and irritable like" so he offered to take her back to the bar. On the way out of the defendant's house, Veal allegedly tried to jump out a window. The defendant testified he grabbed her and threw her on the floor. After he calmed Veal down, Harrell convinced her to leave the house with him. The defendant claimed that before Veal left his car she stated, "I'm going to tell them you raped me." Harrell denied the two had intercourse at anytime that evening. The defendant further averred the derringer found in August 1990 was not present in his house the night of Veal's allegations. Finally, the defense stipulated to Harrell's prior conviction for carrying a concealed weapon. In his first assignment of error, Harrell asserts the court improperly admitted the derringer into evidence. The defendant argues the weapon was inadmissible since police did not find it in his house until approximately seven months after the date of the alleged crimes. We disagree. Evid. R. 401 defines relevant evidence as: - 5 - "*** evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The admission of relevant evidence rests within the sound discretion of the trial court. State v. Jells (1990), 53 Ohio St. 3d 22, 30; State v. Sage (1987), 31 Ohio St. 3d 173. Hours after the alleged crimes, Veal told police the defendant threatened her with a small silver-colored double- barrelled gun. The interviewing officer immediately thought she was describing a derringer. More importantly, Veal testified that the gun found during the August 1990 search was the same weapon Harrell used the night of the assault. Since Veal identified the weapon and it matched her earlier descriptions, the trial court properly determined the evidence was relevant and therefore admissible. See State v. Martin (1985), 19 Ohio St. 3d 122, 130. We note the jury was aware that the police did not locate the gun until months after the assault and could weigh this fact in reaching its verdict. See State v. Morgan (1986), 31 Ohio App. 3d 152, 154. This assignment of error is overruled. Harrell's second assignment of error disputes the sufficiency of the evidence. His third assignment of error - 6 - asserts the verdict is against the manifest weight of the evidence. We address these arguments concurrently. A challenge to the sufficiency of the evidence requires us to view the record in a light most favorable to the prosecution and determine whether rational minds could have found each material element of an offense was proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259; Jackson v. Virginia (1979), 433 U.S. 307. Our review of a challenge to the manifest weight of the evidence is broader. State v. Martin (1983), 20 Ohio App. 3d 172. As the Martin court stated: "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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id. at 75. (Citations omitted.) We are mindful that evaluation of witness credibility primarily lies with the jury. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2903.11 defines felonious assault as: "(A) No person shall knowingly: "(1) Cause serious physical harm to another; "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised code." Having a weapon while under disability is proscribed by R.C. 2923.13 which provides in pertinent part: "(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall - 7 - knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: "*** "(2) Such person is under indictment for or has been convicted of any felony of violence, or has been adjudged a juvenile delinquent for commission of any such felony." The defendant received six years actual incarceration in addition to his sentences for the above defined crimes since he used a firearm to commit the felonies. See R.C. 2929.71(A) and (B). It is Harrell's position that the evidence does not support his convictions since the derringer was not found at the time of the crimes. As we discussed in the first assignment, Veal identified the weapon as the gun the defendant used the evening of the assault. The weight to be given this evidence, in light of the fact that police located it seven months after the crime, was properly left to the jury's determination. Morgan, supra. Harrell also appears to argue that the jury returned inconsistent verdicts by acquitting him of the rape and kidnapping charges but finding him guilty of the remaining counts. It is well-established that several counts of an indictment are not interdependent and an inconsistency in a verdict does not arise from inconsistent responses to different counts. State v. Brown (1984), 12 Ohio St. 3d 147, syllabus. The defendant's second and third assignments of error are overruled. - 8 - In his fourth assignment of error, Harrell asserts the court erred by not allowing him time to arrange his personal affairs before incarceration. The defendant was indicted February 20, 1990 and remained free on bond until September 13, 1990 when he was jailed on other charges. Trial in the instant case commenced on September 13 with a jury verdict seven days later. At his October 12, 1990 sentencing hearing, Harrell asked the court to permit him time to arrange his personal affairs before execution of his sentence. The court denied this request. Sentencing decisions rest within the sound discretion of the trial court. State v. Coyle (1984), 14 Ohio App. 3d 185; Miamisburg v. Smith (1982), 5 Ohio App. 3d 109. An appellate court will not disturb the trial judge's decision absent an abuse of that discretion. Smith, supra. The court was under no duty to delay execution of the defendant's sentence and we find no abuse of discretion in the trial judge's decision. The defendant remained free on bond for the seven months between indictment and trial during which time he could have made contingency plans for incarceration. Further, it appears from the record that Harrell was in jail pending trial in another case at the time he was sentenced on the instant charges. Thus, the defendant would have remained in jail even if the court had granted his request in this case. This assignment of error is overruled. - 9 - In his fifth assignment of error Harrell again contests the admission of the derringer. The defendant claims that in another case a motion to suppress the gun was granted. He, therefore, argues the weapon should have been excluded in the instant case. The record demonstrates Harrell did not file a motion to suppress in this case. His failure to do so results in a waiver of this issue on appeal. State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus. Accordingly, this assignment of error is not well-taken and the judgment of the trial court is affirmed. -10- 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. KRUPANSKY, J., CONCURS JUDGE ANN MCMANAMON 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. -11- APPENDIX Appellant's assignments of error are: I "The trial court erred in allowing the prosecution to use a weapon which was not found in conjunction with this case." II "The trial court erred in overruling the motion for directed verdict filed on behalf of appellant." III "The verdict was against the manifest weight of the evidence." IV "The appellant should have been allowed time to take care of his personal affairs prior to incarceration." V "The weapon is nonexistent at this point in the proceeding." .