COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60699 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM McKINSEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY 21, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-254552 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES HYMAN FRIEDMAN, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender The Justice Center-8th Floor Robert M. Ingersoll, Esq. 1200 Ontario Street Assistant Public Defender Cleveland, OH 44113 The Marion Bldg., Room 307 1276 West Third Street Cleveland, OH 44113-1569 - 2 - PATTON, J. Defendant-appellant William McKinsey ("appellant") was indicted together with co-defendant Archie Hill on twelve counts of rape (R.C. 2907.02), one count of kidnapping (R.C. 2905.01), one count of felonious assault (R.C. 2903.11), and one count of felonious sexual penetration (R.C. 2907.12). On September 5, 1990, a jury trial was commenced and on September 13, 1990 the jury found both defendants guilty of nine counts of rape, one count of kidnapping, one count of felonious assault, and one count of felonious sexual penetration. The appellant was sentenced to nine terms of ten to twenty- five years on each of the rape convictions to be served consecu- tively. He was sentenced to concurrent terms of ten to twenty- five years on the kidnapping and felonious sexual penetration convictions. Additionally, appellant was sentenced to a concur- rent term of eight to fifteen years on the felonious assault conviction. The instant appeal challenges appellant's convic- tions. The evidence adduced at trial follows. Lisa Hunter testified that on June 4, 1990, she met Archie Hill on the street as she was on her way to work at K-Mart. Hill was in his car which was driven by the appellant because Hill is a quadriplegic with limited use of his extremities. Ms. Hunter knew Hill as they had previously lived in the same neighborhood in East Cleveland. Prior to the June 4, 1990 meeting, Ms. Hunter - 3 - had not seen Hill in nine or ten months. During the conversation Hill gave her his address and phone number and asked her to visit later that evening. Ms. Hunter went to Hill's house that night at which time she gave Hill a friend's address and phone number where she could be reached. On June 5, 1990, Ms. Hunter was waiting for a bus to take her to work when the appellant and Hill pulled up in Hill's car. Hill offered to give Ms. Hunter a ride to work which she accepted because she was already running late. The appellant first drove back to Hill's house because Hill wanted to retrieve his wallet. They arrived at Hill's house at approximately 12:30 p.m. Upon their arrival they encountered the appellant's girlfriend. According to Ms. Hunter Hill told her the appellant had to drive his girlfriend home before they could take her to work and that it would take ten minutes. When the appellant returned Hill ordered the appellant to lock the front door and do just what he had told him to do. After locking the door the appellant grabbed Ms. Hunter, threw her on the living room floor, pulled up her skirt and raped her anally. The appellant then raped Ms. Hunter vaginally. Hill was telling the appellant what to do and cheering him on from his wheelchair. The appellant informed Hill that Ms. Hunter was "bleeding real bad." The appellant then dragged Ms. Hunter into a bedroom and threw her on a bed where she was raped again vaginally. Hill - 4 - then placed himself on the bed and the appellant forced her to have oral sex with Hill by grabbing the back of her hair. Hill was able to get an erection but he did not ejaculate. The appellant then again raped Ms. Hunter both anally and vaginally. Hill next told appellant to get some pills which they made her consume with wine. After consuming the pills Ms. Hunter was left alone in the bedroom for approximately one hour. Prior to leaving the bedroom the appellant and Hill threatened to kill Ms. Hunter, her son and her mother if she left the room. Because she was afraid Ms. Hunter did not attempt to flee. At a later time Hill and the appellant returned to the bed- room. Hill commanded the appellant to get a belt which was used to beat Ms. Hunter. She was then forced to have oral sex with Hill and the appellant. Hill placed his hand inside of her and the appellant once again vaginally raped her. Upon completion of the sexual acts Hill ordered the appellant to get him a knife. After receiving the knife Hill placed it on the victim's throat and told her, "If you make another sound or make another threat, I'll kill you." The appellant left the bedroom and retired to his bedroom. Hill told Ms. Hunter to get up and turn off the television. Ms. Hunter rose up from the bed, grabbed a pair of underwear from the floor, took the knife from Hill and ran out of the house. Ms. Hunter ran down the street clad only in panties and carrying the knife. She knocked on three doors but received no - 5 - assistance. Finally a man pulled into a driveway and helped her. The police and an ambulance were called. After talking with the police the ambulance transported Ms. Hunter to Huron Road Hospi- tal where she was examined. Anthony Matthews testified that between the hours of 3:00 a.m. and 3:30 a.m. he heard someone beating on his door. Matth- ews opened the door and saw Ms. Hunter wearing only underpants and carrying a knife. Matthews did not let her into the house but he did call the police. Kevin Bonner testified that he was at work during the early morning hours of June 6, 1990. As Bonner turned into his drive- way he saw Ms. Hunter banging on his door and holding a knife. She told him she had been raped. He took the knife from her and gave her a coat to cover herself. Officer Bentley of the Cleveland Police Department testified that on June 6, 1990, he responded to a radio broadcast of a naked female running up the street with a knife. When he arrived he observed Ms. Hunter who told him she had been raped at Hill's home. After Ms. Hunter was taken to the hospital Officer Bentley went to Hill's home where he found Hill and the appellant. Hill denied having sex with Ms. Hunter but appellant admitted that he and Ms. Hunter had engaged in consensual sex. While at Hill's home Officer Bentley retrieved Ms. Hunter's clothes which he transported to the hospital. - 6 - Dr. Debra Walton of Meridia Huron Road Hospital testified that she examined Ms. Hunter on June 6, 1990. Ms. Hunter was tearful, anxious and very upset during the examination. Dr. Walter observed numerous fresh bruises on Ms. Hunter's arms, legs, buttocks, back and neck. The doctor's pelvic examination revealed obvious swelling and redness around the vagina. Addi- tionally, small tears which were bleeding were present at the vaginal opening. The anus also had swelling and tenderness. According to Dr. Walton, Ms. Hunter's injuries were caused by trauma to the given areas. Tina Wolff of the Cleveland Police Department's Scientific Investigation Unit testified that she found seminal fluid on the vaginal swabs taken from Ms. Hunter. She found no traces of seminal fluid on the anal swab, but did find seminal fluid on a pair of purple panties recovered from Ms. Hunter. The appellant testified on his own behalf. He testified that he worked for Hill in return for room and board. Appellant indicated that Ms. Hunter moved into Hill's house on June 1, 1990. According to the appellant he, Hill and Ms. Hunter left Hill's house at 11:00 a.m. on June 5, 1990 to take Ms. Hunter to the welfare department to deliver a letter. After leaving the welfare department they went to a store located on Euclid Avenue where they encountered Clyde Henderson. They talked to Henderson for approximately thirty minutes. - 7 - Later that day they went to the Urology Clinic of University Hospital for Hill's 2:45 p.m. appointment. While Hill waited to see the doctor they spoke to a woman named Leslie Aikens in the waiting room. When Hill went in to see the doctor he was accompanied by the appellant. Ms. Hunter remained in the waiting room. Hill, the appellant and Ms. Hunter left the clinic between 4:30 and 5:00 p.m. After eating dinner at McDonald's they picked up appellant's girlfriend and went back to Hill's house. At some point during the evening Ms. Hunter left the house. Appellant took his girlfriend home at approximately 10:45 p.m. When he returned Ms. Hunter had returned to Hill's house. Ms. Hunter left once again to purchase some Wild Irish Rose wine. After purchasing the wine Ms. Hunter returned and the three watched television while Ms. Hunter drank the wine. Sometime between 12:30 and 1:00 a.m. on June 6, 1990, the appellant went to bed. Appellant testified that Ms. Hunter came into his room because she wanted to have oral sex. The appellant declined Ms. Hunter's offer and she left his room crying. At 3:30 a.m. appellant was awakened by Hill calling his name. As he walked into the hallway, he observed Ms. Hunter flee out of the house. He did not attempt to go after her; rather, he locked the door and went back to sleep. - 8 - Appellant denied striking Ms. Hunter or forcing her to have sex with him on June 5, 1990 or June 6, 1990. He also denied seeing Hill strike her or force her to have sex with him. Leslie Aikens testified that she is a case manager for Com- munity Guidance, Inc., a social service agency. On June 5, 1990, she was at the Urology Clinic of University Hospital in connec- tion with her employment. She arrived at the Urology Clinic at 2:15 p.m. While in the waiting room she talked with Hill and a woman who was with Hill. Ms. Aikens identified a photograph of Ms. Hunter as the photograph of the woman with whom she had spoken at the clinic. Ms. Aikens testified that Ms. Hunter informed her she was living with Hill. According to Ms. Aikens she spoke with Ms. Hunter between the hours of 2:15 p.m. and 4:00 p.m. Jessie Rice testified that on June 4, 1990, he went to Hill's house to collect some money from Hill for repairs he made to Hill's car. He testified that Ms. Hunter was at Hill's house and she informed him that she was living with Hill. Clyde Henderson testified that he phoned Hill on June 1, 1990, and Ms. Hunter answered the phone identifying herself as Lisa. He further testified that he saw Hill, the appellant and Ms. Hunter outside of a store on Euclid Avenue at noon on June 5, 1990. He conversed with them for approximately thirty minutes. Lonzia Todd testified on behalf of the state as a rebuttal witness. She was working as a receptionist at the Urology Clinic - 9 - on June 5, 1990. She recalled signing Hill in for his appoint- ment. She also testified that she did not see Ms. Hunter in the waiting room that day but she admitted she was unable to see the entire waiting room from her desk. Also by way of rebuttal Officer John Mantifel testified that on June 6, 1990, he and his partner, Officer Bentley, received a radio broadcast and discovered Ms. Hunter at 3:30 a.m. After conversing with Ms. Hunter, they then went to Hill's house where they spoke with Hill and the appellant. Officer Mantifel testi- fied that the appellant admitted having sex with Ms. Hunter on June 5, 1990. Appellant's first assignment of error provides: WILLIAM McKINSEY'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues his convictions are against the manifest weight of the evidence. Specifically, appellant contends that the only evidence connecting him with any rape, kidnap, felonious assault or felonious sexual penetration was the testimony of Ms. Hunter which was discredited and lacked credibility. Thus, appellant urges us to reverse his convictions. Appellant's arguments lack merit. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 1969. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be - 10 - utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines wheth- er in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the convic- tion must be reversed and a new trial ordered.*** See Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. Martin, supra, at 175; see, also, State v. Davis (1988), 38 Ohio St. 3d 361, 365. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. The victim, Ms. Hunter testified that the appellant grabbed her, threw her to the floor, pulled up her skirt and raped her first anally and then vaginally. The appellant then dragged her into a bedroom where he proceeded to vaginally rape her once again. The appellant then forced here to perform oral sex on Hill by grabbing the back of Ms. Hunter's hair. Thereafter, the appellant once more raped her anally and vaginally. She was drugged and left alone for a short time. When Hill and the appellant returned to the bedroom Ms. Hunter was beaten with a belt and forced to perform oral sex on Hill and the appellant. During the early morning hours of June 6, 1990, Ms. Hunter was examined by Dr. Walton after being transported to Meridia Huron Road Hospital. During her examination Dr. Walton discov- ered numerous fresh bruises on the victim's arms, legs, buttocks, - 11 - back and neck. Additionally, Dr. Walton's pelvic examination revealed swelling, redness and fissures or small tears around the vagina. Swelling and tenderness was also discovered around the anus. Officers Bentley and Mantifel testified that they responded to a radio broadcast of a naked female running up the street with a knife. Upon their arrival they discovered Ms. Hunter who informed them she had been raped. After Ms. Hunter was transported to the hospital the officers went to Hill's house where the appellant admitted having sex with Ms. Hunter on June 5, 1990. After reviewing the entire record, weighing the evidence and considering the credibility of witnesses, we are not persuaded that the jury clearly lost its way and created such a manifest miscarriage of justice to require reversal of appellant's convic- tions. While the appellant and his co-defendant presented con- tradictory evidence the testimony of the victim and other state witnesses constituted competent, credible evidence upon which the jury could reasonably rely in concluding that appellant committed the offenses. Thus, we decline to find that the appellant's convictions are against the manifest weight of the evidence. Accordingly, appellant's first assignment of error is over- ruled. Appellant's second assignment of error provides: - 12 - THE PROSECUTOR'S MISCONDUCT IN THE TRIAL BELOW DENIED WILLIAM McKINSEY OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. The appellant's second assignment of error argues that he was denied a fair trial as a result of prosecutorial misconduct during the course of trial. Specifically, he alleges prejudice in the following portion of the prosecuting attorney's cross- examination od the appellant: Q. Officer Bentley, when you admitted you had sex with her that day, he's lying? A. Yes. Q. When, as a matter of fact, nothing happened on June 5th of 1990? Nothing unusual hap- pened? A. No. Q. I suppose the doctor is lying about the bruises and the swelling and the lacerations? MR. ROSE: Objection. MS. KANGESSER: Objection. THE COURT: Overruled. (Tr. 339.) The conduct of a prosecuting attorney during the course of trial does not constitute reversible error unless it is established that the prosecuting attorney's conduct deprived the defendant of a fair trial. State v. DePew (1988), 38 Ohio St. 3d 275; State v. Vrona (1988), 47 Ohio App. 3d 145. After reviewing the entire record, we are unable to conclude that the conduct of the prosecuting attorney materially affected - 13 - the jury or its deliberations, thereby, requiring reversal. Although the appellant was asked to comment on the truthfulness of Officer Bentley's testimony, the appellant was not prejudiced as he was able to explain on redirect that he told the officer's he had sex with the victim a number of times before this but did not specifically state he had sex with her on June 5, 1990 or June 6, 1990. The record demonstrates that the prosecutor's conduct did not prejudice the appellant or deny him a fair trial. - 14 - Accordingly, appellant's second assignment of error is over- ruled. Judgment affirmed. - 15 - 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 Court of Common Pleas 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. DAVID T. MATIA, C.J. JOHN F. CORRIGAN, J., CONCUR. JUDGE JOHN T. PATTON 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. .