COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60884 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ARCHIE HILL : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 2, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-249,257 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL HORN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: EDWARD WADE Attorney at Law 75 Public Square Building Suite 1210 Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, J.: Defendant-appellant Archie Hill timely appeals his conviction for one count of kidnapping (R.C. 2905.01), fifteen counts of rape (R.C. 2907.02), and one count of felonious assault (R.C. 2903.11). For the reasons set forth below, we affirm the convictions of appellant. The pertinent testimony adduced at the jury trial is as fol- lows: The victim, Rachel Rafail, testified that on January 5, 1990, she saw Ray Leasure on the street near Collinwood High School. The victim told Mr. Leasure that she did not want to see him any more. Mr. Leasure grabbed the victim and took her to a nearby house. Mr. Leasure called the appellant and had the appellant and his driver pick up Mr. Leasure and the victim. The victim was taken to appellant's house, where Mr. Leasure punched and kicked the victim with the appellant in the room. The victim was held against her will at appellant's house for several days. Mr. Leasure pulled out a gun owned by the appellant and threat- ened to kill the victim. Mr. Leasure beat the victim's back and buttocks with an extension cord. Mr. Leasure told the victim that he was going to the store and that if she tried to leave, he would come looking for her. After he left, the victim attempted to leave, but then observed Mr. Leasure sitting in a car two houses down the street. Mr. Leasure came back to the house and - 2 - forced the victim to have vaginal intercourse with him. The appellant was in the room with the victim and Mr. Leasure when the forced vaginal intercourse occurred, but he said nothing. The victim was then forced to perform oral and vaginal inter- course with the appellant. The next morning, January 6, 1990, the victim was again forced to have vaginal and oral intercourse with the appellant. While the appellant quietly watched, the victim was forced to have vaginal and anal intercourse with Mr. Leasure. The victim was then forced to perform oral sex on a male named Barry for money so that Mr. Leasure could get the money. After Barry left, the victim was forced to have vaginal intercourse with Mr. Leasure. On each of the following two days, January 7 and 8, 1990, the victim was forced to perform oral sex on the appellant and oral and vaginal intercourse with Mr. Leasure. The morning of January 9, 1990, the victim was forced to have oral sex with the appellant and Mr. Leasure. The victim finally escaped with the help of a friend named Debbie under the pretense of prostituting themselves for the appellant and Mr. Leasure. The victim went to a friend's apartment and contacted the Cleveland police. William McKenzie testified that he was at the appellant's house when the victim was brought there. Mr. McKenzie testified that the appellant influenced Mr. Leasure to beat up the victim. - 3 - The appellant also urged Mr. Leasure to beat the victim with an extension cord. George Pettit, M.D., a physician at Meridia Euclid Hospital, testified that he treated the victim for an alleged rape. The victim had abrasions and bruises on her back and buttocks that were consistent with trauma or a beating with a cord. The victim also had injuries to her rectum that were consistent with trauma. Dr. Pettit also testified that tests conducted on the victim for the presence of sperm were positive. Based upon the above evidence, the jury found the appellant guilty of one count of kidnapping (R.C. 2905.01), fifteen counts of rape (R.C. 2907.02) and one count of felonious assault (R.C. 2903.11). Appellant now timely appeals, raising six assignments of error for our review. ASSIGNMENT OF ERROR I DEFENDANT-APPELLANT'S CONVICTIONS WERE CON- TRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant contends his convictions for kidnapping (R.C. 2905.01), rape (R.C. 2907.02) and felonious assault (R.C. 2903.- 11) are against the manifest weight of the evidence. If there were evidence which, if believed, would convince the average person of the accused's guilt beyond a reasonable doubt, we must reject his contention. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. In addressing appellant's claim that the convic- - 4 - tions are against the manifest weight of the evidence, this court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether in resolving conflicts in the evidence, the factfinder clearly lost its way and created such a miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App. 3d 172, 175. It is primarily the function of the jury to determine the weight to be given the evidence and the credibility of the wit- nesses. Where the record reveals that a conviction was based upon sufficient evidence, an appellate court may not reverse a jury verdict. State v. DeHass (1967), 10 Ohio St. 2d 230. The kidnapping statute (R C. 2905.01) states, in pertinent part, that no person, by force, threat, or deception, shall remove another from the place where she is found or restrain her of her liberty for the purpose of facilitating the commission of a felony and/or inflicting serious physical harm on the victim and/or engag-ing in sexual activity with the victim against her will. The rape statute (R.C. 2907.02) states, in pertinent part, that no person shall engage in sexual conduct with another who is not the spouse of the offender when the offender purposely com- pels the other person to submit by force or threat of force. The felonious assault statute (R.C. 2903.11) states, in pertinent part, that no person shall knowingly cause serious physical harm to another. - 5 - In the present case, the victim testified that Mr. Leasure and the appellant took the victim to appellant's home against her will, where she was punched and kicked in the presence of appel- lant. The victim was told that if she attempted to leave the home, Mr Leasure would come and look for her. Mr. McKenzie testified that appellant encouraged Mr. Leasure to beat the victim. The victim testified that she was forced to have sexual intercourse with the appellant, Mr. Leasure and another male over the next several days. Based upon the above testimony and other corroborating testi-mony and exhibits, we find that the jury was provided with sufficient evidence to find the appellant guilty of all charges. Thus, we conclude that appellant's convictions are not against the mani-fest weight of the evidence. Assignment of Error I is overruled. ASSIGNMENT OF ERROR II PROSECUTORIAL MISCONDUCT DENIED THE APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Appellant contends that the prosecutor improperly questioned the victim regarding the appellant's use of his gun on the victim during a prior incident at appellant's home. This argument is without merit. Appellant did not object to this alleged error at the trial when such alleged error could have been avoided or corrected by the trial court. State v. Williams (1977), 51 Ohio St. 2d 112. - 6 - Therefore, appellant has waived this claimed error unless, but for the error, the outcome of the trial clearly would have been other-wise. State v. Underwood (1983), 3 Ohio St. 3d 12. The conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives defendant of a fair trial. State v. Apanovich (1987), 33 Ohio St. 3d 19. Here, the prosecutor's questions sought to prove that appellant owned the gun used by Mr. Leasure in the present incident. This evi- dence was relevant to show that appellant acted in concert with others to commit the crimes. See, R.C. 2945.59. Therefore, the questions were not improper and did not constitute plain error. Assignment of Error II is overruled. ASSIGNMENT OF ERROR III DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Appellant contends that he was denied effective assistance of counsel in that defense counsel failed to present certain witnesses at trial. This argument is without merit. In order to demonstrate a claim of ineffective assistance of counsel, the appellant must show that (1) defense counsel's per- formance at trial was seriously flawed and deficient and (2) the result of the trial would have been different if defense counsel had provided proper representation at trial. Strickland v. - 7 - Washington (1984), 466 U.S. 668. Decisions regarding the calling of witnesses are within the purview of trial tactics and do not, absent a showing of prejudice, deny a defendant effective assis- tance of counsel. State v. Miller (1988), 43 Ohio App. 3d 44, 45. In the present case, appellant contends that his wife, Phyllis Hunter, would have testified that she took a picture of the victim at the Walford Road home in December, 1990. Appellant has not demonstrated the relevance of this testimony and, thus, we cannot find that counsel erred in failing to subpoena this witness. Next, the appellant asserts that Kim (last name un- known) would have testified that she was in appellant's house during part of the incident. However, the record does not re- flect that defense counsel was made aware of this witness. Furthermore, we can find no evidence that defense counsel was made aware of the witnesses Andrea Edwards, Mary McKinley or Belinda Slaughter. Thus, the failure to call these witnesses does not indicate that counsel was ineffective. The witnesses Carolyn Cromwell and Eric Howard were subpoe- naed by defense counsel but failed to appear at the trial. The witness Debbie Little was brought to the attention of defense counsel, but counsel elected not to have her testify based on his opinion that she would have "buried us." Debbie Little would have corroborated the victim's testimony regarding the victim's escape from appellant's house. Admission of this testimony may - 8 - have been damaging to appellant and, thus, appellant was not prejudiced by counsel's decision not to call this witness to testify at trial. Finally, appellant contends defense counsel was ineffective in failing to have a photograph of the victim with Mr. Leasure identified by the victim and admitted into evidence. However, appellant has not demonstrated how the photograph, taken in December 1989, would have been relevant to the case or aided appellant's defense. Thus, we cannot find that appellant was prejudiced by defense counsel's failure to admit the photograph in evidence. Accordingly, we find that appellant was not denied effective assistance of trial counsel. Assignment of Error III is overruled. ASSIGNMENT OF ERROR IV THE TRIAL COURT ERRED IN FORCING DEFENDANT- APPELLANT TO PROCEED TO TRIAL WHEN ADVISED PRIOR TO, DURING, AND AFTER THE VERDICT THAT APPOINTED COUNSEL HAD NOT COUNSELLED WITH HIM PRIOR TO TRIAL, HAD NOT SUMMONED THE WIT- NESSES HE HAD REQUESTED, AND WAS ANTAGONISTIC TO DEFENDANT THROUGHOUT THE TRIAL. Appellant contends that the trial court erred in overruling appellant's request for new court-appointed counsel on the ground that counsel failed to subpoena witnesses and failed to properly represent him. This argument is without merit. - 9 - To discharge a court-appointed attorney, the defendant must show a breakdown in the attorney-client relationship of such mag- nitude as to jeopardize the defendant's right to effective assis- tance of counsel. State v. Coleman (1988), 37 Ohio St. 3d 286. In the present case, a review of the record indicates that defense counsel was extensively prepared for the case, as evi- denced by counsel's thorough cross-examination of witnesses and trial strategy. Furthermore, we addressed appellant's contention that defense counsel failed to subpoena witnesses in Assignment of Error III and found this argument to be without merit. Accordingly, we conclude that the trial court did not abuse its discretion in overruling appellant's request for new court- appointed counsel. Assignment of Error IV is overruled. ASSIGNMENT OF ERROR V THE TRIAL COURT ERRED TO THE DEFENDANT'S PREJUDICE IN ADMITTING CERTAIN "SIMILAR ACTS" TESTIMONY. Appellant contends the trial court improperly allowed the victim to testify that appellant had pulled his gun on her in a prior incident and improperly allowed William McKenzie to testify that Mr. McKenzie was convicted of a rape arising out of his bringing a woman to appellant's house and the woman performing sexual acts on the appellant. This argument is without merit. - 10 - Generally, evidence of previous criminal acts wholly inde- pendent of the criminal offense for which a defendant is on trial is inadmissible. State v. Thompson (1981), 66 Ohio St. 2d 496, 497. Evidence of other acts is inadmissible to show the defen- dant's propensity or inclination to commit an offense. State v. Curry (1975), 43 Ohio St. 2d 66, 68. The only exceptions to the general rule of inadmissibility are set forth in Evid. R. 404(B): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in con- formity therewith. It may, however, be ad- missible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mis- take or accident. (Emphasis added.) See, also, R.C. 2945.59. Thus, if the other act tends to show by substantial proof any of those enumerated items, and when it is relevant to prove the defendant's guilt of the offense in question, the other act may be admissible. State v. Broom (1988), 40 Ohio St. 3d 277, 282; State v. Demarco (1987), 31 Ohio St. 3d 191; State v. Flonn- ory (1972), 31 Ohio St. 2d 124, 126. In the present case, William McKenzie testified that he was convicted of a rape involving Mr. McKenzie bringing a woman over to appellant's house. Mr. McKenzie testified that the woman then had consensual sex with the appellant. We find that this testi- mony was admissible to show a common plan or scheme used by the appellant in the commission of the crimes charged. - 11 - Likewise, we previously addressed in Assignment of Error II appellant's argument that the victim improperly testified about appellant's gun. We found that this testimony was admissible to show that he acted in concert with others to commit the crime. Assignment of Error V is overruled. ASSIGNMENT OF ERROR VI THE TRIAL COURT ERRED IN SENTENCING THE DEF- EN-DANT ON THE KIDNAPPING CONVICTION BECAUSE IT CONSTITUTED AN ALLIED OFFENSE OF SIMILAR IMPORT TO THE RAPE CONVICTION. Appellant contends that the trial court erred in sentencing him on the kidnapping conviction because it constituted an allied offense of similar import to the rape conviction. This argument is without merit. While rape and kidnapping are offenses of similar import, appellant may be convicted of them separately if he committed them separately or if he possessed a separate animus as to each. (R.C. 2941.25[B]). In State v. Logan (1979), 60 Ohio St. 2d 126, the court held that rape and kidnapping are committed with a separate animus where the restraint is prolonged, the confinement is secre-tive, or the movement is substantial so as to demon- strate a signi-ficance independent of the other offenses. In the present case, the victim's restraint lasted for several days and consisted of multiple rapes and assaults. Thus, the restraint was so prolonged as to "demonstrate a significance inde-pendent of the other offenses." - 12 - Accordingly, we conclude the two crimes were committed with a separate animus under R.C. 2941.25(B) and, therefore, the appel-lant may be convicted and sentenced of each separately. Assignment of Error VI is overruled. Judgment affirmed. - 13 - 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 Cuyahoga County 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. DYKE, P.J. JAMES D. SWEENEY, J. CONCUR JUDGE FRANCIS E. SWEENEY 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. .