COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60887 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOHNNY WYATT : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-251977 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. RONALD E. KLIMA, ESQ. Cuyahoga County Prosecutor 516 Standard Building MELODY WHITE, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Johnny Wyatt, appeals his conviction following a jury trial in the Cuyahoga County Court of Common Pleas for rape, kidnapping and felonious assault. His timely appeal raises one assignment of error which challenges the jury's verdict as being against the manifest weight of the evidence. We hold this claim is not well taken and affirm the judgment of the trial court. Michelle Walton ("the victim") walked to the corner store to purchase a pack of cigarettes on April 13, 1990 at approximately 11:00 p.m. A man, later identified as appellant, approached her and asked her for a cigarette as she returned to her home on West 14th Street. The victim recognized appellant from the area, having spoken to him briefly on a prior occasion. She gave him a cigarette and attempted to light it. The wind kept blowing the light out so appellant unlocked the door to his apartment building and they entered to light the cigarette. The victim, about five (5) minutes later, informed appellant that she had to leave because her mother was picking her up. Appellant accused her of "trying to play" him, struck her in the face with his fist, grabbed her and then dragged her downstairs to his apartment. Once inside, he stated, "you know what I want". The victim started to cry and pleaded that he let her go; he responded by telling her to shut up and continued to hit her in the face with his fist. She was then instructed to remove her clothing. She repeated her plea to let her go, but he once again struck her. The victim voluntarily removed her - 3 - clothing out of fear and appellant's hits. Appellant engaged in vaginal intercourse with the victim in the living room and fellatio while holding a gin bottle over her head. The victim observed several empty liquor bottles in the living room. Appellant then informed her that she was spending the night with him. The victim's attempt to run to the door when appellant instructed her to go to the back room provoked a struggle with appellant. They fell to the floor. Appellant tried to get his hands around the victim's neck, repeated that she was "trying to play" him and then punched her in the face. The victim yelled, "Help me. Help me. He's trying to kill me.", when she heard a knock at the door. The man outside the door said, "Let that girl go", to which appellant responded, "I'll be out in a minute." The unidentified man then threatened that he would call the police if the girl was not let go. Appellant quipped, "Fuck the police." The victim finally broke down and told appellant that she would do what he wanted her to do when he successfully got his hands around her neck, cutting off her air supply. They proceeded to the bedroom, where appellant, whose breath smelled of alcohol, engaged in vaginal intercourse with the victim several times. The victim then observed a flashlight shining in the window. The appellant saw the light too and reacted by placing his hand over the victim's mouth and telling her to be quiet. A knock on - 4 - the window was heard, followed by a shout, "Police." The appellant jumped up, grabbed his pants and ran into the hallway. The victim jumped up, opened the window and asked for the officers' help because the appellant was trying to kill her. An officer guided the victim through the window. She was eventually taken to and treated at MetroHealth Center. The victim testified that she sustained numerous physical injuries as a result of the evening with appellant. She also spent a little over three weeks in a psychiatric unit of a hospital, resulting in the loss of her employment. Michael Ward lived across the hall from appellant in a building located at 3022 Clark Avenue, Cleveland, Ohio. He testified that on April 13, 1990, his wife woke him up at approximately 11:30 p.m. and asked him if he heard a noise. Initially, he heard nothing, but after looking out the window and returning to bed, he heard a female voice scream, "Help me, Help me, he's trying to kill me." Ward went across the hall to appellant's apartment, where the voice was coming from, and said, "Let that girl out of there" or else he was going to call the police. After appellant responded, "It's cool now", Ward returned to his apartment and telephoned the police. Ward subsequently let the police officers into the apartment building where they were directed to appellant's apartment. The officers then called for backup and proceeded outside to appellant's bedroom window at Ward's suggestion, when no more noise was heard from appellant's apartment. The officers knocked - 5 - on the window and identified themselves. Ward heard a female loudly say once again, "Help me, help me." Two other police officers remained at the door to appellant's apartment. One officer kicked in the door after hearing the victim's scream for help. The appellant was observed running around while pulling up his pants. The police testified that the appellant first ignored their commands to halt. The officers then struggled with him to the ground. Patrolman Richard Huner noticed that the appellant had a strong odor of alcohol about him when he read him his rights. The appellant responded, "This is bullshit. She's my lady" when asked if he understood his rights. Empty liquor bottles were also observed in appellant's living room. No beer bottles were observed there. The emergency room physician, Dr. Joan M. Jesse, testified that the victim suffered fairly recent scratches and bruises to her face, neck, left shoulder, forearms and right knee. Also, her left eye was swollen. Dr. Jesse further noted that the victim appeared upset as she continually spit into a basin for approximately 90 minutes. The victim explained that it was difficult for her to swallow because the appellant forced her to perform oral sex. In Dr. Jesse's examination of the victim, she discovered no area of swelling or lacerations, and no clothing fibers or contaminating hairs. Moreover, two chemical tests used for the detection of sperm failed to reveal the presence of sperm. Dr. - 6 - Jesse explained that these findings did not rule out that the victim engaged in sexual intercourse. The appellant testified that he went to the corner store on the evening of April 13, 1990 to purchase some beer. As he walked to the store, a girl approached him and asked who was "holding" cocaine. She agreed to accompany him to his apartment where they were going to share some marijuana. The victim stayed in the apartment while the appellant purchased the beer. Upon his return to the apartment, the victim removed a stem from her purse which contained cocaine and asked appellant, "Do you want to hit on this." The appellant refused the offer and persuaded the victim to smoke the marijuana and drink the beer as they planned earlier. However, the victim nevertheless tried to light the stem. The appellant tried to grab the stem in order to throw it away. He explained that cocaine use was against the rules of the house. The argument and "tussle" occurred thereafter. The appellant and victim subsequently found themselves on the couch, smoking a cigarette. The victim agreed to exchange the marijuana for sex when she approached appellant on the street. She, therefore, decided to get the sex out of the way while they sat on the couch. The victim and appellant undressed and went into the bedroom. They observed a flashlight shining in the window as they positioned themselves under the bed covers. The victim jumped up at this time. The police entered the apartment and arrested the appellant. - 7 - The appellant testified that he never had a chance to engage in sexual intercourse with the victim since the police arrived at his apartment. He also doubted that the victim was the woman in his apartment on April 13, 1990. Officer Huner, on the other hand, identified the victim at trial as the woman pulled through the window of appellant's apartment on that date. The appellant was indicted by the Cuyahoga County Grand Jury on May 2, 1991 as a result of the events of April 13, 1990. He was charged with seven counts of rape in violation of R.C. 2907.02, one count of kidnapping in violation of R.C. 2905.01, and one count of felonious assault in violation of R.C. 2903.11. The last count of the indictment carried a violence specification. Appellant pled not guilty at his arraignment. Trial by jury commenced on October 29, 1990. On November 1, 1990, the jury returned a verdict of guilty on counts one, eight, and nine. A not guilty verdict was returned on counts two through seven. The trial court thereafter sentenced appellant to a term of ten (10) years actual to twenty-five (25) years. Appellant was also sentenced to a term of five (5) to fifteen (15) years on each of counts eight and nine, to be served concurrently to each other and consecutively to the sentence in count one. Appellant filed a timely appeal from the trial court's judgment, citing one assignment of error for review. Appellant's sole assignment of error provides: "I. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE." - 8 - The appellant described the April 13, 1990 incident "as an informal agreement gone awry." He stresses that his version of events directly contradicts that of the victim. He then argues that the jury relied on conflicting testimony in rendering a verdict, and, therefore, that the verdict is against the manifest weight of the evidence. This court, in addressing such a claim, reviews the entire record, weighs the evidence and all reasonable inferences, considers the witnesses' credibility, and determines whether, in resolving conflicts in the evidence, the trier of fact 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. In addition, the following guidelines for reviewing challenges to the manifest weight of the evidence were promulgated in State v. Mattison (1985), 23 Ohio App. 3d 10, 14: "1. Knowledge that even a reviewing Court of Appeals is not required to accept as true the incredible, *** "2. Whether evidence is uncontradicted, *** "3. Whether a witness was impeached, *** "4. Consideration of what was not proved, *** "5. The certainty of the evidence, *** "6. The reliability of the evidence, *** "7. The extent to which any of the witnesses may have an interest to advance or protect by their testimony, *** "8. The extent to which the evidence is vague, uncertain, conflicting, fragmentary, or not fitting - 9 - together in a [logical] pattern." [Citations omitted.] However, Mattison clearly states that these factors "are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed." Id. at 14. Finally, issues of credibility and the weight to be given evidence are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. The rape statute (R.C. 2907.02(A)(2)) provides in pertinent part that no person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. The kidnapping statute (R.C. 2905.01(A)(2)) provides in pertinent part that no person by force, threat or deception, shall remove another from the place where he is found or restrain him of his liberty to facilitate the commission of a felony. The felonious assault statute (R.C. 2903.11(A)(1)) provides that no person shall knowingly cause serious physical harm to another. Based upon the testimony of the victim that the appellant repeatedly struck her, and dragged her into his apartment, where out of fear, she engaged in sexual intercourse, along with the testimony of appellant's neighbor and the police about the victim's cries for help, this court finds that appellant's convictions are not against the manifest weight of the evidence. - 10 - The jury was free to find the victim's testimony more reliable than the appellant's testimony. Appellant's assignment of error is overruled. Judgment affirmed. - 11 - 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. FRANCIS E. SWEENEY, P.J., and LEO SPELLACY, 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. .