COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61078 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TERRY THOMAS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : SEPTEMBER 17, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-257166 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES HYMAN FRIEDMAN CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY PUBLIC DEFENDER TIMOTHY DOBECK, ASST. BEVERLY PYLE, ASST. Justice Center - 8th Floor Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Appellant, Terry Thomas, appeals from his convictions for rape and intimidation. For the reasons set forth below, we affirm. I. Appellant was indicted by the Cuyahoga County Grand Jury on October 2, 1990 for one count of each of the following: Rape, in violation of R.C. 2907.02; kidnapping, in violation of R.C. 2905.01; and intimidation, in violation of R.C. 2921.04. Appellant pled not guilty and waived his right to trial by jury. The matter proceeded to bench trial on November 21, 1990. For its case, the state presented the testimony of the alleged victim--Sandra, her boyfriend--Marlin Cloud, Altha Thomas, Diane Hanshaw, and officers Oliver, Seelbach, Polanski, and McTier of the Cleveland Police Department. Sandra testified that she is 28 years old and lives in the City of Cleveland with her boyfriend, Marlin Cloud, and their three children. Sandra further testified that she first encountered appellant at 2:00 a.m. on August 27, 1990. Sandra was walking home from a neighborhood store when appellant approached her and asked if she wanted to "do some drugs." Sandra's testimony continued that, when she responded "no," appellant struck her in the face and pulled her into his first floor apartment. Once inside the apartment, appellant locked the door and forcibly raped her, striking her in the head and legs. - 3 - Sandra stated that appellant wore a condom while committing the alleged rape. Further, Sandra testified that appellant released her, unlocked the door with a key, and allowed her to exit the apartment. Sandra testified that she called "911" from a public telephone outside of the apartment, then proceeded home. Upon her arrival at her own apartment building, Sandra encountered a friend, Diane Hanshaw, to whom she recounted the incident. Hanshaw then drove her to Grace Hospital. Sandra was examined and released at approximately 4:00 a.m. Her testimony indicated that she then went home and told Cloud about the incident. In addition, Sandra made a police report at approximately 7:00 a.m. At 8:00 a.m. on August 27, 1990, Sandra and Cloud kept a previously arranged appointment to meet a friend, Altha Thomas. Sandra then told Thomas about the alleged rape and where it occurred. According to Sandra's testimony, Thomas then identified appellant as a possible assailant, and informed Sandra and Cloud where appellant lived. Later that morning members of the Cleveland Police Department brought appellant by her home and she identified him as her assailant. Finally, Sandra testified that on the Friday before appellant's preliminary hearing he came by her apartment and threatened to "chop her head off" if she went to court. - 4 - The state's next witness was Marlin Cloud, Sandra's boyfriend. Cloud testified that he and Sandra had been drinking together the night of August 26, 1990 and that he was not aware that she had gone out. Cloud was awoken at approximately 5:00 a.m. by Sandra and her friend, and told of what occurred. Cloud was also with her when she recounted the events to Altha Thomas. Cloud learned from Thomas where appellant lived, and went to his apartment. Cloud testified that upon arriving at appellant's apartment he accused appellant of committing the rape. According to Cloud, appellant responded, "Let's talk a minute." Cloud then began smashing appellant's door with an axe handle, then left the area. Finally, Cloud testified that he was present when Sandra identified appellant as her assailant. The state's third witness was Altha Thomas, a friend of the alleged victim. Thomas corroborated the testimony of Sandra and Cloud as to her telling them where appellant lived. Further, Thomas testified that Sandra was scared and nervous while recounting the story of her attack. The state's fourth witness, Officer Nathaniel Oliver, testified that he was dispatched to Sandra's apartment at 5:00 or 6:00 a.m. on August 27, 1990. Oliver observed that Sandra was emotionally upset as he took her statement and description of the assailant. The state's fifth witness, Officer George Seelbach, testified that he was dispatched to appellant's apartment to - 5 - investigate a possible assault. Seelbach observed the damage that Cloud did to appellant's door. During a routine check, Seelbach learned of an outstanding warrant on appellant and placed him under arrest. At appellant's request the two entered Seelbach's police cruiser and searched the neighborhood for appellant's assailant. At 2319 West 7th Street they found Cloud, who appellant identified as his assailant. At this same time, according to Seelbach's testimony, Sandra, who was with Cloud, identified appellant as her assailant. At this time Seelbach further informed appellant that he was under arrest for rape. The state's sixth witness, Officer Theodore Polanski, testified that at 8:00 p.m. on September 7, 1990 he and his partner responded to a second call at Sandra's apartment. Sandra identified appellant by name, and stated to Officer Polanski that appellant threatened to harm her if she testified at an upcoming hearing. The state's seventh witness, Detective Jonathan McTier testified that he works as a detective in the Sex Crimes Unit of the Cleveland Police Department. Detective McTier took photographs of Sandra on August 28, 1990. These photographs indicate a large bruise on her inner thigh and a swollen nose. Detective McTier testified that he interviewed appellant, who stated that the incident was not a rape, but "was about drugs." Detective McTier further testified that Sandra complained of further harassment by appellant on September 7, 1990. Finally, - 6 - Detective McTier stated that Sandra lodged a domestic violence complaint against her husband on August 26 or 27, 1990. The state's last witness was Diane Hanshaw, another friend of Sandra. Hanshaw testified that Sandra was crying when she encountered her at approximately 2:30 a.m. Hanshaw further testified that Sandra told her that she had been raped. Hanshaw drove her to Grace Hospital. At the close of the state's case, appellant moved for acquittal pursuant to Crim. R. 29. That motion was denied. For the defense, James Webb, Sheila Stanton, and appellant testified. James Webb testified that he was with appellant on the night of August 26, 1990, as the two were doing repair work on Webb's automobile. When the work was completed, the two took the automobile for a test drive. Webb further testified that the alleged victim approached the car and asked the two to give her a ride. Webb observed that the alleged victim appeared to be either drunk or on drugs at this time. Webb testified that he declined to pick her up because his wife, Michelle Buhaley and her friend, Sheila Stanton, could see them from the front porch of the Webb apartment. Webb's testimony continued that appellant asked if the alleged victim would like to "smoke a joint," to which she responded affirmatively. Finally, Webb testified that he observed appellant escort the alleged victim to his apartment, - 7 - and that he did not see appellant hit her or force her in any way. Sheila Stanton corroborated Webb's testimony by stating that she observed appellant escort the alleged victim to his apartment, neither hitting her or forcing her in any way. Appellant testified on his own behalf. Appellant's testimony about the events leading up to his meeting the alleged victim is similar to that of Webb and Stanton. Appellant testified that the alleged victim voluntarily accompanied him into his apartment, that the two smoked cocaine, and had consensual sexual relations using a condom for protection. Appellant testified further that it appeared as though the alleged victim's face was a bit swollen when they met, and that he never hit her in any manner. Appellant related that after engaging in intercourse with the alleged victim she left via the unlocked door of his apartment. Appellant's testimony continued that, later that morning, he was awoken by someone banging on his door. The person, identified as Cloud, was yelling, "I'm going to kill your black ass. Next time I come back here, I'm going to shoot you." Appellant testified that Cloud made some holes in his door with an axe. Appellant notified the police of this incident, and implicated Cloud as his assailant. Appellant denied raping the alleged victim and denied threatening her if she testified. Appellant cited his fear of - 8 - Cloud as proof that he didn't go over to her house before the preliminary hearing. On cross-examination appellant admitted that his apartment door can only be unlocked with a key from the inside. Appellant also admitted to lying to the County Welfare Department about his employment status on several occasions over a three year period. Appellant renewed his Crim. R. 29 motion at the close of the case. That renewed motion was denied. On November 21, 1990, the court found appellant guilty of the charges of rape and intimidation, and not guilty of kidnapping. On November 26, 1990, appellant was sentenced to a term of 5 to 25 years incarceration for rape, and one year incarceration for intimidation. It was ordered that the sentence be served concurrently. This appeal timely follows. II. For his sole assignment of error, appellant argues that the verdicts are against the manifest weight of the evidence. In determining whether a verdict in a criminal case is against the weight of the evidence, an appellate court should consider the following guidelines: "'"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, *** - 9 - "'"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 together in a [logical] pattern, ***."'" (Citations omitted.) State v. Mattison (1985), 23 Ohio App.3d 10, 14. These are not hard and fast rules, however, as this court cautioned in Mattison, but are mere guidelines to aid a reviewing court. The primary task of weighing the evidence and judging the credibility of witnesses is left to the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Thus, a reviewing court will reverse on the weight of the evidence only in an exceptional case. State v. Woods (1985), 25 Ohio App.3d 35, 38. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the conclusion beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, syllabus. Appellant asserts that the evidence adduced through the testimony of the sole eye witness, the alleged victim, was contradictory, implausible, unreliable, and illogical. We find, after a careful review of the record, that Sandra's testimony was - 10 - consistent in every crucial regard. No material inconsistencies arose either in her testimony or between hers and other prosecution witnesses. As to appellant's claim that the alleged victim's story was implausible or illogical, we do not think there is any typical behavior that a rape victim, or rapist should exhibit in order to bring logic to the situation. Quite simply, there is nothing logical about the crime. It is, however, important to note that in this instance Sandra reported the crime to close friends and authorities immediately. A perpetrator's actions need not be logical either. The mere fact that appellant initiated police contact to report an alleged assault is not so implausible as to bring the verdict into question. We find that there is substantial, competent, and credible evidence supporting the verdicts beyond a reasonable doubt. Sandra testified at length about the incident, and her injuries. Corroborating testimony was elicited by others which indicates that she reported the crime immediately, and sought medical attention. The credibility of appellant was brought into question throughout the trial, and particularly during his cross- examination. That the trier of fact chose not to believe his version of the incident is understandable. Furthermore, the fact - 11 - that a victim is the only witness to a rape does not necessitate a finding of not guilty. Finally, the state's reliance on some circumstantial evidence in making its case does not warrant reversal. As it was stated most recently by the Ohio Supreme Court: "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offence charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required." State v. Jenks (1991), 61 Ohio St.2d 259, paragraph one of the syllabus. Appellant's assignment of error is overruled. Judgment affirmed. - 12 - 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., and LEO M. SPELLACY, J., CONCUR. JUDGE JOHN F. CORRIGAN 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. .