COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61215 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION TIMOTHY EDWARDS, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 29, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-254,312 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant James A. Jenkins 800 Standard Building Cleveland, Ohio 44113 -2- NAHRA, P.J.: Timothy Edwards appeals from his convictions of two counts of kidnapping and one count of felonious assault. For the reasons set forth below, we affirm. On April 25, 1990, Gloria Jean Forney went to a bar with her acquaintance Linda Ferrell. Forney drove her boyfriend's car to the SKD bar on 93rd Street in Cleveland. They had a few drinks and headed back towards Forney's home. According to Forney and Ferrell, two men approached the car when it was about to stop at a stop sign. Forney testified that the heavy-set man, later identified as Lloyd Stewart, forced his way into the car. The second man, later identified as Timothy Edwards, got into the back of the car. Ferrell also stated that Stewart carried a gun which he passed to Edwards and that Edwards forced her to have sex with him in the back seat while threatening her with the gun. She testified that Gloria Forney had sex with Lloyd Stewart in the front seat. Forney denied having sex with Stewart. She testified that Lloyd Stewart punched her and held her in a choke hold while she continued to drive, and that Edwards hit her in the back of the head with the gun. Both women testified that they escaped from the car. Ferrell got out first and called 911; shortly thereafter Forney got out and called her boyfriend before calling 911. Cleveland Police Detective John Sweeney testified that he received two radio broadcasts 10 minutes apart regarding two female victims of -3- robbery in the same neighborhood. Ferrell was picked up first and Forney was picked up a few streets away. Soon after Forney was picked up the car was involved in an accident, which killed Lloyd Stewart and injured Timothy Edwards. Edwards testified on his own behalf. He claimed that he was drinking beer with Lloyd Stewart (who had just been released from jail) when the two women drove up and asked to buy drugs. The men agreed to exchange drugs for sex. After having sex, they pulled over for Ferrell to go to the bathroom. Stewart and Forney got into an argument and Stewart beat Forney up. According to Edwards, Forney fell out of the car in the same place Ferrell had gotten out. Stewart then took off with the car at a high rate of speed. Edwards said the car was going too fast for him to get out, and that Stewart kept saying that he was not going back to jail. Timothy Edwards was charged with two counts of kidnapping, one for Forney and one for Ferrell. He was also charged with one count of aggravated robbery and one count of felonious assault. The jury returned a not guilty verdict on the aggravated robbery count, and found Edwards guilty of both counts of kidnapping and felonious assault. He was subsequently sentenced by the court. Edwards timely appealed, claiming that the jury's verdict is against the manifest weight of the evidence. 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. -4- State v. Eley (1978), 56 Ohio St.2d 169. In State v. Martin (1983), 20, Ohio App.3d 172, the court set forth the test to be 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 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Martin, supra at 175. Moreover, the weight of the evidence and credibility of witnesses are primarily for the trier-of-facts. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. R.C. 2905.01 reads in pertinent part as follows: 2905.01 Kidnapping (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: * * * (2) To facilitate the commission of any felony or flight thereafter; * * * (4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will; * * * R.C. 2903.11 reads in pertinent part as follows: 2903.11 Felonious assault -5- (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. The record reflects substantial evidence from which the jury could conclude that the offense of felonious assault was proved beyond a reasonable doubt. Both Forney and Ferrell testified that appellant was sitting in the back seat of the car with a gun, and that they feared for their lives. Transcript at 38, 101, 141. Forney also testified that appellant beat her in the neck with the gun from the back seat. Transcript at 43, 50, 103. An inoperable gun can still be considered a deadly weapon pursuant to R.C. 2903.11(A)(2) if it can be used as a bludgeon as it was in this case. State v. Hicks (1984), 14 Ohio App.3d 25. The jury reasonably could have believed Forney's testimony that appellant beat her in the back of the head with a gun, such that he either caused or attempted to cause physical harm to her pursuant to R.C. 2903.11. The record also contains probative evidence to substantiate the kidnapping charges. Both women testified that they were held in the car by threat of force. Transcript at 101, 141. Forney testified that appellant committed felonious assault. Transcript at 43, 50, 101. Ferrell testified that appellant sexually assaulted her. Transcript at 141. Edward's testimony that the women left the car at the same location was inconsistent with the -6- testimony of the victims and the police officers who responded to their separate calls to 911. Transcript at 170, 222. Therefore, the verdict is not against the manifest weight of the evidence. Appellant's assignment of error is overruled. Affirmed. -7- 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. SWEENEY, JAMES D., J., and KRUPANSKY, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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. .