COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61294 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CHARLES PRICE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 19, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-244,439 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor THOMAS A. REIN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES R. WILLIS Attorney at Law 610 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114 - 1 - FRANCIS E. SWEENEY, P.J.: After a jury trial, defendant-appellant, Charles Price, was found guilty of one count of kidnapping (R.C. 2905.01) and one count of gross sexual imposition (R.C. 2907.05). Appellant timely appeals his conviction. For the reasons set forth below, we affirm the trial court's decision. The pertinent testimony at trial is as follows: The victim, Jennifer Ann Carter, testified that at approxi- mately 6:20 a.m. on September 8, 1989, she was waiting to catch a bus at a bus stop at East 127th Street and Miles Avenue in Cleve- land, Ohio to take her to work. A male, identified as the appellant, driving a burgundy Honda, stopped his vehicle and asked the victim if she wanted a ride. The victim said, "No," and walked three or four steps in the opposite direction from which the appellant was travelling. A second male walked past the victim and said, "Hello." This second male was later identified as Archie Harris, an independent witness in the case. Approximately five minutes after the victim observed the appellant's car physically leave, the appellant approached the victim on foot and told the victim, "Don't run." The appellant was standing in front of the victim's face at that time. The victim ran, and the appellant chased her across the street and grabbed her. The victim broke away from the appellant - 2 - and ran at an angle toward East l23rd Street on the bus-stop side of Miles Avenue. The appellant caught the victim from behind and began dragging her as she screamed and struggled to get away. The appellant dragged her back across Miles Avenue on the oppo- site side of the bus stop and threw her on the ground at a loca- tion about five or six feet from Miles Avenue. The appellant then stuck his hands inside the victim's underwear and touched her vagina. The victim continued screaming and begging him to stop throughout this period. The male who had previously said, "Hello," to the victim, Archie Harris, was standing on East 126th Street and ran to help the victim. The appellant saw Archie Hill, jumped up, and ran away. On September 9, 1989, the victim went to Randall Park Mall, where she saw a male she knew named Larry Hinton. After telling him about her attack, the victim walked into a store. Inside the store, the victim saw the appellant there with his wife. When the appellant saw the victim, he pulled his cap down over his face. The victim observed that the appellant had on the same "Air Jordan tennis shoes" that he wore during the attack, which were still muddy from the day before. Then, Larry Hinton came into the store, and the victim told Mr. Hinton that the man who attacked her was "standing over there." Mr. Hinton told her that she must be wrong as the appellant was his cousin. At the vic- tim's request, Mr. Hinton introduced her to the appellant. The appellant would not look at her and appeared nervous and was - 3 - fumbling with his hands. The victim left the mall and called the police department. Archie Harris testified that on September 8, 1989, he was walking on Miles Avenue when he saw the victim standing by a bus stop on East 126th Street and Miles Avenue. As he continued walking, he saw the appellant standing by a barbershop on Miles Avenue. Mr. Harris walked to East 123rd Street when he heard a girl screaming. Mr. Harris ran back to the area of East 123rd Street where he saw the appellant drag the victim across Miles Avenue to the north side of the street where he attacked her. Mr. Harris saw a burgundy Cougar behind the barbershop. The appellant testified that he resides at 12608 Miles Ave- nue, right across the street from the bus stop where the victim was attacked. The appellant testified he owns a red, burgundy Honda. On September 7, 1989, the evening before the attack, the appellant went over to his nephew's house and did not leave there until 9:30 a.m. the next morning. The appellant admitted to see- ing the victim at Randall Park Mall on September 9, 1989. The appellant denied attacking the victim. Steve Shade, the appellant's nephew, testified that appel- lant spent the night at his house on September 7, 1989 and left the next morning. The appellant was driving a burgundy Honda on the night before the attack. Based upon all of the evidence at trial, the jury found appellant guilty of kidnapping (R.C. 2905.01) and gross sexual - 4 - imposition (R.C. 2907.05). Appellant now timely appeals, raising one assignment of error for our review. ASSIGNMENT OF ERROR I THE VERDICT RENDERED HEREIN IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CON- TRARY TO LAW. Appellant contends the verdict is against the manifest wei- ght of the evidence. In addressing such a claim, this court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and de- termines 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), 19 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 to engage in sexual activity against her will and fail to release the victim in a safe place unharmed. The gross sexual imposition statute (R.C. 2907.05) states, in pertinent part, that no person shall have sexual contact with another, not the spouse - 5 - of the offender, by compelling such person to submit by force or threat of force. In the present case, the victim identified the appellant as the male who dragged her away from the bus stop against her will and engaged in sexual activity with her against her will. In addition, Archie Harris, an independent witness, testified that the appellant was the male who attacked the victim. Therefore, competent, credible evidence existed to support the trial court's finding that appellant was guilty of kidnapping (R.C. 2905.01) and gross sexual imposition (R.C. 2907.05). The jury was free to find the state's witnesses more credible than the defendant's witnesses. Assignment of Error I is overruled. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. 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. ANN McMANAMON, J. HARPER, J. CONCUR PRESIDING 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. .