COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67153 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WILLIAM HILLENBRAND : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-303934. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Richard A. Bell, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Gregory T. Stralka, Esq. 400 The Standard Building 1370 Ontario Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Defendant-appellant, William Hillenbrand, appeals from his conviction of kidnapping in violation of R.C. 2905.01. The appeal concerns appellant's right to a fair trial, the effective assistance of counsel, the trial court's denial of appellant's Crim.R. 29 motion and the manifest weight of the evidence. For the following reasons, this court affirms appellant's conviction. I. STATEMENT OF FACTS On October 26, 1993, at about 9:00 a.m., the victim Deborah Hobbs was kidnapped on West 65th Street in Cleveland, Ohio. The victim was 12 years old at the time of the incident. On December 22, 1993, appellant was indicted by the Cuyahoga County Grand Jury for kidnapping in violation of R.C. 2905.01. Appellant pled not guilty to the charge. During jury selection, a prospective juror acknowledged she was the victim of an attempted molestation at age 12. When the court asked whether this fact would cause her a problem, the juror responded "I did not know." When the defense asked whether she could be fair to the defendant and whether she could presume him innocent, the prospective juror again responded "I don't know." After additional questioning, the juror remained on the case without any challenges. The State presented the testimony of the victim, a witness to the kidnapping and three other individuals. The victim testified that while walking to school, the appellant began following her -3- in his automobile. As the victim bent down to pick up a book marker she had dropped, appellant pulled in a driveway in front of her, grabbed her by the arm and attempted to pull her in through the open passenger side window. The victim was approximately half way in the automobile and was screaming. As appellant was pulling her through the window, the victim's head hit the roof of the automobile numerous times. Appellant told her to be quiet. During the struggle, appellant ripped part of her coat's zipper off. The victim managed to pry herself loose and ran down the street. The victim was picked up by a good samaritan bus driver and taken to her aunt who was standing at a nearby school bus stop with her son. Michael Boyle, a witness to the kidnapping, testified that while he was driving to work that morning, he saw appellant's car almost up on the sidewalk. He witnessed appellant attempting to "yank" the victim through the window as the girl screamed for help. Mr. Boyle testified the appellant looked straight at him and stated: "You didn't see nothing". Mr. Boyle then motioned to the bus driver to help the victim and followed the appellant as he drove away. Mr. Boyle took down the appellant's license plate number and memorized the make of the automobile. Richard Stands, a security guard at appellant's place of employment, testified that he was familiar with appellant's automobile and its contents as he had previously approached appellant sleeping in the automobile on company premises. Mr. Stands was on duty the night the police arrested appellant and -4- had identified at trial the police photographs taken of the inside of an automobile as being that of appellant's car. Mr. Stands further testified on October 26, 1993 that appellant had finished work approximately an hour and one-half before the abduction of the victim. Tammy Simon was the victim's aunt. Ms. Simon testified she was standing at a bus stop with her son on West 65th Street when she witnessed the victim get off the school bus. Ms. Simon testified the victim was terrified and crying. The victim told Ms. Simon that a man tried to pull her into his car telling her "your (sic) coming with me." Ms. Simon testified she witnessed numerous red marks which later turned into bruises on the victim's arm where appellant had grabbed her. Ms. Simon then took the victim home. The State also called to the stand Detective Sweeney who spoke with and took statements from both Mr. Boyle and the victim. Detective Sweeney had compiled a photo array of six photographs and showed them to Mr. Boyle and the victim separately. Both identified appellant as the man who kidnapped Debbie Hobbs. On March 18, 1994 the jury found appellant guilty of kidnapping as charged. Appellant was sentenced for a term of 8 to fifteen years to be served consecutively with a prior rape conviction and fined $7,500. After being appointed a public defender, appellant timely filed this appeal. II. FIRST AND SECOND ASSIGNMENTS OF ERROR -5- Since defendant-appellant's, William Hillenbrand, first and second assignments of error involve similar issues of law and fact, this court will consider them concurrently. I. THE TRIAL COURT VIOLATED THE APPELLANT/DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN IT DID NOT DISMISS A JUROR FOR CAUSE AFTER SAID JUROR STATED SHE DID NOT KNOW IF SHE COULD BE IMPARTIAL. II. THE APPELLANT/DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO EXERCISE A PEREMPTORY CHALLENGE TO REMOVE A JUROR AFTER SAID JUROR STATED SHE DID NOT KNOW IF SHE COULD BE IMPARTIAL. A. ISSUE RAISED: WHETHER APPELLANT SUFFERED PREJUDICE BY THE INCLUSION OF THE PROSPECTIVE JUROR Defendant-appellant, William Hillenbrand, argues the inclusion of the prospective juror affected his right to a fair trial. Appellant also argues his counsel's failure to object and/or challenge that the juror's inclusion constitutes the ineffective assistance of counsel. Specifically, appellant refers to the examination of the prospective juror during voir dire where she opined she was not sure whether she would be able to remain impartial throughout the proceedings. This being established, appellant argues the juror should not have been permitted to become a juror where she could have influenced other members of the panel. Appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW CONCERNING JUROR BIAS -6- "The right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors." Irvin v. Dowd (1961), 366 U.S. 717, 722. See also, State v. Bayless (1976), 48 Ohio St.2d 73. The determination of juror bias necessarily involves a judgment on credibility, the basis of which will not often be apparent from an appellate record. Wainwright v. Witt (1985), 469 U.S. 412. Accordingly, deference must be paid to the trial judge who sees and hears the juror. Id.; State v. Adams (1991), 74 Ohio App.3d 759. Our review is therefore limited to whether the trial court's determination constitutes an abuse of discretion. See State v. Wilson (1972), 29 Ohio St.2d 203. When making a determination as to the impartiality of a prospective juror, the United States Supreme Court in Irvin held: To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Spies v. Illinois, 123 U.S. 131; Holt v. United States, 218 U.S. 245; Reynolds v. United States, [98 U.S. 145]. 366 U.S. 717, 723. It has been held that a prospective juror's statement that he was approaching the case with an "open mind," and the judge's finding that the prospective juror was credible, qualify the prospective juror as an impartial juror within the guidelines set -7- forth in Irvin, supra. See State v. Willey (1981), 5 Ohio App.3d 86. -8- C. THE IMPANELING OF THE PROSPECTIVE JUROR DID NOT PREJUDICE APPELLANT'S RIGHT TO A FAIR TRIAL OR RESULT IN A MISCARRIAGE OF JUSTICE. Initially we note defendant-appellant's counsel failed to challenge the prospective juror as to her partiality. Therefore, appellant's claim is deemed waived unless the record demonstrates errors affecting a party's substantial rights; plain error. See State v. Kent (1980), 68 Ohio App.2d 151. The Ohio Supreme Court has held that the plain error doctrine should be applied with the utmost caution, under exceptional circumstances and only to prevent a miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91. In the case sub judice, a prospective juror acknowledged she was the victim of an attempted molestation when she was approximately 12 years old. Since the appellant was indicted for kidnapping a 12 year old girl, the trial court and both parties questioned the prospective juror concerning the incident in an effort to determine whether the prospective juror could remain impartial throughout the proceedings pursuant to R.C. 2945.27. Pertinent portions of the voir dire are as follows: Voir dire examination is as follows: BY THE COURT: Q. Why don't you tell us about yourself? A. My name is Debbie Chudakoff. I'm married and have two daughters, 13 and nine. I'm a general contractor. I build in Solon. -9- I live in Moreland Hills, and I have lived there for nine years. My mother is right now going through a court case. Her stepson had pulled a knife on her. I was -- there was an attempted molestation on myself when I was a child by my parents' heating contractor. I train with my daughters with a martial arts instructor to prevent abductions. Q. I didn't hear the last sentence. A. My daughters, myself and my husband have been working with a martial arts instructor for about three years to train my children to how to avoid abductions. Q. What kind of martial arts? A. Wan jun kyo yook, a sort of street fighting, sort of a kick-boxing, tae kwon do and ju jutsu. Q. How old were you when the attempted molestation took place? A. 12. THE COURT: How old is the alleged victim in this case? MR. BELL: Twelve years old, your Honor. * * * Q. Is that going to pose a problem? A. I don't know. Q. Do you want to talk about this at the sidebar, this issue? Do you mind talking about it openly? A. It's no problem. -10- Q. All right. Why don't you tell us about what happened to you? A. My parents were builders. We had a heating contractor come to the home. He was a --at that time -- I don't know -- he seemed like an old man to me. He was probably in his 40s or 50s. I don't know, you know, from the perspective of a two (sic) year old. Our furnace was giving us problems. I took the man downstairs, and he backed me up to the furnace and began to molest me. I ducked under his arm and ran. My parents' office was in our home, and their secretary was there, and I started screaming and crying. At that point, he was thrown out of the house by the secretary. He never came back and nothing was ever done. Q. No criminal prosecution? A. No. Q. All right. Now, this apparently has had some traumatic effect on your life, though, this event, in the sense that you are taking precautions with your own children? A. I think that started because I'm a general contractor, and I'm on the job site with men all the time alone. Q. Have you had other problems as an adult? A. No, except that I wanted to just protect my children. Q. That's fine. * * * Q. Do you think you could serve as a fair and unbiased juror in this particular case? That's the big question. -11- Would this incident that happened to you when you were 12 affect you? Would you identify such with the 12 year old who may testify here -- I don't know -- that you would identify and just -- A. I would try. Q. You would try to identify -- A. I'll try to be fair. Q. Okay. Now, if it's going to cause a problem to you, either rekindle these events and disturb you, let us know. If you don't think that you can separate yourself from the case and become a neutral, detached juror, put aside your own event completely, let us know. Okay? All right. I'll allow counsel to inquire on that subject as they please. * * * BY MR. BELL: Q. Mrs. Chudakoff, am I pronouncing that correctly? A. Yes. * * * Q. *** The only thing I would like to speak with you about, Mrs. Chudakoff, is, you did describe a situation that occurred to you in the basement, near the furnace, around the age of 12? A. Right. Q. And you did get away; is that correct? A. Right. -12- Q. This person grab you? A. Yes. Q. And did you feel as if you were restrained? A. My parents at the time, like I said, had an office at home, and there was a secretary upstairs, and there was also a housekeeper, and so I had two adult people in the home. Therefore, I didn't feel threatened when I went downstairs strictly to show someone the furnace. I was backed into the corner. Did I feel trapped? Obviously, enough to get scared and run away. Q. Thank you very much. Based upon everything we just discussed, I would like to ask you -- and I would like you to examine your conscience -- do you think that you can wait until all of the evidence is presented to you, all the evidence, listen to what everyone has to say, and the Judge will describe to you the crime that's being alleged here, which is kidnapping, will you be able to listen to the words that come out of the witnesses' mouths and wait until that time before you make any decision on this case? Can you do that? A. I don't know. Q. Okay. We talked about presumption of innocence, about the Constitution. Do you think that that's an important -- A. Absolutely. Q. You do believe that's important? A. Absolutely. -13- Q. If you were on trial, would you like to be presumed innocent? A. Absolutely. Q. Okay. And do you understand that everybody has the right to a trial? Do you understand that? A. Yes. Q. Mr. Hillenbrand over here also has that right. Do you understand that? A. Yes. Q. So as he's sitting here now, he's presumed innocent. Can you afford him that right now? Can you tell me right now if you are thinking that he's innocent and you are presuming that he's innocent? A. Yes. Q. Thank you very much. I pass for cause, your Honor. * * * BY MR. STANARD: Q. Ma'am, we might as well jump right to the heart of the matter. You have had your own particular experience with this sort of thing. You told us that before. Judge McGinty asked you a question that I thought was very insightful, because he said, clearly, this had some traumatic impact on you, ma'am, because now, in your adult life, it has affected the way that you will raise your children. And you clearly feel that way, don't you? You were asked the question before, and I will ask you directly, can you be fair to Mr. Hillenbrand? Can you really presume him innocent? -14- A. I don't know. Q. Do you think the answer is "no," as you look at him? A. Nothing to do with appearance, but -- Q. Okay. A. -- I find this a very difficult case for me in particular, perhaps. Q. Would you like to be a juror in this case? A. No. MR. STANARD: I appreciate your honesty. I certainly would appreciate why you would say that. Does anyone else want to say anything about what I have just asked Juror No. 10? Anybody have any feeling? It's really the time for you to be honest, because if you can't do it, that's fine, there's nothing wrong with that. These are tough on everybody. * * * From a review of the transcript, we cannot say the inclusion of the prospective juror prejudiced appellant. To the contrary, we find the prospective juror was open and honest about her past experience. Furthermore, the transcript establishes the prospective juror understood and appreciated the right to a fair trial and the presumption of innocence. We find not only has appellant failed to demonstrate the trial court abused its discretion, but the impaneling of the juror did not affect appellant's substantial right to a fair trial. -15- For the above-mentioned reasons we further find that the failure of defense counsel to object to the juror's admittance or to challenge did not prejudice appellant. As such, appellant's claim of ineffective assistance of counsel must fail. See Strickland v. Washington (1984), 466 U.S. 391; State v. Bradley (1989), 42 Ohio St.3d 136; Cleveland v. Rodic (July 15, 1993), Cuyahoga App. No. 63138, unreported. Appellant's first and second assignments of error are not well taken. III. THIRD ASSIGNMENT OF ERROR Defendant-appellant's, William Hillenbrand, third assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE APPELLANT/DEFENDANT'S RULE 29 MOTION AS APPLIED TO KIDNAPPING BECAUSE THE STATE FAILED TO PRESENT ANY EVIDENCE THAT THE DEFENDANT INTENDED TO TERRORIZE OR INFLICT SERIOUS PHYSICAL HARM ON THE VICTIM. A. ISSUE RAISED: WHETHER EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT TO SUPPORT EACH ELEMENT OF KIDNAPPING BEYOND A REASONABLE DOUBT Defendant-appellant, William Hillenbrand, argues the trial court erred in denying appellant's motion for acquittal. Specifically, appellant argues the state failed to present evidence that appellant intended to terrorize and/or inflict serious physical harm. Appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR ACQUITTAL -16- Under Crim.R. 29, a trial court "shall not order an entry of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. "A motion for judgment of acquittal under Crim.R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Thus, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. See also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S MOTION FOR ACQUITTAL. -17- Appellant was indicted for kidnapping under R.C. 2905.01(A)(3), which provides in part: (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: * * * (3) To terrorize, or to inflict serious physical harm on the victim or another; After a review of the evidence submitted, we find reasonable minds could come the conclusion that appellant removed and/or restrained the victim for either purpose of instilling terror or inflicting serious physical harm. Again, evidence established the appellant quickly pulled his automobile up next to the victim who was picking up a book marker on the ground. The appellant forcefully grabbed her arm and tried pulling her in through the passenger side window telling her "[y]ou're coming with me." As the victim struggled, her head hit the roof of the automobile a number of times. Furthermore, the victim had numerous bruises on her arm where the appellant grabbed the victim. We find the evidence presented at trial was sufficient to support a finding that each element of the kidnapping offense was proven beyond a reasonable doubt. See State v. Morales (1987), 32 Ohio St.252. Appellant's third assignment of error is not well taken. IV. FOURTH ASSIGNMENT OF ERROR -18- Defendant-appellant's, William Hillenbrand, fourth assignment of error states: THE JURY'S DECISION FINDING THE DEFENDANT GUILTY OF KIDNAPPING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THE STATE FAILED TO PRESENT ANY EVIDENCE THAT THE DEFENDANT INTENDED TO TERRORIZE OR INFLICT SERIOUS PHYSICAL HARM TO THE VICTIM. A. ISSUE RAISED: WHETHER THE GUILTY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the guilty verdict was against the manifest weight of the evidence. Specifically, appellant again argues no evidence was presented establishing the appellant had the purpose of terrorizing and/or inflicting serious physical harm on the alleged victim. Appellant further argues that the jury's verdict was the result of emotional conjecture and not based upon the evidence presented. Appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT In Tibbs v. Florida (1982), 457 U.S. 31, the United States Supreme Court recognized the distinction in standards between claims of "insufficiency of evidence" and "manifest weight of the evidence". Unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. Upon application of the standards established in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set -19- forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing 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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Moreover, it is important to note the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence, we must accord due deference to those determinations made by the trier of fact. C. THE TRIER OF FACT'S DETERMINATION THAT APPELLANT WAS GUILTY OF KIDNAPPING WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Upon review of the record, we find substantial credible evidence was presented supporting appellant's conviction. As such, appellant's conviction was not against the manifest weight of the evidene. Appellant's fourth assignment of error is not well taken. Judgment affirmed. -20- 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. DYKE, J. and NAHRA, J., CONCUR. DAVID T. MATIA 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 .