COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68388 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : McARTHUR DAVIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 16, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-314668 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: FRANK GASPER, ESQ. BRIAN D. DUNBAR, ESQ. Assistant County Prosecutor The Truman Building, #605 JOHN W. MONROE, ESQ. 1030 Euclid Avenue Assistant County Prosecutor Cleveland, Ohio 44115 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Defendant-appellant, McArthur Davis, appeals a decision from the trial court convicting him of corruption of a minor. Davis assigns the following error for our review: I. WHETHER THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. In May 1994, fourteen-year-old M.T. was playing with two of her friends, N. and T., at a neighborhood playground when she decided to spend the night at their house. When the girls arrived at the house, several people were in the house, including N. and T.'s aunt, Doris Hawkins, and fifty-one year old McArthur Davis, defendant-appellant. Davis was the live-in boyfriend of Hawkins' sister, Jackie. At approximately 1:00 a.m., the girls went to sleep in an upstairs bedroom. The three of them slept side by side on a queen sized mattress that had been placed on the floor. Sometime during the night, Davis awakened M.T. by shaking her head. He then began touching her chest, first through her clothes, then under her clothes. M.T. told Davis to "get off me." He then pulled down her pants and underpants, moved her off the mattress onto the floor, and inserted his penis into her vagina. Afterwards, Davis returned to his room. M.T. went downstairs to the bathroom, and later she returned to bed. M.T. did not tell -3- anyone about the incident. About a month later, Doris Hawkins approached M.T. at a local playground and asked her whether Davis had touched her. M.T. began crying and then told Doris Hawkins about the attack. Doris Hawkins took M.T. to her grandmother's house then to M.T.'s home. Once there, M.T. told her mother about the attack. The police were called, and Davis was arrested. Davis was charged with rape and corruption of a minor. At trial, M.T. testified Davis attacked her and he had often referred to her as his "little girlfriend." During cross-examination, M.T. stated her friends never woke up during the attack. She also admitted walking past several adults on her way to the bathroom but did not tell them about the attack. Doris Hawkins testified when M.T. told her grandmother about the incident, M.T.'s grandmother did not believe her. Hawkins also testified, at the time she confronted M.T., she was angry because she had been hearing rumors that M.T. was "messing around" with Davis and thought that Davis was cheating on her sister, Jackie. M.T.'s mother, Judy T. testified that she heard about the attack when a tearful Doris Hawkins accompanied M.T. to her home. According to Judy T., M.T. appeared "numb" and didn't say anything while Doris Hawkins told her about the attack. She testified M.T. told her about the attack later. and she was "kind of down," "wasn't herself," and was "like she had no feeling or anything." Davis was found not guilty of rape and guilty of corruption of a minor. He was sentenced to one year in prison with credit for 108 days of time already served. This appeal followed. -4- In his sole assignment of error, Davis argues his conviction was against the manifest weight of the evidence presented at trial. In determining whether a verdict is against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of the witnesses in order to determine whether the jury clearly lost its way in resolving the conflicts in the evidence and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172,175. Davis argues M.T.'s testimony was not credible. However, because the trier of fact had the opportunity to listen to the witnesses' testimony and observe their demeanor, we must defer to their judgment. State v. Callihan (1992), 80 Ohio App.3d 184,192. Davis argues it is unreasonable to believe M.T. could have been raped in the same room where her friends slept undisturbed and no one in the house heard the attack. However, M.T. did not claim to have yelled during the attack. She said she only told Davis to "get off of me" in a voice "loud enough for him to hear." It is entirely possible that her friends who were sound asleep would not have been awakened. In addition, although Davis argues in his brief that M.T. claimed to have been raped on the mattress where her friends were sleeping, a review of M.T.'s testimony belies this argument. M.T. testified Davis got her on the floor before assaulting her. She testified she didn't say or do anything during -5- the assault because she was scared. Under the circumstances, the jury was proper in finding her testimony believable. "The choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact." State v. Callihan (1992), 80 Ohio App.3d 184,192. Because we believe the jury reasonably resolved the conflicts in the evidence, we are unable to conclude their verdict was against the manifest weight of the evidence presented at trial. Accordingly, we overrule Davis' assignment of error and affirm his conviction. Judgment affirmed. -6- 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. JOHN T. PATTON, C.J., and DAVID T. MATIA, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- .