COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68676 IN RE: DESHAWN MASSEY, A Minor : JOURNAL ENTRY : and Plaintiff-appellant : OPINION : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 4, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Juvenile Division : Case No. 9405083 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For appellant: JAMES A. DRAPER Cuyahoga County Public Defender VALERIE R. ARBIE, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, OH 44113-1569 For defendant-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GARY DeROCCO, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, OH 44113 TIMOTHY E. McMONAGLE, J.: Appellant DeShawn Massey appeals from the finding of his delinquency of a single count of rape in the court of common pleas, juvenile division. For the reasons stated below, we affirm. On April 21, 1994, upon the complaint of Kennetta Molbey, the defendant, DeShawn Massey, was charged with one count of rape pur- suant to R.C. 2907.02. He was arraigned on June 27, 1994 in common pleas court, juvenile division. Defendant Massey denied the charge. At a hearing held before Referee Yeomans on August 9, 1994, the defendant entered an admission to an amended complaint charging gross sexual imposition, R.C. 2907.05(A)(1). The trial judge vacated the admission on September 13, 1994, and the case was set for adjudication on December 6, 1994 before another juvenile court referee. At the adjudicatory hearing on December 6, 1994, upon the report of the referee, the defendant was adjudged delinquent of a single count of rape. At the disposition hearing held on December 19, 1994 in the juvenile division of common pleas court, the defendant was committed to the institutional care of the Ohio Department of Youth Services for a term of one year to until the time he reaches his twenty-first birthday. Defendant filed a pro se notice of appeal and request for appointment of counsel on March 13, 1995. On March 29, 1995, the - 3 - court appointed the Cuyahoga County Public Defender's Office to represent the defendant, and this appeal was timely filed. Defendant-appellant raises the following sole assignment of error for our review: THE REFEREE'S FINDING THAT DESHAWN MASSEY WAS DELINQUENT OF RAPE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard of review for the issue of whether the verdict was against the manifest weight of the evidence was set forth in State v. Davis (1988), 49 Ohio App.3d 109, at paragraph three of the syllabus: In determining whether the verdict is against the manifest weight of the evidence 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 [trier of fact] clearly lost its way and created such a manifest mis- carriage of justice that the conviction must be reversed and a new trial ordered. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; - 4 - (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App. 3d 10, at the syllabus. At the hearing before the referee, the state presented tes- timony of the victim and of a witness to the incident. On direct examination, the victim, Kennetta Molbey, testified that on the night of the alleged rape, she and the appellant, DeShawn Massey, along with another couple, Crinisha Miller and Eric, went to the house of an acquaintance named Belle. The victim identified the defendant-appellant in the courtroom and testified that the appellant, DeShawn Massey, was not her boyfriend and that she did not know him very well. She then testified as to the events of that evening as follows. The victim testified that they talked for a while and that the appellant said he wanted her to have sex with him and asked her to go up to the attic with him. At first, she refused because it was dark, but the appellant checked the attic and assured her that there was light. She looked and saw there was no light, but he grabbed her and pulled her into the attic. When she and the appellant reached the attic, he pulled her to the back of the attic, where there was some light. The appellant asked her to remove her coat, and she told him, "No." The appellant removed her coat, laid her down and started to unbutton her shirt. She held her shirt so he could not get it unbuttoned and told the appellant - 5 - to stop, but he pinned down her hands and started taking down her pants. She was scared and told him to stop; she was trying to push him away as he raped her. The victim further testified that when she told the appellant that she was going to tell her mother and tell the police, he said, "I might as well beat you up now." As he was raping her, she was trying to push the appellant away and was telling him to stop. Crinisha and Eric came into the attic while appellant was raping her. She said that Crinisha asked the appellant, "How you just gon' take some from her?" The victim testified that she and the appellant eventually left the attic, went to the porch and talked for an hour. The victim told her sister about the rape but did not tell her mother or the police at that time because she was scared. On cross-examination, the victim testified that the reason she and the appellant went up to the attic was to talk. She held the appellant's hand because she could not see. She denied that there was a point where the appellant got off the mat and she told him to come back down there with her. The state then called the witness to the incident, Crinisha Miller. Miller identified the appellant in court. Miller testi- fied that she and her boyfriend Eric, the appellant and the victim all went over to Belle's house. Miller recounted her version of the incident as follows. - 6 - Miller said that when she and Eric went up to the attic, the appellant and the victim were already up there. Miller sat on the mat beside them and, although she could not see the appellant and the victim because it was dark, she heard the victim telling the appellant that she would "tell her mother" and that what he was doing was "rape," and the appellant kept telling the victim to shut up. During the incident, Miller asked the appellant "why he was taking something from her (the victim) when she [didn't] want to give it to [him]?" Miller testified that during all this con- versation, it looked like sexual activity was going on. She saw the victim and appellant leave the attic together, and when she came down from the attic, she saw them sitting on the porch. On cross-examination, Miller testified that she did not help the victim because she was told it was none of her business. On re-direct examination, when questioned as to why she made the comment, "Why are you taking something from her when she doesn't want to give it to you?," Miller testified that she made the comment to the appellant because "she (the victim) did not want to do it. And she kept telling him no." The prosecution rested after presenting the two witnesses. The defense called the appellant, who testified on his own behalf. The appellant testified that on the night of the incident, he was at Belle's house with Kennetta, Eric and Crinisha. The appellant then testified as to his version of what happened, as follows. - 7 - The appellant stated that the four of them were talking and started talking about sex. Appellant suggested that he and the victim go to the attic. He went to the attic first to see if there was any light. He and the victim went upstairs together and went all the way to the back, where the light and a mattress were. He did not pull her into the attic. He took off the victim's coat, lay down on the mat and touched her breast. As he was unbuttoning her shirt, the victim told him that she did not want to do it, so he stopped. When he was walking away, the victim said to come back. He went back and just started having sex. Appellant denied that he removed the victim's pants as he held her hands back; he said that she unzipped her own pants. He denied that the victim was trying to push him off and denied telling the victim to "shut up." Appellant did admit to telling Crinisha to "shut up" but stated that he said that because she said he should not be doing what he was doing. When appellant was asked whether the victim ever told him that she did not want to have sex with him, he testified that the victim told him once, when he touched her breast, that she did not want to have sex with him, and he stopped. He came back because she wanted him to, and they had sex. After they finished having sex, the victim said she was going to tell her mother. Appellant held the victim's hand as they walked out of the attic because it was dark, and he and the victim went out to the porch to talk and had a nice conversation. - 8 - On cross-examination, the appellant admitted that the victim had said that she was going to tell her mother that they had sex, but she said it in a "playing" way. He said that the reason he told Crinisha to "shut up" was because "she didn't know what was going on" and that Crinisha had said that he should not be having sex with the victim. The defense rested its case. The referee determined that the state met its burden of proof beyond a reasonable doubt that a rape did occur and that DeShawn Massey should be adjudged delinquent as charged. Appellant argues that the testimony presented by the state was incredulous, conflicting, fragmented and otherwise so unreliable that no reasonable factfinder should have relied upon it to support a finding of delinquency. We do not agree. Upon review of the record before us, we do not find the tes- timony of the victim or the witness to be incredible. The evi- dence presented was both reliable and certain and neither con- flicting nor fragmentary. The witnesses were not impeached. The evidence presented by the witnesses was consistent. The state was required to prove the elements of the charge of rape beyond a reasonable doubt to find the appellant delinquent of the charge. The elements of rape, R.C. 2907.02(A)(1), are: to "unlaw- fully engage in sexual conduct with another person who was not his - 9 - spouse at the time and to purposely compel the victim to submit to such sexual conduct by force or threat of force." Based upon the record before us, we find the state proved the elements of rape beyond a reasonable doubt. The state presented sufficient competent, credible evidence on each element of the charge of rape so that a reasonable finder of fact could have relied upon the testimony to find that the appellant was delin- quent of the single count of rape. The state proved with compe- tent, credible evidence that sexual conduct took place between the appellant and the victim, forced upon the victim who was not the spouse of the offender, against the victim's expressed desire. Based on the evidence before us, it simply cannot be said that in this case, the trier of fact clearly lost its way and created a manifest miscarriage of justice so that the conviction must be reversed and a new trial ordered. Therefore, the judgment of the trial court is affirmed. - 10 - 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 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. SARA J. HARPER, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .