COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69229 THE STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MARC WINGFIELD : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-322207 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JAMES P. BOYLE, Assistant Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES D. INGALLS 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Marc Wingfield appeals a judgment of the Common Pleas Court, entered pursuant to a jury verdict, finding him guilty of assault and kidnapping. The incidents leading up to Wingfield's arrest and conviction began on June 26, 1994 when Wingfield knocked on Karen Farley's door at 3122 Kensington Avenue in Cleveland Heights asking to use her telephone to make an emergency call. Farley lived on the second floor of a three-unit building, together with Wingfield's mother who lived on the third floor and Ms. Johnnie Burks who lived on the first floor with her daughter, Holly. Wingfield made two telephone calls in Farley's apartment while she studied for midterm exams at Cleveland Marshall Law School in the next room. According to Farley, when Wingfield finished his calls he started a conversation with her, but she asked him to leave. As he began to do so, Wingfield grabbed Farley, covered her mouth so she could not scream, dragged her through her apartment and the two struggled into her bathroom where he began choking her until she hit him with a bathroom scale, and ran for help. Hearing the commotion from the second floor, Ms. Burks testified that she called 9-1-1 for assistance, and Cleveland Heights police officer Peter Reilly arrived in response to her call. Police found Farley upset, her apartment in disarray, and - 3 - they questioned her and learned that Wingfield had attacked her. After further investigation, the police charged Wingfield with aggravated burglary, felonious assault, and kidnapping. At trial the state offered testimony from Farley, Burks, and Officer Peter Reilly and Detective James Gibson, and the defense rested without presenting any testimony. The jury returned verdicts finding Wingfield not guilty of aggravated burglary and felonious assault, but guilty of kidnapping and the lesser included offense of assault. Wingfield now appeals these convictions and assigns two errors for our review. The first assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29(A), OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES CHARGED BEYOND A REASONABLE DOUBT. Wingfield only argues insufficiency of evidence regarding his conviction for kidnapping, not his conviction for assault. He argues that the state failed to prove the elements of kidnapping beyond a reasonable doubt, and urges that the evidence presented at trial demonstrated that Farley had been under stress and, because she had argued with Wingfield over the loudness of his stereo on previous occasions, she held a grudge against him. The state, on the other hand, contends that it produced sufficient evidence to convince a jury of Wingfield's guilt beyond a reasonable doubt. - 4 - The issue, then, presented for our consideration is whether the state presented sufficient evidence to support Wingfield's kidnapping conviction. Commonly, errors confuse the standard for examining sufficiency of the evidence with those concerning manifest weight of the evidence. We must be mindful at the outset that a challenge to the sufficiency of the evidence raises a question of law for the court to decide before the case may be submitted to a jury for consideration. The test for sufficiency of the evidence, as stated in State v. Martin (1983), 20 Ohio App.3d 172, 175, is as follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia, 443 U.S. 307, 319. (Citations omitted.) The test for sufficiency thus involves viewing the probative evidence and inferences therefrom in the light most favorable to the prosecution to find all the essential elements of the offense. As the test itself states, the court may not weigh the evidence to resolve the question of sufficiency. See also, State v. Jenks (1991), 61 Ohio St.3d 259, where at paragraph two of the syllabus, the court held: - 5 - An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction 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. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) With these standards, we next consider the state's burden to prove kidnapping in this case. The elements which the state must prove are that appellant, by force, threat, or deception, restrained Farley of her liberty with a purpose to terrorize her. The record before us reveals that appellant Wingfield gained entrance to Farley's apartment by requesting to use her telephone. She testified that he grabbed her, covered her mouth, dragged her through her apartment, knocked her to the ground and began choking her. We must now consider whether this evidence, if believed by the trier of fact, would convince the average mind of guilt beyond a reasonable doubt. Our duty is to construe this evidence most favorably to the state, and to determine whether the jury in this instance could have found the essential elements of kidnapping proven beyond a reasonable doubt. In our analysis, we are aware that force is defined to include any constraint physically exerted by any means against a person. Clearly, the jury could have found that appellant - 6 - exerted force against Farley in dragging her through her apartment and in choking her in her bathroom. Next, the element of restraint of liberty, which means to limit one's freedom of movement in any fashion for any period of time. Here the record supports the jury's finding on this element. Finally, by choking Farley, the jury could clearly find appellant's intent to terrorize her. Accordingly, we conclude this evidence, if believed, would convince the average mind of the defendant's guilt of kidnapping beyond a reasonable doubt. Therefore, the first assignment of error is overruled. The second assignment of error states: THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Wingfield argues his conviction is against the manifest weight of the evidence for the same reasons argued in the first assignment of error. The state contends the convictions are supported by the evidence. The issue before us concerning this assignment of error is whether the jury verdict is against the manifest weight of the evidence presented for trial in this case. The test for determining whether a verdict is against the manifest weight of the evidence is different from the test for determining the sufficiency of the evidence. The court in State v. Martin, supra, explained this standard of review as follows: - 7 - 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Citations omitted.) In this case, Farley testified about the nature of her attack and identified Wingfield as the assailant. Burks testified about hearing a disturbance coming from Farley's apartment and also witnessed Wingfield leaving the scene. Wingfield did not present any witnesses in his defense. After weighing this evidence, as we are required to do under Martin, we conclude the state presented credible evidence from Farley, Burks, and Officer Reilly and Detective Gibson, not controverted in the record, from which the jury reasonably determined that Wingfield kidnapped Farley and assaulted her. Therefore, we cannot conclude the jury clearly lost its way and created a manifest miscarriage of justice. Accordingly, this assignment of error is overruled. Judgment affirmed. - 8 - 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. SPELLACY, C.J., NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .