COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69639 STATE OF OHIO : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : JOHN D. HOUSER : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MAY 30, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-322424. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John Clough, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Thomas M. Horwitz, Esq. 1365 Ethel Avenue Lakewood, OH 44107 -2- DAVID T. MATIA, J.: John D. Houser, defendant-appellant, appeals from his convictions in the Cuyahoga County Court of Common Pleas, Case No. CR-322424, for the offenses of kidnapping and rape. Defendant- appellant assigns seven errors for this court's review. For the following reasons, John Houser's, defendant- appellant's, appeal is not well taken. I. THE FACTS This case arises out of the kidnapping and the rape of Lorraine Green by John Houser, defendant-appellant, on March 7, 1995. Ms. Green, an admitted crack cocaine addict, had been smoking crack cocaine with defendant-appellant and a number of unidentified persons at defendant-appellant's apartment located at 8912 Madison Avenue in Cleveland, Ohio. Ms. Green had been on a self-described crack cocaine binge since sometime in late February, 1995 and had been smoking crack cocaine at defendant-appellant's apartment for a seven to ten day period. On March 6, 1995, Ms. Green testified that she was at John Houser's, defendant-appellant's, apartment smoking crack cocaine. At this time, defendant-appellant allegedly stole $20 from Ms. Green's purse after forcing her against a wall. Nothing further happened that day. On March 7, 1995, Ms. Green returned to John Houser's, defendant-appellant's, apartment to smoke more crack cocaine. That evening, Ms. Green left the apartment and went across the street to use the pay phone to call her mother so that she could return home. -3- At this point, defendant-appellant left the apartment, crossed the street, grabbed Ms. Green and forced her to return to the apartment, dragging Ms. Green up the stairs. Once in the apartment, John Houser, defendant-appellant, threatened Ms. Green with a baseball bat, cut Ms. Green's hand with a razor blade and raped her repeatedly for approximately one-half hour. Ms. Green was only allowed to leave defendant-appellant's apartment after she stated that she was going out to get more crack cocaine. Ms. Green proceeded to the apartment of an acquaintance known only as Donna. At the apartment, Ms. Green bathed, washed her clothes and smoked more crack cocaine. On March 9, 1995, Ms. Green was taken by her boyfriend to Lutheran Medical Center for treatment. The Cleveland Police Department was notified of the crime at this time. On April 20, 1995, John Houser, defendant-appellant, was indicted by the Cuyahoga County Grand Jury for one court of kidnapping, in violation of R.C. 2905.01, four counts of rape, in violation of R.C. 2907.02 and one count of robbery in violation of R.C. 2911.02. Defendant-appellant entered a plea of not guilty to the indictment. On August 30, 1995, a jury trial was held resulting in John Houser's, defendant-appellant's, conviction for kidnapping and three counts of rape. Defendant-appellant was found not guilty of robbery and one count of rape. The trial court sentenced -4- defendant-appellant to concurrent ten to twenty-five year terms on each count. On October 5, 1995, John Houser, defendant-appellant, filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR John Houser's, defendant-appellant's, first assignment of error states: THE COURT VIOLATED DEFENDANT'S CONSTITUTIONAL GUARANTEES AGAINST DOUBLE JEOPARDY WHEN IT CONVICTED DEFENDANT-APPELLANT OF KIDNAPPING, WHICH WAS AN ALLIED OFFENSE OF SIMILAR IMPORT TO RAPE. A. THE ISSUES RAISED: ALLIED OFFENSES OF SIMILAR IMPORT. Defendant-appellant argues that, under the factual circumstances of this case, the offenses of kidnapping and rape were allied offenses of similar import. Specifically, defendant- appellant maintains that his sentence for the two offenses violates defendant-appellant's right to be free from double jeopardy. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW. R.C. 2941.25, which deals with issues of multiple counts and allied offenses of similar import, states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. -5- (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. Allied offenses of similar import occur when the offenses and their elements correspond to such a degree that the commission of one offense results in the commission of the other; the state relies on the same conduct to support both offenses; and the commission of both offenses is motivated by the same animus or purpose. State v. Souchey (June 9, 1994), Cuyahoga App. No. 62797, unreported (citations omitted). In State v. Logan (1979), 60 Ohio St.3d 126, the Ohio Supreme Court set forth guidelines in order to determine whether kidnapping and rape constitute allied offenses of similar import. The Supreme Court stated: (a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions. -6- Id. at syllabus. The main issue to determine whether the kidnapping was committed with a separate animus is whether the restraint of the victim is merely incidental to the rape or significantly independent of the rape. Logan, supra at 135. Factors which should be considered include: the duration of the restraint; distance of asportation; and the amount of force used and injuries caused by restraint. State v. Brown (1984), 12 Ohio St.3d 147, 151; State v. Harry (1987), 37 Ohio App.3d 3, 9; State v. Harris (Sept. 29, 1994), Cuyahoga App. No. 65681, unreported. Absent plain error, a defendant's failure to raise the issue of allied offenses of similar import at the time of his conviction or sentencing constitutes a waiver of the claimed error on appeal. State v. Comen (1990), 50 Ohio St.3d 202, 211; State v. Williams (Dec. 17, 1992), Cuyahoga App. No. 61262, unreported. C. KIDNAPPING AND RAPE NOT ALLIED OFFENSES OF SIMILAR IMPORT. Under the facts of the instant case, the offenses of kidnapping and rape were not allied offenses of similar import since defendant-appellant exhibited a separate animus as to each offense. A review of the record demonstrates that each of the rape offenses was committed after Ms. Green had been forcibly abducted and transported from a public telephone, across Madison Avenue and up a flight of stairs into defendant-appellant's apartment. Clearly, the violence used during the restraint of -7- Ms. Green was separate and distinct from the violent actions associated with the actual rapes. State v. Mitchell (1989), 60 Ohio App.3d 106; State v. Moore (1983), 13 Ohio App.3d 226. For the foregoing reasons, this court finds that the asportation of Ms. Green was prolonged, substantial and independent, subjecting Ms. Green to increased risks of harm separate from those associated with the rapes. Accordingly, the evidence in this case was sufficient to allow the trial court to sentence defendant-appellant separately on each count of rape and the kidnapping offense. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR John Houser's, defendant-appellant's, second assignment of error states: THE STATE FAILED TO PRODUCE A DULY REQUESTED BILL OF PARTICULARS AND THEREBY VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO BE INFORMED OF THE CHARGES AGAINST HIM AND PREJUDICED HIS PRESENTATION OF A DEFENSE. A. THE ISSUE RAISED: BILL OF PARTICULARS. Defendant-appellant argues, through his second assignment of error, that the state failed to provide a properly requested bill of particulars pursuant to Crim.R. 7 and 16. It is defendant- appellant's position that this failure prevented him from preparing and presenting an adequate defense to the charges, particularly the kidnapping charge. -8- Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW. Crim.. 7(E), which provides for a request for a bill of particulars, states: (E) Bill of particulars. When the defendant makes a written request within twenty-one days after arraignment but not later than seven days before trial, or upon court order, the prosecuting attorney shall furnish the defendant with a bill of particulars setting up specifically the nature of the offense charge and of the conduct of the defendant alleged to constitute the offense. A bill of particulars may be amended at any time subject to such conditions as justice requires. A criminal defendant is generally not prejudiced by the state's failure to provide a bill of particulars where the underlying indictment clearly identifies the criminal statute that a defendant is being charged with violating, the exact time frame during which the crimes occurred and the county or location where the alleged crimes took place. State v. Brown (1993), 90 Ohio App.3d 674, 682. In addition, it is well established that a defendant waives any claim of error concerning his failure to receive a bill of particulars by proceeding to trial without said bill of particulars or a request for a continuance. State v. DePaul (1971), 25 Ohio App.2d 39; State v. Haffey (Sept. 2, 1993), Cuyahoga App. No. 63576, unreported; State v. Sims (Oct. 19, 19949), Lorain App. No. 94CA005797, unreported. -9- C. ANY CLAIMED ERROR RELATING TO THE BILL OF PARTICULARS WAS WAIVED. In the case sub judice, a review of the record clearly demonstrates that defendant-appellant proceeded to trial without objecting to the state's failure to provide a bill of particulars. Accordingly, any alleged error arising out of the state's failure is waived. Even if defendant-appellant had not waived the alleged error, defense counsel's subsequent statements made during opening argument, cross-examination of the victim and closing argument unambiguously demonstrate that defendant-appellant was fully informed of the charges for which he was indicted at all times during the proceedings. Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR John Houser's, defendant-appellant's, third assignment of error states: THE COURT ERRED WHEN IT PERMITTED THE JURY TO CONSIDER IRRELEVANT AND UNFAIRLY PREJUDICIAL TESTIMONY. A. THE ISSUE RAISED: IRRELEVANT AND PREJUDICIAL TESTIMONY. Defendant-appellant maintains that the trial court erred in allowing testimony from the victim regarding events which occurred one day after the kidnapping and rapes. Specifically, defendant-appellant objects to Ms. Green's testimony that -10- defendant-appellant referred to her as his "ho" and threatened to kill her if she spent any of "his" money. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW. Evid.R. 402, which deals with the admissibility of evidence, states: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible. Evid.R. 403, which deals with the exclusion of relevant evidence, states: (A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the jury. (B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence. The Ohio Supreme Court has held that a trial court possesses broad discretion as to the admissibility or exclusion of evidence, and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, a reviewing court will not interfere. State v. Maurer (1984), 15 Ohio St.3d -11- 239, 265; State v. Blair (1990), 70 Ohio App.3d 774, 780-81. An abuse of discretion is more than an error of law or judgment, it implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. C. EVIDENCE WAS NOT IRRELEVANT OR PREJUDICIAL. Initially, it must be observed that defendant-appellant did not advance an objection to this testimony in the trial court and has therefore waived any error for the purposes of appellate review. State v. Brown (1988), 38 Ohio St.3d 305. However, even if defendant-appellant had properly objected to Ms. Green's testimony, a review of the record demonstrates clearly that the testimony in question was not irrelevant or unfairly prejudicial. Given the violent nature of the offenses for which defendant- appellant was convicted, testimony relating to defendant- appellant's attitude toward Ms. Green one day after the incidents occurred was both relevant to the offenses and admissible as to defendant-appellant's state of mind. Accordingly, the trial court did not abuse its discretion in allowing Ms. Green's testimony into evidence. Defendant-appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR John Houser's, defendant-appellant's, fourth assignment of error states: -12- THE STATE'S PROSECUTORIAL MISCONDUCT DENIED DEFENDANT A FAIR TRIAL AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS. A. THE ISSUE RAISED: PROSECUTORIAL MISCONDUCT. Defendant-appellant argues, through his fourth assignment of error, that prosecutorial misconduct prevented him from receiving a fair trial. Specifically, defendant-appellant maintains that, in opening statements, the prosecuting attorney erroneously claimed that the evidence would demonstrate defendant-appellant had anally raped Ms. Green. It is defendant-appellant's position that this allegation was unsupported by the evidence and highly prejudicial given the heinous and upsetting nature of the alleged crime. Defendant-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW FOR PROSECUTORIAL MISCONDUCT. In State v. Mann (1993), 93 Ohio App.3d 301, this court citing State v. Hill (1977), 52 Ohio App.2d 393, set forth four elements to be considered in determining whether the prosecutor's statements amount to misconduct: (1) the nature of the remarks; (2) whether an objection was made by opposing counsel; (3) whether corrective instructions were given; and (4) the strength of the evidence against the defendant. Another factor to be considered in determining whether remarks constitute misconduct is whether the remarks prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14. -13- In general terms, the conduct of a prosecuting attorney during trial cannot be made a basis for error on appeal unless the conduct deprives the defendant of a fair trial. State v. Maurer (1984), 15 Ohio St.3d 239, 266; State v. Vrana (1988), 47 Ohio App.3d 145. In addition, since defendant-appellant failed to object to the prosecutor's allegedly improper comments at trial, pursuant to Crim.R. 52(B), the comments must rise to the level of plain error affecting the substantial rights of defendant- appellant before this court can take notice of the error. Under a plain error analysis, reversal of a conviction is appropriate only if it can be said that, but for the alleged error, the result of the trial would clearly have been different. State v. Kent (1980), 68 Ohio App.2d 151. C. DEFENDANT-APPELLANT WAS NOT DENIED A FAIR TRIAL. Notwithstanding defendant-appellant's contention, this court does not feel that the statements made by the prosecuting attorney during opening statements regarding the possible anal rape of the victim can be characterized as misconduct which prejudicially affected substantial rights of defendant-appellant thus depriving him of a fair trial. A review of the victim's testimony demonstrates that evidence was presented concerning the possibility of an anal rape. (Tr. pp. 93-96.) This fact, combined with the trial court's instruction to the jury that comments of counsel do not constitute evidence, demonstrates that defendant-appellant was not unfairly prejudiced by the -14- prosecuting attorney's comments nor did a manifest miscarriage of justice occur. State v. Jenks (1991), 61 Ohio St.3d 259, 281. Defendant-appellant's fourth assignment of error is not well taken. VI. FIFTH ASSIGNMENT OF ERROR John Houser's, defendant-appellant's, fifth assignment of error states: DEFENDANT WAS DENIED A FAIR TRIAL AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL. A. THE ISSUE RAISED: INEFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant argues that he was denied effective assistance of counsel since his trial counsel failed to object to the convictions on allied offenses of similar import, failed to move to compel the state to produce a bill of particulars prior to trial, failed to object to irrelevant and prejudicial testimony, failed to object to alleged prosecutorial misconduct and failed to properly impeach the credibility of the victim based upon her crack cocaine habit. Defendant-appellant's fifth assignment of error is not well taken. B. STANDARD OF REVIEW FOR INEFFECTIVE ASSISTANCE OF COUNSEL. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the -15- performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: "When considering an allegation of ineffective assistance of counsel, a two- step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness." State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the -16- error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981)." Strickland, supra, at 691. To warrant reversal, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. *** Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141. C. DEFENDANT-APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant raises five separate grounds upon which he maintains he was denied effective assistance of counsel. The first four grounds: failure to object to the convictions on allied offenses of similar import; failure to move to compel the state to produce a bill of particulars prior to trial; failure to object to irrelevant and prejudicial testimony and failure to object to alleged prosecutorial misconduct have already been raised, addressed and found to be without merit by this court its discussion regarding defendant-appellant's first four assignments of error. Accordingly, this court will not further address these grounds. -17- Defendant-appellant's fifth and final ground upon which he bases his claim of ineffective assistance of counsel is that defense counsel failed to properly impeach the victim's credibility based upon her crack cocaine habit and the effects of crack cocaine on an individual's memory and perceptive abilities. A review of the record fails to support defendant-appellant's contention. The trial transcript demonstrates that defense counsel vigorously attacked the victim's credibility throughout cross-examination eliciting such information as the victim was using her children's ADC (aid to dependent children) money to purchase crack cocaine, that she danced at the strip club in order to earn money to purchase crack cocaine and that even after the kidnapping and rapes, the victim was more concerned with obtaining crack cocaine to support her habit than seeking medical attention. For the foregoing reasons, this court finds that defense counsel's performance was not seriously flawed and deficient nor did it result in prejudice to defendant-appellant. Defense counsel clearly attempted to bring into question the credibility of the victim, questioned the lack of physical evidence and discussed the lack of medical proof contained in the hospital records. Defendant-appellant's fifth assignment of error is not well taken. VII. SIXTH ASSIGNMENT OF ERROR -18- John Houser's, defendant-appellant's, sixth assignment of error states: THE JURY VERDICTS WERE INCONSISTENT WITH THE EVIDENCE. A. THE ISSUE RAISED: INCONSISTENT VERDICTS. Defendant-appellant argues, through his sixth assignment of error, that the jury's verdicts with respect to the three counts of rape for which he was convicted were inconsistent with the evidence presented by the state. In effect, defendant-appellant argues that his acquittal as to one count of rape should preclude his conviction on the three remaining counts. Defendant-appellant's sixth assignment of error is not well taken. B. STANDARD OF REVIEW FOR INCONSISTENT VERDICTS. Under Ohio law, the several counts of an indictment containing more than one count are not interdependent, and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. State v. Brown (1984), 12 Ohio St.3d 147; State v. Adams (1978), 53 Ohio St.2d 223; State v. Harrell (June 4, 1992), Cuyahoga App. No. 60656, unreported. C. JURY'S VERDICTS WERE NOT INCONSISTENT. In the case sub judice, each count of rape represented a separate act. Therefore, this court is not dealing with a situation of an inconsistent response to the same count. State -19- v. Hunsaker (1992), 78 Ohio App.3d 251, 260; State v. Eppinger (Sept. 20, 1990), Cuyahoga App. No. 57275, unreported. Since each rape count required proof of a separate act, the verdicts returned by the jury were not inconsistent. Defendant-appellant's sixth assignment of error is not well taken. VIII. SEVENTH ASSIGNMENT OF ERROR John Houser's, defendant-appellant's, seventh and final assignment of error states: THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED; MANIFEST WEIGHT. Defendant-appellant argues, through his seventh and final assignment of error, that the verdicts were against the manifest weight of the evidence. Specifically, defendant-appellant maintains that his convictions were based upon the testimony of an admitted crack cocaine addict who testified that she was under the influence of crack cocaine at the time of the attack. Defendant-appellant argues further that no physical or scientific evidence was offered by the state to substantiate the victim's testimony. Defendant-appellant's seventh assignment of error is not well taken. B. STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: -20- 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 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; -21- 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. C. THE JURY VERDICTS WERE NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Herein, evidence was presented by way of victim testimony, photographs and medical records in an attempt to establish the elements of the offenses of kidnapping and rape. 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. The rape statute, R.C. 2907.04(A)(1), states in pertinent part, that no person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. In the present case, the victim testified she was subjected to forced vaginal intercourse three to four times in a one-half hour -22- period. The victim testified further that she was forced into the apartment against her will, cut with a razor blade and threatened with a baseball bat. Accordingly, a review of the entire record demonstrates that the jury did not lose its way and create a manifest miscarriage of justice by finding defendant- appellant guilty of one count of kidnapping and three counts of rape. Defendant-appellant's seventh and final assignment of error is not well taken. Judgment of the trial court is affirmed. -23- 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. JAMES D. SWEENEY, P.J. and DIANE KARPINSKI, J., CONCUR. DAVID T. MATIA 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 .