COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70467 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION MICHAEL EDWARDS : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-330054 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES DRAPER, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender RICHARD J. BOMBIK, ESQ. JEAN M. GALLAGHER, ESQ. Assistant County Prosecutor Assistant Public Defender The Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 MICHAEL EDWARDS, pro se No. A 320-963 Madison Correctional P.O. Box 740 London, Ohio 43140 - 2 - KARPINSKI, J.: Defendant-appellant, Michael Edwards, appeals from the judgment of the trial court wherein a jury found defendant guilty of one count of rape, one count of kidnapping, and one count of aggravated robbery. On appeal, defendant raises six assignments of error which raise the issues of (1) a speedy trial, (2) a defendant's right to a police report, (3) a witness omitted from the witness list, (4) the sufficiency of the evidence, (5) the weight of the evidence, and (6) whether the indictment was defective. For the reasons that follow, we find none of these arguments warrant a reversal. The charges in this case stem from the alleged kidnapping and rape of Tonie Logan on September 1, 1995. Ms. Logan testified as follows. On the night in question, she stayed at a friend's house until 2:30 a.m., after which she left to spend the night at her sister's house as she had previously arranged. While walking along East 30th street to catch the bus, a gray car repeatedly drove past. The driver of a hatchback pulled the car next to her and asked whether she needed a ride. She said no because she was going to catch the bus. The car drove away but came back and the driver stopped the car, got out, brandished a knife, grabbed Ms. Logan, and forced her into the car. The man drove around for thirty minutes with the knife out. At one point he stated that he was going to take her to California. He then stopped the car on a side street, ordered her to take her clothes - 3 - off, and forced her to have sexual intercourse with him. Afterwards, the man told her to put her clothes back on and empty her pockets. She removed seventy dollars from her pocket. He took the money, her door key, and some mail from her purse. He then drove the car down some more streets. At one point they were stopped at a traffic light and the man informed her that if she screamed he would hurt her. He then drove down another back street and he told her to open the door. After she opened the door, he pushed her out of the car and drove away. Before pushing her out, he told her that if she went to the police he and his "boys" were going to come to her house. After being pushed out of the car, she walked down the street to a restaurant and found a man who was a friend of her grandmother. She told him that she had just been raped and robbed at knifepoint. This person then drove Ms. Logan to her sister's house around 4:45 a.m. Her mother took her home and instructed Logan to wash, including her vagina. Later in the morning she initially called the East Cleveland Police Department, who told her to call the Cleveland Police Department because the event she described happened in Cleveland. They also suggested she go to the hospital. She was afraid, however, to contact the Cleveland Police Department or fill out a police report because of defendant's threats and because he had her key and knew her address from the mail he took. Almost two months later, Ms. Logan went to a blood bank with her friend. While in the blood bank, she noticed the man who had - 4 - raped her sitting by a desk staring at her. She immediately went outside to the pay phone. After unsuccessfully trying to call her mother, she called the police and told them the man who raped and robbed her was in the blood bank. She stayed by the pay phone until the police arrived fifteen minutes later. The police arrived and arrested defendant as he left. On cross-examination, defense counsel showed Ms. Logan a tatoo on defendant's left arm and asked her whether she remembered it; she did not. She also did not tell the police about a scar on the bridge of defendant's nose, although she told the investigator she noticed gray in part of his facial hair. Defense counsel then cross-examined Ms. Logan on the police report, which said her mother took her to Mt. Sinai, where a "rape kit" was performed. She explained that the report was wrong because she said her mother was merely going to take her to the hospital and she did not know what a "rape kit" was. (Tr. 403.) During redirect, Ms. Logan explained that she was tested for disease, but the court made it clear to the jury that there was no medical evidence of rape. (Tr. 419.) Logan further clarified that on the night of the rape, defendant had a mustache and beard circling his mouth around his chin, but his appearance differed at trial because his facial hair at trial did not connect under his chin. Ms. Logan's mother, Queen Logan, testified that on the morning of September 2, 1995, she received a call from her other - 5 - daughter, Akeesha, that Tonie Logan was at Akeesha's house. Queen Logan went to Akeesha's house and found Tonie to be frightened, shaken, and crying. She remembered a discussion with a police investigator where Tonie pointed out that the attacker had some gray in his facial hair. Akeesha Carter testified that her sister originally called and told her that she would be coming over around 3:00 or 3:30 a.m. At 4:45 a.m. Tonie Logan arrived crying and banging on the door. Nicole Fussell took the stand and stated that she was with Tonie Logan at the blood bank. Fussell noticed that a man kept walking in front of them as if he were looking for somebody. When Fussell asked Tonie Logan whether she knew the man who was staring at her, Logan began to shake and appeared scared. After Logan told Fussell why she was upset, the two of them went to a pay phone to call the police. The police then arrived and arrested defendant. David Bogdas testified for the limited purpose of stating that as an official from the State of Ohio, he was aware that defendant was a resident of California between January 1, 1995 and January 14, 1995. Patricia Coleman, a detective with the Sex Crimes Unit, testified that as a part of her investigation, she interviewed defendant and he could not remember who he was with or what he did on September 2, 1995. - 6 - Beverly Hinton, testifying for the defense, stated that on a night in September, 1995 defendant gave her a ride home from Dreema Prince's house at about 3:30 or 3:45 a.m. She could not remember the exact date or the type of car. She also admitted on cross-examination that she was inebriated. Dreema Prince testified that she lived with defendant's brother. On September 1, 1995, she held a party which defendant and Ms. Hinton attended. She stated that defendant drove himself, his brother, and Ms. Hinton home around 4:00 or 4:30 a.m. in a black or gray Peugeot that was not a hatchback. Thomas Franklin, defendant's brother, testified that defendant drove him from the party to their mother's house around 4:15 or 4:20 a.m. After he was dropped off, defendant left with Ms. Hinton around 4:30 a.m. He stated that defendant had a goatee in the past, but, at the time in question, he had only a low-cut mustache with no gray hair and no hair on his chin. Defendant's mother, Velma Edwards, testified that defendant came to her house around 4:00 or 4:30 a.m. on September 1, 1995 in a car that was not a hatchback. He did not have a mustache, but she added if he did have any hair on his chin it might be because he had not shaved. The last witness for the defense was Ronald Turner, a former police officer appointed by the court to investigate this case. As part of his investigation, he interviewed the witnesses, including Ms. Logan. From his discussions he drew a diagram - 7 - concerning a description of the attacker with a low mustache and without a beard. After the defense rested, the state submitted a photograph of defendant on the day he was arrested. (Tr. 841, 842.) This photo depicted defendant with facial hair circling his mouth. The jury found defendant guilty on all counts as charged in the indictment. Defendant timely appeals and files six assignments of error. Four of the assignments were filed by defendant, pro se; two assignments were filed by appointed counsel. Defendant's first pro se assignment of error states as follows: I. APPELLANT-DEFENDANT WAS DENIED THE RIGHT OF A SPEEDY TRIAL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND R.C. 2945.71(C)(2) AND (E). In this assignment, defendant asserts he was denied his right to a speedy trial pursuant to R.C. 2945.71. This statute requires that a person against whom a felony charge is pending be brought to trial within 270 days after his or her arrest. To compute time within which an accused must be brought to trial, each day during which the accused is held in jail in lieu of bail on the pending charges is counted as three days. R.C. 2945.71(E); State v. Howard (Mar. 4, 1994), Scioto App. No. 93CA2136, unreported; State v. MacDonald (1976), 48 Ohio St.2d 66. To state it another way, "a felony defendant in Ohio must be tried within ninety days if incarcerated on the pending charge or within two hundred seventy days if on bail." State v. Coleman (1989), 45 Ohio St.3d 298. The ninety-day period of R.C. 2945.71 - 8 - does not apply when a defendant is being held on multiple charges pending separate trials. Coleman, supra. In State v. Martin (1978), 56 Ohio St.2d 207, the Ohio Supreme Court held that the triple count provision of R.C. 2945.79(D) is inapplicable when the accused is held in jail on a parole holder. At the hearing on the motion to suppress, Larry Sullin, a parole officer, testified that defendant was on parole from the State of California on assault and kidnapping charges. Because he was held in jail pursuant to a valid parole holder, defendant was not entitled to take advantage of the triple-count provision found in R.C. 2945.79(D). Therefore, defendant was tried within the requisite 270 days. This assignment of error is overruled. Defendant's second pro se assignment of error states as follows: II. APPELLANT MICHAEL EDWARDS WAS DENIED DUE PROCESS AND A FAIR TRIAL UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND CRIMINAL RULE 16(B)(1)(G) WHEN THE TRIAL JUDGE DENIED DEFENSE COUNSEL'S REQUEST FOR AN IN CAMERA INSPECTION OF A WITNESS' WRITTEN STATEMENT. In this assignment, defendant argues he was denied due process of law when defense counsel was not permitted to participate in the in camera inspection of Officer McCaffery's police report. Under Crim.R. 16(B)(1)(g), a witness's prior statement is discoverable after the person making the statement has testified only after an in camera inspection by the court reveals inconsistencies exist between the witness's trial testimony and - 9 - prior statement. Then the statement can be used on cross- examination. Pursuant to this rule, the party seeking discovery of the prior statement must request an in camera inspection prior to completion of the cross-examination. State v. Jenkins (1984), 15 Ohio St.3d 164. Finally, the trial court's determination as to whether any inconsistency exists is reviewed under the abuse of discretion standard. State v. Clay (1972), 29 Ohio App.2d 206, 212. In State v. Daniels (1982), 1 Ohio St.3d 69, the Court held that the defense attorney should be present and allowed to participate in the in camera inspection. Even though the trial court erred by not allowing the defense attorney to participate in the in camera inspection, a case will not be reversed if the reviewing court finds no inconsistencies between the testimony and the written report. Daniels, supra, fn. 3; State v. Wirtz (July 29, 1993), Cuyahoga App. No. 62751, unreported; State v. Duncan (April 14, 1994), Franklin App. No. 93 APA11-1524, unreported; State v. Jackson (Sept. 17, 1988), Cuyahoga App. No. 52488, unreported. In the case at bar, the trial court did not abuse its discretion in finding that there were no inconsistencies between the police report and the officer's testimony. We agree with the trial court's characterization of the statement as remarkably consistent with the testimony. (Tr. 532.) Both the seven pages of direct testimony and the police report are consistent - 10 - concerning the circumstances of defendant's arrest at the blood 1 bank. Accordingly, this assignment is overruled. III. TRIAL COURT ERRED BY ADMITTING THE TESTIMONY OF A SURPRISE WITNESS. CRIM. R. 16. In this assignment, defendant argues that the trial court committed prejudicial error by allowing the testimony of a David Bogdas. This court has recently summarized the law regarding a trial court's decision to allow a "surprise" witness: The purpose of discovery rules is to protect against the surprise testimony of an undisclosed witness to the prejudice of the accused. See State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026; Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 511 N.E.2d 1138. In the event the rules of discovery are violated, Crim.R. 16(E)(3) grants the trial court discretion to impose whatever sanction on the noncomplying party it deems just under the circumstances. State v. Adkins (1992), 80 Ohio App.3d 211, 608 N.E.2d 1152; State v. Wiles (1991), 59 Ohio St.3d 71, 571 N.E.2d 97. An abuse of discretion implies more than an error of law or judgment; it implies the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140. The Ohio Supreme Court has held a trial court does not abuse its discretion by permitting the testimony of an undisclosed witness if it can be shown that the failure to provide discovery was not willful, that 1 Moreover, defendant has failed to specify how the statement was inconsistent with the testimony. After denying defense counsel's request to use the report on cross-examination, the trial court stated, "I'm, going to place it under seal so that the reviewing court, if it decides to do so, if it comes to that, that is to say if there is a conviction and then an appeal, the Court of Appeals can review this and see if there would be any inconsistencies in any event. * * * I submit a copy of this report to the court reporter." (Tr. 532.) Upon discovering that the report was not a part of the record, appellate counsel for defendant obtained the report from the court reporter and moved to supplement the record with the report. Because the report was attached to defendant's motion, defendant, therefore, had the opportunity to review the report and argue on appeal any inconsistencies that could have been revealed at trial. - 11 - foreknowledge of the statement would not have benefited the defendant in the preparation of the defense, and that the defendant was not prejudiced by the admission of the evidence. See State v. Heinish, supra; State v. Parson (1983), 6 Ohio St.3d 442, 6 OBR 485, 453 N.E.2d 689. State v. Czajka (1995), 101 Ohio App.3d 564, 572. In the case at bar, Bogdas testified for the limited purpose of establishing that defendant had previously lived in California. This testimony tended to corroborate the victim's testimony that defendant threatened to take her to California. When Bogdas took the stand, moreover, defense counsel did not object that Bogdas was not on a witness list. The trial court had the discretion to determine the sanction for failing to disclose a witness. In fact, the court sharply restricted the direct examination of Bogdas, who did not divulge to the jury the reason he knew that defendant had been in California was that Bogdas was a parole officer and defendant was on parole from kidnapping and assault charges in California. Finally, defendant has not stated how the testimony prejudiced him or how foreknowledge would have affected the preparation of this defense. Thus defendant has not proven any abuse of discretion. Accordingly, this assignment is overruled. Defendant's fourth pro se assignment of error states as follows: IV. THE EVIDENCE ADDUCED AT TRIAL WAS INSUFFICIENT TO SUSTAIN THE CONVICTION IN THAT THE STATE DID NOT PROVE ALL THE ESSENTIAL ELEMENTS OF THE CRIME CHARGED; TO- WIT, THAT THE DEFENDANT-APPELLANT WAS NOT THE SPOUSE OF THE ALLEGED VICTIM. R.C. 2907.02(B). - 12 - In reviewing the sufficiency of the evidence, the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, the issue is presented to the jury." State v. Bridgeman (1978), 55 Ohio St.2d 261. When reasonable minds cannot convict, a Crim.R. 29(A) motion must be granted, the charges should be dismissed, and the case should not go to the jury. Id. The substance of defendant's sufficiency argument is that there was insufficient evidence to convict him of rape because the state did not set forth any evidence that the victim was not his wife. This assignment lacks merit. R.C. 2907.02 defines the crime of rape and states as follows: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: * * * (2) 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. The indictment, which charged defendant with rape, alleged that defendant, "unlawfully engaged in sexual conduct with Tonie Logan by purposely compelling her to submit by the use of force or threat of force." Thus defendant was charged under R.C. - 13 - 2907.02(A)(2), which does not require the state to establish that the offender was not the spouse of the victim. Under R.C. 2907.02(A)(2), the marital status of the victim is irrelevant. Accordingly, this assignment is overruled. Defendant's first assignment of error filed by appointed counsel states as follows: I. THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Defendant argues that his conviction is against the manifest weight of the evidence because of inconsistencies in the victim's testimony. The standard for evaluating claims that a conviction is against the manifest weight of the evidence has been summarized as follows: 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 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. State v. Martin (1983), 20 Ohio App.3d 172, 175. In this case, the record supports the conclusion that the jury did not lose its way and create a manifest miscarriage of justice. The jury heard a detailed account from the victim of how the defendant raped, kidnapped, and robbed her. Because the trier of fact is in the best position to evaluate the victim's testimony, any inconsistencies in her testimony will not - 14 - necessarily warrant a reversal on the basis of manifest weight on appeal. State v. Davis (1991), 62 Ohio St.3d 326, 344-345. The defense notes the contradictory details in the victim's account. The police report states she said she went to Mount Sinai Hospital and was tested for rape. She also claimed that she was forced to perform oral sex. At trial, she contradicted these statements, although she explained she was tested for disease at a medical clinic. The defense also observed that although she claimed she could see the defendant's face and arms, she did not see his name tattooed on his arm and maintained he had a beard, which several witnesses denied. These are inconsistencies that a jury would have to consider in determining credibility. However, the jury could also consider that the defendant's alibi rested entirely upon the testimony of relatives, whose bias the jury would evaluate. So too could a jury reasonably decide the alleged gray facial hair Logan observed could have been shaved off. Moreover, the defense never articulated any motive that would explain why she would invent a rape to blame a man she had never seen before. That defendant had previously resided in California was a detail, even if only circumstantial, that a jury could reasonably rely upon to corroborate the victim's claim that defendant threatened to abduct her to California. This detail, moreover, could reasonably persuade the jury to believe the victim's version over defendant's. Accordingly, this assignment is overruled. - 15 - Defendant's second assignment of error filed by appointed counsel as amended states as follows: II. MR. EDWARDS WAS DENIED DUE PROCESS, IMPROPERLY CONVICTED WITHOUT INDICTMENT AND SENTENCED TO A TERM THAT EXCEEDED THE MAXIMUM ALLOWED WHEN HE WAS SENTENCED TO TEN TO TWENTY-FIVE YEARS (A TERM FOR AN AGGRAVATED FELONY OF THE FIRST DEGREE) DESPITE THE FACT THAT THE INDICTMENT DID NOT STATE THAT HE HAD FAILED TO RELEASE THE VICTIM IN A SAFE PLACE UNHARMED. In this assignment, defendant argues that his sentence for kidnapping should be reduced from a first degree felony to a second degree felony because the indictment did not state the defendant failed to release the victim in a safe place unharmed. R.C. 2905.01 (C) states as follows: (C) Whoever violates this section is guilty of kidnapping, an aggravated felony of the first degree. If the offender releases the victim in a safe place unharmed, kidnapping is an aggravated felony of the second degree. The indictment in the case at bar did not mention anything about whether the victim was returned in a safe place unharmed. Defendant argues, therefore, that the indictment failed to put defendant sufficiently on notice. This argument fails. First, it must be pointed out that the trial court instructed the jury as follows: If your verdict as to the defendant is guilty of kidnapping, you shall continue your deliberations to determine whether Tonie Logan was or was not released in a safe place unharmed. And you will indicate such finding by filling in the appropriate space on the verdict form. (Tr. 929.) The proposed jury instructions were given to the attorneys for their review early in the trial. (Tr. 447.) Defense counsel did not object to this instruction. The lack of an objection - 16 - evidences the fact that the defense counsel was on notice of this aspect of the kidnapping charge. After deliberating, the jury found that defendant was guilty of kidnapping and, furthermore, that he did not release the victim in a safe place unharmed. (Tr. 958.) Second, and more importantly, the provision in R.C. 2905.01(C) which reduces kidnapping to a second degree felony "if the offender releases the victim in a safe place unharmed" is "not an element of the crime of kidnapping, but it is in the nature of an affirmative defense and it to be treated as such. State v. Cornute (1979), 64 Ohio App.2d 199 [18 O.O. 3d 412]." State v. Leslie (1984), 14 Ohio App.3d 343, 345. See also, State v. Brockwell (Jan. 26, 1995), Cuyahoga App. No. 67134, unreported; State v. Chapman (May 17, 1990), Cuyahoga App. No. 56945, unreported; State v. Moses (July 17, 1984), Franklin App. No. 84AP-77, unreported (indictment not defective for failing to contain "safe place unharmed language"). Additionally, the defendant in the case at bar was charged with rape along with kidnapping. This court has held that the "safe place unharmed" provision of R.C. 2905.01(C) is inapplicable when the victim is raped before being returned. State v. Copeland (Feb. 9, 1989), Cuyahoga App. No. 55029, unreported. We recognize that other unreported decisions from this court have reduced kidnapping convictions because the indictment did not contain the "safe place unharmed" language. See, State v. Williams (Oct. 19, 1995), Cuyahoga App. No. 67970, unreported; - 17 - State v. Smith (Mar. 24, 1988), Cuyahoga App. No. 53669. These cases, however, can be distinguished. In Smith, as opposed to the case at bar, the jury was never instructed to determine whether the victim was left in a safe place unharmed. In Williams, the defendant was not charged with the additional crime of rape. Notwithstanding Smith and Williams, the greater weight of authority throughout this state follows Cornute and Leslie and holds that the "safe place unharmed" language is not an element of the offense but rather an affirmative defense that must be pled. State v. Adkins (Jan. 29, 1997) Summit App. No. 17828, unreported. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 18 - 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. PATTON, J., MAHONEY*, J., CONCUR. DIANE KARPINSKI PRESIDING JUDGE *Judge Joseph E. Mahoney, Retired, of the Eleventh District Court of Appeals, sitting by assignment. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .