COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70783 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION GERALDINE JORDAN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: November 13, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-325305. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Deborah Naiman, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Scott Roger Hurley, Esq. Assistant Public Defender 100 Lakeside Place 1200 W. Third Street Cleveland, OH 44113 DAVID T. MATIA, P.J.: Geraldine Jordan, defendant-appellant, appeals from her conviction in the Cuyahoga County Court of Common Pleas, Criminal 2 Division, Case No. CR-325305, of the offense of endangering children, in violation of R.C. 2919.22. Defendant-appellant assigns three errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On June 28, 1995, Geraldine Jordan, defendant-appellant, was indicted by the Cuyahoga County Grand Jury in a three-count indictment arising out of the death of eight-month-old Aaron Butler while Butler was at the Guardian Angel Day Care Center which was operated by defendant-appellant. Count one of the indictment, involuntary manslaughter,a violation of R.C. 2903.04, alleged that defendant-appellant caused the death of Aaron Butler while committing or attempting to commit a felony. Count two of the indictment, endangering children, a violation of R.C. 2919.22(B)(2), alleged that defendant-appellant recklessly tortured or cruelly abused a child under eighteen years of age resulting in serious physical harm. Count three of the indictment, endangering children, a violation of R.C. 2919.22(A), alleged that defendant- appellant recklessly created a substantial risk to the health or safety of Aaron Butler by violating a duty of care, protection or support resulting in serious physical harm. Counts two and three also contained a violence specification alleging that, during the commission of the indicted offense, defendant-appellant caused serious physical harm to Aaron Butler. 3 On July 14, 1995, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all three counts contained in the indictment. Prior to the scheduled trial in this case, the trial court ruled upon several preliminary issues. The most significant trial court ruling held that six-year-old Jeffrey Jordan, defendant- appellant's grandson, was competent to testify regarding certain inculpatory statements he allegedly made concerning defendant- appellant. This ruling was announced after an in-chambers competency hearing conducted by the trial court. A jury trial began on April 11, 1996. The state's case-in- chief consisted of twenty-one witnesses. The state's first witness was Venisha Butler, the eighteen-year-old mother of Aaron Butler, who testified that she had arranged for Aaron and his older brother Samuel to attend Guardian Angel Day Care Center while she attended Max Hayes High School during the 1995 school year. (T. 216.) Guardian Angel Day Care Center was located seven houses away from Ms. Butler's home and was operated by defendant-appellant. (T. 218.) On April 6, 1995, Ms. Butler took both her children to the Day Care Center. Ms. Butler also left a diaper bag containing extra clothes, disposable diapers, a bottle of tea and a bottle of Pedialyte which had been prescribed for Aaron by a doctor to prevent dehydration. (T. 223.) On the day in question, Aaron was suffering from diarrhea, congestion and labored breathing. (T. 223.) 4 Later that day, Ms. Butler returned to the Day Care Center to pick up her children, she was accompanied by her friend and neighbor Joy Foree. Upon entering the room, Ms. Butler was met by her eldest son Samuel as defendant-appellant left the room. Shortly thereafter, defendant-appellant returned holding Aaron and laid him on the couch indicating that he had been sleeping for two hours. (T. 231, 237.) As Ms. Butler proceeded to dress Aaron, she realized that his feet were cold and he was not breathing. (T. 232.) At this point, a woman named Janice Lester, who Ms. Butler described as a nurse, took Aaron into the hallway and began performing CPR on the child. (T. 238.) During this time, Jeffrey Jordan, defendant-appellant's six- year-old grandson, allegedly stated to Ms. Butler, Granny put tape over his mouth because he would not stop crying. (T. 245.) Ms. Butler questioned Jeffrey who repeated, Granny put tape over his mouth because he would not stop crying. Jeffrey Jordan's alleged statement was admitted into evidence pursuant to Evid.R. 803(1), the present sense impression exception to the hearsay rule. (T. 241-244.) Aaron Butler was transported to Rainbow Babies and Childrens Hospital by EMS. After approximately fifteen minutes of unsuccessful resuscitation, Aaron Butler was pronounced dead by the hospital. (T. 250.) Soon After, Ms. Butler informed police of Jeffrey Jordan's alleged statements. (T. 252.) 5 On cross-examination, Ms. Butler disputed school records which allegedly indicated that she had missed twenty-nine days of school during the time Aaron had been at defendant-appellant's Day Care Center. (T. 261.) She testified further that the only complete physical examination Aaron had received was one day after his birth on August 7, 1994. (T. 266.) Ms. Butler maintained that she always took Aaron to the emergency room whenever he was sick including February 1, 1995 when he was diagnosed with congestion and swimmer's ear for which he was prescribed amoxicillin for ten days. (T. 279.) On March 20, 1995, Ms. Butler again took Aaron to the emergency room as a result of defendant-appellant's contention that Aaron was suffering from diarrhea. The state's second witness, Kay May, an employee of the Cuyahoga County Coroner's Office Trace Evidence Department, testified that she tested State's Exhibit 2, a piece of blue tissue paper with gray duct tape, and State's Exhibit 3, a piece of gray duct tape, for the presence of body fluids. (T. 357.) Ms. May was unable to obtain a positive result from State's Exhibit 3. However, State's Exhibit 2 did contain body fluid that was consistent with Aaron Butler's blood type. (T. 360.) On cross-examination, Ms. May stated that the body fluid obtained from State's Exhibit 2 could have come from either the duct tape or the facial tissue. The tissue was never independently tested for the presence of body fluids. (T. 366.) 6 The state's third witness, Linda Luke, also of the Cuyahoga County Coroner's Trace Evidence Department, testified that she conducted the DNA testing of the saliva discovered in State's Exhibit 2 and also tested blood and saliva samples from Aaron Butler. Ms. Luke found the saliva sample on State's Exhibit 2 to be consistent with Aaron Butler's DNA. Ms. Luke concluded that one out of every 66,127 African-Americans would be consistent with the DNA found on State's Exhibit 2. (T. 373-374.) The state's fourth witness, Dr. Stela Miron, a deputy coroner with the Cuyahoga County Coroner's Office testified that she performed the autopsy on Aaron Butler. Dr. Miron concluded that nothing unusual was present with respect to Aaron's internal organs, however, his lungs were very congested. (T. 395.) In Dr. Miron's opinion, based upon a reasonable degree of medical certainty, Aaron's death was caused by asphyxia by upper respiratory infection and the application of duct tape on the mouth, and ruled the death a homicide accordingly. (T. 396-97.) Dr. Miron's opinion was based upon her own observations as well as information from the Trace Evidence Department of her office. The state's fifth witness, Sharon Rosenberg, from the Cuyahoga County Coroner's Trace Evidence Unit, testified that she removed certain materials from the face of Aaron Butler, but was unable to determine if the particles removed matched the duct tape samples removed from the Day Care Center. (T. 444.) The microscopic material was subsequently sent to the State Bureau of Criminal Identification and Investigation for additional comparison. A 7 specialist in micro-analysis at the Bureau determined that the submitted material did not match the tape. (T. 468.) Cindy Duke, a staff therapist in the Pediatric Respiratory Care Department at University Hospital testified for the state that she had been working in the emergency room on the day that EMS brought in Aaron Butler. At that time, Aaron was in full cardiac arrest, pulseless and not breathing. (T. 480.) In an effort to revive Aaron, Ms. Duke attended a physician who attempted to place an endotracheal tube in Aaron's airway. Once the tube was in place, Ms. Duke taped the tube to Aaron's upper lip with white surgical tape. (T. 484.) The tape was placed below Aaron's nose and no higher. (T. 496.) Joy Foree testified for the state that she had accompanied Venisha Butler to defendant-appellant's Day Care Center on April 6, 1995. Foree testified further that she overheard Jeffrey Jordan's alleged statements concerning defendant-appellant and taping the baby's mouth because he would not stop crying. (T. 504.) Officer Ray Kaloczi of the Cleveland Police Department testified for the state that he was on duty April 6, 1995 when he was dispatched to Rainbow Babies and Childrens Hospital regarding the death of Aaron Butler. As part of the investigation, Officer Kaloczi spoke with Venisha Butler and Joy Foree who both told him about the alleged statements of Jeffrey Jordan. Officer Kaloczi then proceeded to defendant-appellant's Day Care Center in order to inspect the scene and interview witnesses. (T. 615.) Once at the scene, Officer Kaloczi encountered a small child who was later 8 identified as Jeffrey Jordan. After a number of questions, Jordan led Officer Kaloczi to an upstairs bedroom where he observed two strips of gray duct tape laying on the ground. This tape was introduced into evidence as State's Exhibit 1 and State's Exhibit 2. The next significant witness for the state was Dr. John Smialek, Chief Medical Examiner for the State of Maryland. Dr. Smialek testified that, after examining all of the medical records and toxicology results provided to him by the state, it was his opinion that Aaron Butler did not die as a result of sudden infant death syndrome but rather, died as a result of an obstruction of the airway caused by the application of duct tape to his mouth. (T. 692.) Dr. Smialek found no evidence of pneumonia or any other respiratory infection. (T. 720.) At this point in the proceedings, the trial court allowed defense counsel to call a witness out-of-order to accommodate the witness' schedule. Dr. Gregory Kauffman testified that initially he believed that Aaron Butler died of SIDS. However, after reviewing the relevant tissue slides Dr. Kaufman radically changed his opinion on the ultimate cause of death to untreated viral pneumonia. (T. 798.) In Dr. Kaufman's opinion, the alleged application of duct tape and resultant asphyxia did not cause the condition in Aaron Butler's lungs. (T. 808.) The state then continued with its case-in-chief offering the testimony of various police officers and investigators regarding 9 the gathering of evidence, photographs and exhibits relating to this case. The state's twentieth witness, Marjorie Nolan, an EMS technician with the City of Cleveland, testified that she was dispatched to Guardian Angel Day Care Center on April 6, 1995. Upon her arrival, Ms. Nolan stated that she was unable to intubate the child as his neck was clenched and his body was stiff. (T. 931.) Ms. Nolan noted that her efforts at resuscitation were clearly unsuccessful as the baby's chest was not rising and falling as it would have if air had been entering the lungs. While at the Day Care Center, Ms. Nolan heard one of the other children present mention something about taping up a pacifier. (T. 931.) The final witness for the state was Detective George Stitt of the Cleveland Police Department. Detective Stitt testified that Jeffrey Jordan had allegedly stated to him that Granny (i.e. defendant-appellant) had put tape over the baby's mouth. (T. 967.) Initially, Detective Stitt speculated that either defendant- appellant or Jeffrey Jordan could have placed tape over the baby's mouth but Jeffrey was eventually eliminated as a suspect because he doubted that a six-year-old could tear a piece of duct tape. (T. 1026.) The defense case consisted of the testimony of six witnesses. Anita Laster, the first defense witness, testified that on April 6, 1995 she was employed as an assistant prosecutor for the City of Cleveland. During this period, defendant-appellant provided daycare services for her daughter. Ms. Laster maintained that she 10 never had any complaints or found anything unusual about defendant- appellant's Day Care Center. (T. 1133.) The final defense witness, Janice Lester, testified that on April 6, 1995 she was training to become a nurse. Ms. Lester's daughter also attended defendant-appellant's Day Care Center where she was very well cared for. (T. 1222.) Ms. Lester testified further that she was present when Ms. Butler discovered that Aaron was not breathing. Ms. Lester began performing CPR on Aaron until EMS personnel arrived on the scene. (T. 1236.) Ms. Lester maintained that at no time during the episode did she hear any mention of tape being placed over the baby's mouth. (T. 1237.) The state called one rebuttal witness, Dr. Elizabeth Balraj, Chief Coroner for Cuyahoga County. After reviewing the relevant medical evidence, Dr. Balraj determined that Aaron Butler was not suffering from viral pneumonia at the time of his death. (T. 1272.) Following closing arguments and the trial court's jury instructions, jury deliberations commenced on April 19, 1996. That same day, the jury returned a verdict of not guilty of involuntary manslaughter, R.C. 2903.04, as charged in count one of the indictment, guilty of endangering children, R.C. 2919.22(B)(2), as charged in count two of the indictment, and guilty of endangering children, R.C. 2919.22(A), as charged in count three of the indictment. The jury also determined that the violence specifications contained in counts two and three of the indictment had been proven beyond a reasonable doubt. 11 On May 9, 1996, the trial court proceeded with defendant- appellant's sentencing. At this time, defense counsel renewed its original motion for acquittal which had previously been denied. In the alternative, defense counsel moved to merge the convictions for counts two and three of the indictment. The trial court denied defendant-appellant's renewed motion for acquittal but granted the merger of counts two and three for purposes of sentencing. The trial court then sentenced defendant-appellant to three to fifteen years on the second count of the indictment. On June 7, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Geraldine Jordan's, defendant-appellant's, first assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO EXCLUDE HEARSAY STATEMENTS OF A NON-TESTIFYING DECLARANT WITHOUT A FINDING OF UNAVAILABILITY OR INDICIA OF RELIABILITY IN VIOLATION OF EVID.R. 801, EVID.R. 803 AND THE CONFRONTATIONCLAUSE OF SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION. . THE ISSUE RAISED: ADMISSION OF HEARSAY STATEMENTS. Defendant-appellant argues, through her first assignment of error, that the trial court improperly admitted into evidence testimony relating to the statement of Jeffrey Jordan, defendant- appellant's six-year-old grandson, regarding the allegation that defendant-appellant put tape over Aaron Butler's mouth because he would not stop crying. It is defendant-appellant's position that 12 Jordan's hearsay statement should not have been allowed into evidence since it failed to satisfy the necessary conditions under Evid.R. 803(2), the excited utterance exception to the hearsay rule. Specifically, defendant-appellant argues that the trial court never inquired into the requisite stress or excitement prong of the excited utterance exception. In addition, defendant- appellant maintains that, since there was no showing that Jeffrey Jordan was unavailable to testify, the admission of his hearsay statements violated the confrontation clause of the Ohio Constitution. The state maintains that the trial court properly allowed the disputed statements into evidence pursuant to Evid.R. 803(1), the present sense impression exception to the hearsay rule. The state argues further that Evid.R. 803 allows admission of the statements even though the declarant is available as a witness at trial. Defendant-appellant's first assignment of error is not well taken. . STANDARD OF REVIEW FOR PRESENT SENSE IMPRESSION. Evid.R. 803(1), the present sense impression to the hearsay rule, provides in pertinent part: The following are not excluded by the hearsay rule, even though the declarant is available. (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness. 13 A present sense impression bears a high degree of trustworthiness because the declarant described the event and uttered in close temporal proximity to the event. State v. Wages (1993), 87 Ohio App.3d 780, 787, 623 N.E.2d 193 (where declarant described the event during a phone call). See, also State v. Nichols(Mar. 27, 1986), Cuyahoga App. No. 50275, unreported. The key to a statement's trustworthiness is its spontaneity. Cox v. Oliver Machinery Co. (1987), 41 Ohio App.3d 28, 36, 534 N.E.2d 855; State v. Masood Moinuddin (July 10, 1997), Cuyahoga App. No. 70785, unreported. Both the present sense impression exception and the similar excited utterance exception originated as part of the older res gestae (spontaneous exclamations) hearsay exception. Evid.R. 803(1) Staff Notes, State v. Lester (Dec. 14, 1994), Summit App. No. 16691, unreported. Unlike an excited utterance, a present sense impression need not be made while the declarant is under the influence of emotion or trauma. Fabrication and faulty recollection are generally precluded by the fact that present sense impressions are limited to those statements describing or explaining an event made while or immediately after the declarant witnesses the event. Id. One of the central questions a trial court should consider in its assessment of the circumstances surrounding a statement is whether the declarant made the statement to a person that was in a position to verify the statement. However, corroboration is not necessarily required. Wages, supra at 788. 14 . THE TRIAL COURT DID NOT ERR BY ALLOWING THE STATEMENTS ATTRIBUTED TO JEFFREY JORDAN INTO EVIDENCE. In this case, the statements of Jeffrey Jordan regarding the allegation that defendant-appellant had taped Aaron Butler's mouth closed to stop him from crying were made in conjunction with the realization that the baby had stopped breathing and were both spontaneous and unsolicited. Jeffrey Jordan was not questioned in any way prior to making the statement and he voluntarily repeated the statement a number of times to various people. In fact, Jordan led police to the bedroom where Aaron Butler had been sleeping. In the bedroom, the police discovered duct tape and tissue which were later tested and determined to contain samples of Aaron Butler's DNA. Under these circumstances, it is apparent that the trial court properly allowed the statements into evidence pursuant to Evid.R. 803(1), the present sense exception to the hearsay rule. In addition, it is well established that a valid exception to the hearsay rule does not violate an accused's confrontation rights. State v. Stewart (1991), 75 Ohio App.3d 141, 151, 598 N.E.2d 1275; City of Mayfield Heights v. Albert (May 26, 1994), Cuyahoga App. No. 65318, unreported. Clearly, present sense impression constitutes such an exception. Evid.R. 803(1). Therefore, the trial court did not violate defendant-appellant's confrontation rights by admitting the statement even though Jeffrey Jordan did not testify at trial. State v. Dever (1992), 64 Ohio St.3d 401, 417; 596 N.E.2d 436. Accordingly, defendant-appellant's first assignment of error is not well taken. 15 III. SECOND ASSIGNMENT OF ERROR Geraldine Jordan's, defendant-appellant's, second assignment of error states: THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN THE VERDICT OF GUILTY AS TO THE CHARGE OF ENDANGERING CHILDREN, R.C. 2919.22. . THE ISSUE RAISED: SUFFICIENCY OF THE EVIDENCE. Defendant-appellant argues, through her second assignment of error, that her conviction of the offense of endangering children was improper. Specifically, defendant-appellant maintains that a review of the record demonstrates that the state failed to prove the essential elements of endangering children, i.e., torture or cruel abuse as set forth in R.C. 2919.22(B)(2), by legally sufficient evidence. It is defendant-appellant's position that since the jury acquitted her of involuntary manslaughter, it logically must have rejected the state's contention that defendant- appellant placed tape over the mouth of Aaron Butler. Therefore, reasonable minds could not properly conclude that defendant- appellant took any affirmative actions to torture or cruelly abuse Aaron Butler and her conviction was based upon insufficient evidence. Defendant-appellant's second assignment of error is not well taken. . STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE. 16 In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence. 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 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. State v. Jenks, supra, paragraph two of the syllabus. A judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case. Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. . THE EVIDENCE ADDUCED AT TRIAL WAS SUFFICIENT TO SUPPORT DEFENDANT-APPELLANT'S CONVICTIONS. In this case, both direct and circumstantial evidence was presented by the state in an attempt to prove the elements of the 17 offense of endangering children, in violation of R.C. 2919.22(B)(2), along with the attendant violence specification. R.C. 2919.22(B)(2) sets forth the following elements of the offense of endangering children: ) torture or cruelly abuse; ) a child under the age of eighteen; ) causing serious physical harm. At trial, it is clear that, when viewing the evidence presented in a light most favorable to the prosecution, the testimony of the victim's mother Venisha Butler; Cuyahoga County Coroner Trace Evidence Department employee Linda Luke; Dr. Stela Miron, Deputy Coroner; and Cuyahoga County Coroner Dr. Elizabeth Balraj supports the verdict that defendant-appellant did, in fact, commit the offense of endangering children as indicted. Ms. Butler testified that, upon arriving at the Day Care Center, she quickly discovered that Aaron was cold and no longer breathing. While waiting for the EMS ambulance, Ms. Butler overheard defendant- appellant's grandson say that defendant-appellant had taped the baby's mouth closed to stop him from crying. Linda Luke testified that she personally performed DNA testing on a piece of duct tape and tissue found in a bedroom at the Day Care Center determining that material on the samples matched the DNA sample taken from the victim. Similarly Dr. Miron and Dr. Balraj each testified that the duct tape played a major role in the death of Aaron Butler. Clearly, the evidence was sufficient to allow the trier of fact to return a verdict of guilty as to the offense of endangering 18 children. Contrary to defendant-appellant's assertion, the fact that defendant-appellant was acquitted of the charge of involuntary manslaughter does not demonstrate that the jury rejected all evidence relating to the alleged use of duct tape on the baby's mouth. It merely reveals that the jury was not convinced that defendant-appellant's use of the tape was the sole cause of the victim's death. This is consistent with the testimony of defense expert Dr. Gregory Kaufman who believed that Aaron Butler's death was caused by untreated viral pneumonia. Even if the victim did suffer from viral pneumonia, a fact vigorously disputed by the state, the use of duct tape in the manner alleged clearly constituted torture or cruel abuse of a child pursuant to R.C. 2919.22(B)(2). Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Geraldine Jordan's, defendant-appellant's, third and final assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. . THE ISSUE RAISED: MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues, through her third and final assignment of error, that her convictions for endangering children returned by the jury were against the manifest weight of the evidence. Specifically, defendant-appellant argues that the 19 state's evidence was vague, fragmented and contradictory as to the actual cause of death of Aaron Butler and that the state compleely failed to prove beyond a reasonable doubt that defendant-appellant took any affirmative steps to torture or cruelly abuse the baby in any way. Defendant-appellant's third and final assignment of error is not well taken. . STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE. State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: 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 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. *** 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. 20 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: ) Knowledge that even a reviewing court is not required to accept the incredible as true; ) Whether evidence is uncontradicted; ) Whether a witness was impeached; ) Attention to what was not proved; ) The certainty of the evidence; ) The reliability of the evidence; ) The extent to which a witness may have a personal interest to advance or defend their testimony; and ) 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. . DEFENDANT-APPELLANT'S CONVICTIONS WERE NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. As this court determined in its disposition of defendant- appellant's second assignment of error, ample evidence was adduced at trial through the testimony of the victim's mother, three doctors and a number of police officers to support the finding of 21 guilt rendered by the jury in this case. In addition, the state presented DNA testing matching DNA samples taken from the victim with DNA found on a piece of duct tape and tissue discovered in a bedroom at the Day Care Center where Aaron Butler was sleeping n the day in question. Since the weight to be given the evidence and the credibility of the witnesses are primarily mattes for the finder of fact to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact- finder, State v. Grant (1993), 67 Ohio St.3d 415; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the jury's verdict in this case is against the manifest weight of the evidence. Accordingly, a review of the record demonstrates that the jury did not lose its way and create a manifest miscarriage of justice by finding defendant-appellant guilty of endangering children. Defendant-appellant's convictions were supported by substantial and credible evidence upon which the trier of fact could reasonably conclude that defendant-appellant was guilty of the offenses as charged in counts two and three of the indictment. Defendant-appellant's third and final assignment of error is not well taken. Judgment of the trial court is affirmed. 22 It is ordered that appellee recover of appellant 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. O'DONNELL, J. and SPELLACY, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .