COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70951 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION LEONARD WASHINGTON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 17, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-330229 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 DANIEL M. MARGOLIS, ESQ. KATHLEEN W. WOOD, 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 - 2 - KARPINSKI, J.: Defendant-appellant Leonard Washington appeals from his jury convictions for attempted rape and felonious assault with accompanying prior aggravated felony burglary conviction specifications. Defendant contends that his convictions are against the manifest weight of the evidence. On November 9, 1995, defendant was indicted for aggravated burglary, attempted rape, and felonious assault, each charge with violence and prior aggravated felony specifications. The charges arose out of an incident on August 30, 1995, in which defendant allegedly broke into the apartment of his former girlfriend, Jacqueline Fulton, brandished a knife, attempted to rape her, and assaulted her. Approximately two months prior to the incident, Fulton had broken off the relationship. Defendant had cohabited with her for some time during their six-month relationship and shared living expenses. Defendant's version of the incident was that the two were involved merely in their customary rough sex, and that the victim complained after he refused to give her money. The undisputed evidence revealed that the victim was bitten and her bra ripped and forcibly torn off her and that she called the police for assistance on four prior occasions when defendant was at her apartment. At the time of the incident, defendant explained, he entered Fulton's apartment through the window just as he had previously when he was staying there. - 3 - The prosecution presented testimony from Fulton and two police officers who responded to her emergency 911 call after the altercation. Defendant testified on his own behalf. The trial court granted the prosecution's motion to delete the violence specifications and submitted the remaining charges to the jury. The jury acquitted defendant on the aggravated burglary charge, and found him guilty of the two remaining charges. The trial court entered judgment on the jury's verdict and sentenced defendant to concurrent indefinite terms of ten to fifteen years imprisonment on the attempted rape and felonious assault convictions. Defendant, through newly appointed counsel, timely appeals raising the following sole assignment of error: 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 ATTEMPTED RAPE AND FELONIOUS ASSAULT HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. This assignment lacks merit. Defendant contends the jury verdict is against the manifest weight of the evidence because he did not act with the necessary criminal mens rea to commit attempted rape or felonious assault. Defendant argues that the altercation was some form of a lover's quarrel in which he was mistaken about the victim's lack of consent when he sought to have sexual intercourse with her. Although he concedes that the prosecution presented sufficient evidence to sustain his convictions, defendant contends that his version of the incident was more credible than the victim's and - 4 - thus that his convictions are against the manifest weight of the evidence. The Ohio Supreme Court recently summarized the standard governing claims that a jury conviction is against the manifest weight of the evidence, stating in pertinent part as follows: "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 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." State v. Thompkins (1997), 78 Ohio St. 3d 380, 387 (quoting State v. Martin (1983), 20 Ohio App.3d 172, 175). After reviewing the record in compliance with this standard, we find that defendant has failed to show that his convictions for attempted rape or felonious assault are against the manifest weight of the evidence in this case. R.C. 2923.02, the criminal attempt statute, prohibits, in pertinent part, any person from purposely engaging in conduct which, if successful, would constitute or result in a criminal offense. R.C. 2907.02(A)(2) defines the completed offense of rape in pertinent part as engaging in sexual conduct when the offender purposely compels another to submit by force or threat 1 of force. R.C. 2903.11, in turn, defines the completed offense of felonious assault by prohibiting any person from knowingly 1 The term "sexual conduct" is defined by R.C. 2907.01(A) to include, inter alia, vaginal intercourse. - 5 - causing serious physical harm, or causing or attempting to cause physical harm with a deadly weapon, to anyone. R.C. 2901.22 defines the mental states of "purposely" and "knowingly" as follows: (A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature. (B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. Defendant contends he did not act with either state of mind. The record, however, supports the finding that defendant acted with sufficient "purpose" and "knowledge" to commit the crimes of attempted rape and felonious assault. As noted above, the victim testified in great detail that defendant continued to physically impose himself on her despite her persistent resistance and that he ultimately brandished a knife and bit her. (Tr. 145-153.) Despite his argument on appeal, defendant's own testimony at trial indicates that (after his alleged initial confusion) he subjectively realized that the victim did not want to have sexual intercourse with him. (Tr. 269-272). Defendant nevertheless persisted and, in his own words, the two "were 2 struggling like any other domestic violence." 2 R.C. 2907.02(G) specifically provides that it is not a defense to the crime of rape that the defendant and victim were cohabiting with each other. - 6 - We recognize that the existence of a mistake of fact may, under appropriate circumstances, negate the criminal mens rea of "purposely" or "knowingly." State v. Snowden (1982), 7 Ohio App.3d 358, 362-363. However, this case does not involve such circumstances. Not only does the evidence establish that defendant acted "purposely" and "knowingly," but the record refutes his contention that he acted on the basis of some type of "mistake" that the victim somehow consented to "rough sex" or felonious assault. Even if this court were to accept as true defendant's claim that he and the victim engaged in rough sex in the past, there was no evidence that any such incident involved the brandishing of knives, biting, or the degree of violence exhibited in this case. Moreover, there is no credible evidence that defendant reasonably or honestly believed that the victim consented to such violence in this case. This is not an exceptional case in which the evidence weighs heavily against the convictions. The jury did not clearly lose its way and create a manifest miscarriage of justice when resolving the conflicts in the evidence and considering the credibility of the witnesses. State v. Thompkins, supra; accord State v. Snowden, supra at 364. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. - 7 - 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. O'DONNELL, P.J., and LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI JUDGE 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 .