COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70982 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION WILLIAM A. BRUCE : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 25, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-201534. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Mark J. Mahoney, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: William A. Bruce, pro se No. CL-1293 1040 E. Roy Fermion Highway Watbesbyrg, PA 15370 DAVID T. MATIA, J.: William Bruce, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas, Criminal 2 Division, Case No. CR-201534, of the offenses of aggravated burglary, in violation of R.C. 2911.11, and kidnapping, in violation of R.C. 2905.01. Defendant-appellant assigns three errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS In July, 1985, Elizabeth Yenyo was employed as an intensive care nurse for the Cleveland Clinic and was living by herself in a first floor apartment on Hampshire Road in Cleveland Heights, Ohio. Ms. Yenyo's apartment was in close proximity to Coventry Road, an area noted as a residential and commercial district. On the night of July 12, 1985, Ms. Yenyo and two friends went to the Flats entertainment district in downtown Cleveland in order to hear some live music. (T. 119.) After leaving downtown, Ms. Yenyo and her friends decided to return to the Coventry area and eat dinner at what was then known as the Turkey Ridge Tavern. Ms. Yenyo estimated that she arrived at the Turkey Ridge at approximately8:00 p.m. and finished eating at approximately 11:30 p.m. Ms. Yenyo arrived back at her apartment shortly thereafter. (T. 121.) Ms. Yenyo's apartment was not air conditioned and, since the night was hot, she left her bedroom windows open. (T. 130.) Ms. Yenyo went to sleep at approximately 12:00 a.m. Sometime thereafter, Ms. Yenyo testified that she awoke to find someone standing at the foot of her bed. Ms. Yenyo, who was still partially asleep at this time, described the intruder as a 3 naked black male of small stature, shorter than her, and in his early twenties. Ms. Yenyo stated that she was 5'7" tall. (T. 124.) Defendant-appellant is approximately 5'4" tall and weighs 130 lbs. The intruder told Ms. Yenyo that he had seen her before in the area; that he had his eye on her; and that she was beautiful. He then proceeded to get into bed with her and place his head between her legs. At this point, Ms. Yenyo attempted to get out of the bed and the intruder struck her in the head with a closed fist. (T. 128.) Ms. Yenyo managed to flee the bedroom and, after a struggle in the kitchen, pushed herself through a broken hallway window onto a metal landing below sustaining various cuts on her hands, shoulders and legs. (T. 142.) After receiving assistance from bystanders and the police, Ms. Yenyo was taken to University Hospital for emergency treatment. After her release from the hospital, Ms. Yenyo did not return to her apartment but went to stay at her parents' home. Ms. Yenyo's father, Julius Yenyo, went to the apartment to gather her personal property which he placed in three or four cardboard boxes and brought back to his own residence. As she was going through the boxes, Ms. Yenyo discovered a small black bag that was not her property. Contained in the bag were a photo identification card issued by the Las Vegas Metropolitan Police Department to defendant-appellant identifying him as a registered convict, an out-of-state travel permit from the Nevada Department of Parole and Probation also issued to defendant-appellant and a pack of 4 cigarettes allegedly opened from the bottom. Ms. Yenyo identified the intruder as being the same person depicted in the photo identification card. The black bag and the items contained within were then turned over to the Cleveland Heights Police Department to be used as evidence. On August 14, 1985, the Cuyahoga County Grand Jury returned a three-count indictment against defendant-appellant. The first count of the indictment charged defendant-appellant with aggravated burglary, in violation of R.C. 2911.11. Count two charged defendant-appellant with rape, in violation of R.C. 2907.02. The final count of the indictment charged defendant-appellant with kidnapping, in violation of R.C. 2905.01. All three counts contained an aggravated felony specification arising out of defendant-appellant's prior conviction of the offense of robbery in the State of Nevada on or about November 10, 1983. On August 28, 1985, the Cuyahoga County Court of Common Pleas issued a capias for defendant-appellant. For the next ten years, defendant-appellant successfully eluded the Cuyahoga County Court of Common Pleas. Eventually, it was determined that defendant-appellant was in the custody of the Pennsylvania Department of Corrections where he was incarcerated under the alias Eric Barkley. Soon after, defendant-appellant was transferred back to Ohio in order to stand trial in the underlying case. On March 12, 1996, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all three counts contained in the indictment. At this time, the Cuyahoga County Public 5 Defender's Office was assigned to represent defendant-appellant. Prior to trial, defendant-appellant informed the trial court that he desired to represent himself at trial. The trial court, after explaining at length the ramifications of such a decision, agreed to allow defendant-appellant to proceed pro se with the provision that an attorney from the Public Defender's Office would sit with defendant-appellant at the trial table and serve as a technical advisor. On June 4, 1996, a jury trial commenced. Prior to trial, the trial court granted the state's motion to bifurcate the aggravated felony specification and overruled defendant-appellant's motion in limineregarding the exclusion of evidence based upon alleged chain of custody improprieties. At trial, the state's case consisted of the aforementioned testimony of the victim, Elizabeth Yenyo, as well as the testimony of Julius Yenyo, Ms. Yenyo's father. The state also elicited the testimony of Mr. Christopher Jenkins, an eyewitness, who had seen defendant-appellant hanging out on Hampshire Road earlier on the evening in question. In fact, Mr. Jenkins testified that he had bummed a cigarette from defendant-appellant who had removed the pack of cigarettes from a small black bag similar to the bag described by the victim and her father. (T. 184-87.) Later that same evening, Mr. Jenkins testified that he heard a woman scream and glass breaking. As he was running toward the scream, Mr. Jenkins observed defendant-appellant fleeing from the scene. (T. 189.) Mr. Jenkins proceeded toward the apartment building where he 6 discovered the victim hiding behind a screen door naked and bleeding. (T. 200.) The Cleveland Heights Police arrived shortly thereafter. The state also elicited the testimony of Mr. Dino Masseria, who stated that, on the night in question he had been walking with his girlfriend on a hill in the Coventry section of Cleveland Heights. As he was walking, Mr. Masseria heard glass shattering and, shortly thereafter, observed a black male running down the street past him. Mr. Masseria later identified defendant-appellant as the man he had seen running down the street. (T. 285-86.) Defendant-appellant's case consisted solely of the testimony of Mr. Joseph Courts. Mr. Courts, who was incarcerated at the time of trial for an unrelated offense, testified as to the general appearance of the Coventry area in Cleveland Heights. Mr. Courts admittedly had no personal knowledge relating to the facts that occurred on the night in question. (T. 410.) On June 10, 1996, the jury returned a verdict of guilty as to counts one and three of the indictment; aggravated burglary and kidnapping respectively; with the aggravated felony specifications. The jury returned a verdict of not guilty on count two, rape. On July 11, 1996, the trial court sentenced defendant-appellant to the Lorain Correctional Institution for a term of 15 to 25 years actual incarceration on count one and for a term of 15 to 25 years on count three. The trial court further ordered the sentences to be served consecutively with each other. 7 On July 22, 1996, defendant-appellant filed a timely notice of appeal from his convictions in the trial court. II. FIRST ASSIGNMENT OF ERROR William Bruce's, defendant-appellant's, first assignment of error states: THE DEFENDANT-APPELLANT'S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE UNITED STATES AND OHIO CONSTITUTIONS WERE VIOLATED WHEN THE STATE FAILED TO PROVE THE ESSENTIAL ELEMENTS OF AGGRAVATED BURGLARY AND KIDNAPPING, AND HE WAS SENTENCED ON BOTH OFFENSES. . THE ISSUE RAISED: SUFFICIENCY OF THE EVIDENCE. Defendant-appellant argues, through his first assignment of error, that his convictions of the offenses of aggravated burglary and kidnapping were improper. Specifically, defendant-appellant maintains that a review of the record demonstrates that the state failed to prove the essential elements of the charged offenses beyond a reasonable doubt. It is defendant-appellant's position that, since he was not convicted of the attendant rape charge, he could not properly be convicted of aggravated burglary or kidnapping because rape was, in essence, an essential element of both offenses. Defendant-appellant maintains further that he should not have been sentenced on both offenses. Defendant-appellant's first assignment of error is not well taken. . STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE. 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. 8 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. . EVIDENCE ADDUCED AT TRIAL WAS SUFFICIENT TO SUPPORT DEFENDANT- APPELLANT'S CONVICTIONS. In the case sub judice, both direct and circumstantial evidence was presented at trial by the state in an attempt to prove the elements of the offenses of aggravated burglary and kidnapping in violation of R.C. 2911.11 and R.C. 2905.01, with the aggravated 9 felony specifications. As of the date of the offense, R.C. 2911.11 provided in pertinent part: (A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another; * * * (3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present. (B) Whoever violates this section is guilty of aggravated felony of the first degree. Similarly, at the time of the offense, R.C. 2905.01 defined the elements of the offense of kidnapping as: (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: (1) To hold for ransom, or as a shield or hostage; (2) To facilitate the commission of any felony or flight thereafter; (3) To terrorize, or to inflict serious physical harm on the victim or another; (4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will; 10 * * * (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. At trial, it is clear that, when viewing the evidence in the light most favorable to the prosecution, the testimony of the victim as well as that of Mr. Christopher Jenkins supports the finding that defendant-appellant did, in fact, commit aggravated burglary as indicted. Clearly, defendant-appellant used force, stealth or deception to trespass in an occupied structure. The discovery of defendant-appellant's State of Nevada identification card and parole travel permit in Ms. Yenyo's apartment supports this conclusion. Defendant-appellant's intent to commit a felony within the occupied structure was also established through the testimony of Ms. Yenyo who stated that defendant-appellant got into her bed naked and attempted to initiate forced sexual conduct. (T. 128.) The essential elements of the offense of aggravated burglary were proven beyond a reasonable doubt. The fact that defendant- appellant was not convicted of rape does not, as defendant- appellant contends, invalidate the aggravated burglary conviction. Once intent has been established, whether the underlying felony was actually committed becomes irrelevant for purposes of the aggravated burglary charge. State v. Frazier (1979), 58 Ohio St.2d 253. The state also presented sufficient evidence at trial to establish the essential elements of the offense of kidnapping. 11 Viewing the testimony of Ms. Yenyo in a light most favorable to the prosecution, the state established that defendant-appellant restrained Ms. Yenyo's liberty for the purpose of engaging in sexual activity, as defined in R.C. 2907.01, against her will. (T. 125-30.) Accordingly, the trial court properly sentenced defendant-appellant on both the aggravated burglary and kidnapping convictions. State v. Waddy (1992), 63 Ohio St.3d 424, 448. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR William Bruce's, defendant-appellant's, second assignment of error states: DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. . THE ISSUE RAISED: MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues, through his second assignment of error, that the aggravated burglary and kidnapping convictions returned by the jury were against the manifest weight of the evidence. Specifically, defendant-appellant maintains that the victim's testimony was vague, uncertain, conflicting, fragmentary, and illogical, and, while truthful in some respects, did not have sufficient weight, certainty or credibility required to support his convictions and sentence. Defendant-appellant's second assignment of error is not well taken. . STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE. 12 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. 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; 13 ) 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. In this case, direct and circumstantial evidence was presented by way of the testimony of Ms. Yenyo as well as the introduction of defendant-appellant's identification card and parole travel permit from the State of Nevada to support the finding of guilt rendered by the jury in this case. In addition, two independent witnesses identified defendant-appellant as the individual they had observed jumping out of Ms. Yenyo's apartment window and fleeing from the scene on the night in question. Since the weight to be given the evidence and the credibility of the witnesses are primarily matters 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 14 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 aggravated burglary and kidnapping. Defendant-appellant's convictions were supported by substantial credible evidence upon which the trier of fact could reasonably conclude that defendant- appellant was guilty of the underlying offenses. Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR William Bruce's, defendant-appellant's, third and final assignment of error states: PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. . THE ISSUE RAISED: PROSECUTORIAL MISCONDUCT. Defendant-appellant argues, through his third and final assignment of error, that he was denied his constitutional right to a fair trial through prosecutorial misconduct. Specifically, defendant-appellant argues that the state's failure to produce the black bag and pack of cigarettes which were allegedly found in Ms. Yenyo's apartment along with defendant-appellant's photo identification and parole travel permit constitute prosecutorial misconduct. Defendant-appellant argues further that the following remarks made by the prosecutor during closing argument further prejudiced the case and deprived defendant-appellant of his right to a fair trial: 15 Why isn't the black bag here? I don't know. I don't pretend to explain it. On that subject, why aren't the Newport cigarettes, distinctively opened from the bottom, here? I don't know, and I don't intend to explain it. But I ask you this: Does it matter? What if we did produce the black bag? What would you then have? Just a black bag to look at. What is crucial is the testimony of the four people who saw the black bag. (T. 427.) Defendant-appellant's third and final assignment of error is not well taken. . STANDARD OF REVIEW FOR PROSECUTORIAL MISCONDUCT. Generally, conduct of a prosecuting attorney at trial shall not be grounds for reversal unless the conduct deprives the defendant of a fair trial. State v. Apanovich (1987), 33 Ohio St.3d 19; State v. Papp (1978), 64 Ohio App.2d 203. An appellant is entitled to a new trial only when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St.3d 13. In analyzing whether an appellant was deprived of a fair trial, an appellate court must determine whether, absent the improper questions or remarks, the jury would have found the appellant guilty. State v. Maurer (1984), 15 Ohio St.3d 239, 266; State v. Dixon (March 13, 1997), Cuyahoga App. No. 68338, unreported. The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips (1982), 455 16 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87. In addition, should a defendant fail to object to the prosecutor's allegedly improper comments at trial pursuant to Crim.R. 52(B), the comments in question must rise to the level of plain error affecting the substantial rights of the defendant 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; State v. Parker (Oct. 5, 1995), Cuyahoga App. No. 68156, unreported. . DEFENDANT-APPELLANT WAS NOT DENIED A FAIR TRIAL. Notwithstanding defendant-appellant's contentions, this court does not feel that the prosecutor's statements during closing argument or the prosecutor's failure to produce the black bag and cigarettes at issue can be characterized as misconduct which deprived defendant-appellant of his constitutional right to a fair trial. As a general rule, a prosecutor is entitled to a certain degree of latitude during closing argument. State v. Brown (1988), 38 Ohio St.3d 305; State v. Liberatore (1982), 69 Ohio St.2d 583, 589. Moreover, closing arguments must be viewed in their entirety to determine whether the disputed remarks were prejudicial. State v. Mann (1993), 93 Ohio App.3d 301, 312; State v. Burgun (1978), 56 Ohio St.3d 354. In this case, a review of the prosecutor's closing argument in its entirety discloses no prejudice to any substantial rights of defendant-appellant. It is not error for the prosecutor to argue 17 what he believes the evidence has shown and the reasonable inferences which can be drawn therefrom. State v. Richey (1992), 64 Ohio St.3d 353, 362. In this instance, the prosecutor's reference to the black bag and cigarettes was merely a comment related to and arising from the testimony of the victim, her father, and Christopher Jenkins, all of whom saw the evidence in question. Similarly, it cannot be said that the state's failure to produce the black bag and cigarettes denied defendant-appellant his constitutional right to a fair trial. The fact that the evidence in question was not present in the courtroom was a matter for the jury to consider in weighing all the evidence presented at trial and does not rise to the level of prosecutorial misconduct. Defendant-appellant's third assignment of error is not well taken. Judgment of the trial court is 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. BLACKMON, P.J. and PORTER, J., CONCUR. DAVID T. MATIA 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 .