COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71139 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : JESSIE McSHAN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 28, 1997 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-337832 JUDGMENT : AFFIRMED IN PART AND : VACATED IN PART. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Ronni Ducoff Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Robert M. Ingersoll Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 2 AHRA, P.J.: Appellant was convicted of two counts of rape in violation of R.C. 2907.02 and one count of kidnapping in violation of R.C. 2905.01 after a trial to the court. He was sentenced to two concurrent life sentences for the convictions for rape and to a concurrent sentence of ten to twenty-five years for kidnapping. At trial, the State presented testimony from the following witnesses: the seven-year-old victim of rape; Lonny, the victim's older brother; Timothy Isaac, manager of the E.J. Kovacic Recreation Center; Michelle Richardson, M.D., the physician who examined the victim; City of Cleveland Police Patrol Officer Michael Benz; City of Cleveland Police Detective Essie Borders, a member of the sex crimes unit; Joseph Serowick, a civilian scientific examiner in the Cleveland Police Department forensic laboratory; and Kay May, a member of the trace evidence department of the Cuyahoga County Coroner's office. The victim testified that appellant grabbed her in the gym at the Kovacic Recreation Center, carried her to a balcony, and raped and sodomized her on the stairs. She recalled that the rapist wore red underwear with a white band or stripe. She stated that after the rape, she told her brother what had happened and that they then told Tim Isaac what appellant had done. Lonny, eleven years old, testified that he had taken his sister with him to the recreation center and that she was in the gym while he played basketball. He stated that he noticed that his sister was not in the gym and thought that she was with Ms. 3 Fischer, who works at the recreation center. He testified that when he and his friends were finished playing basketball, his sister ran to him and told him that the man with the hat had touched her with his thing. He took her to see Mr. Isaac. Timothy Isaac testified that the victim told him Jessie McShan raped her. In her narration, the victim told him that the rapist wore red underwear. Mr. Isaac stated that he immediately found appellant and questioned him, noticing a wet spot on appellant's pants. Mr. Isaac further testified that he had a staff member contact the victim's mother while he contacted the Cleveland Police. After the police arrived, appellant was arrested and the victim's mother took her to the hospital. Dr. Richardson testified that she examined the victim approximately four hours after the reported rape. Dr. Richardson stated that she was unable to conclude whether sexual penetration had occurred or not. Officer Benz testified that when he arrived at the recreation center, he spoke with Mr. Isaac and interviewed appellant. He asked to see appellant's underwear, which was red. Based upon this information, he placed appellant under arrest. He stated that he then went to the hospital to interview the victim and her mother, and to gather evidence. Detective Borders testified that she later interviewed the victim at the scene of the crime and took a statement from appellant. Joseph Sorowick testified that he examined both appellant's and the victim's clothing, finding spermatozoa in the crotch areas 4 of both pairs of pants as well as on the victim's underwear. He stated that the stains on the victim's clothes matched the blood type of appellant, which represented 16 percent of the applicable population. Kay May testified that she performed DNA analysis on the sample stains from the victim's underwear and that they were consistent with appellant's DNA, which occurs at a frequency of one-in-2000 within the applicable population. I. Appellant's first and second assignments of error read: . JESSIE McSHAN HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS SENTENCE OF TEN TO TWENTY-FIVE YEARS FOR KIDNAPPING, AS SAID SENTENCE EXCEEDS THE STATUTORY LIMITS PERMISSIBLE ON AN AGGRAVATED FELONY OF THE SECOND DEGREE. II. JESSIE McSHAN HAS BEEN DEPRIVED OF HIS CONSTITUTIONAL RIGHT NOT TO BE PLACED IN JEOPARDY TWO TIMES FOR THE SAME OFFENSE BY HIS CONVICTIONS FOR RAPE AND KIDNAPPING IN THE CASE AT BAR, AS THE CRIMES ARE, UNDER THE FACTS OF THE CASE, ALLIED OFFENSES OF SIMILAR IMPORT. We address appellant's second assignment of error first. Appellant argues that R.C. 2941.25 bars his conviction for both rape and kidnapping, because the crimes are allied offenses of similar import. In it's brief, the State concedes that the facts of this case do not warrant a finding of a separate animus for the kidnapping. R.C. 2941.25 provides that: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. 5 (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses; and the defendant may be convicted of all of them. In the syllabus of State v. Moralevitz (1980), 70 Ohio App.2d 20, 433 N.E.2d 1280, this court outlined the two-step analysis to determine whether two separate offenses are considered to be allied offenses. The first step is to analyze the elements of the offenses to determine if they have similar elements, common elements, or [if they are] offenses whose elements correspond to such a degree that the commission of one offense will result in the commission of the other. Id. If the offenses so correspond, then the second step in the inquiry is to examine the defendant's conduct to determine whether or not the defendant acted with a single animus, and if so, then the defendant may only be convicted of a single crime. Id. The syllabus in State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, states: In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this court adopts the following guidelines: (a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; 6 (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions. In determining whether rape and kidnapping are committed with separate animus, courts have analyzed a defendant's conduct. The movement of a rape victim from the street to an alleyway has been found to be incidental to the rape where the victim was released immediately after the rape. Logan, supra. The movement of the victim from a car into the woods and then released has also been found to be committed with a single animus. State v Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772. In addition to moving the victim, courts have looked to whether the confinement of the victim has been long in duration and whether the victim suffered other physical injury in addition to the rape. See, e.g., State v Ridgeway (1990), 66 Ohio App.3d 270, 583 N.E.2d 1123; State v. Moore (1983), 13 Ohio App.3d 226, 468 N.E.2d 920. In this case, appellant argues that the movement of the victim was slight and that the duration of her confinement was brief, lasting only as long as the rape. The State concedes that there is no basis for finding that the kidnapping was committed with a separate animus. Because the facts of this case do not indicate that the purpose of the abduction of the victim was for any other than the commission of the rape itself, we must agree with appellant's argument that he did not commit the crime of kidnapping with an animus separate from that of the rape. 7 Accordingly, we vacate appellant's conviction for kidnapping. Appellant's second assignment of error is well taken. Appellant's first assignment of error is rendered moot and need not be addressed. App.R. 12(A)(1)(c). II. Appellant's third assignment of error reads: III. JESSIE McSHAN WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW, WHEN THE TRIAL COURT PERMITTED A SEVEN-YEAR-OLD GIRL TO TESTIFY WITHOUT FIRST DETERMINING THAT SHE WAS A COMPETENT WITNESS. In order to testify at trial, a person must be competent to be a witness. Evid.R. 601 provides in part that: Every person is competent to be a witness except: (A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impression of the facts and transactions respecting which they are examined, or of relating them truly. The syllabus in State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483 states: In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity, and (5) the child's appreciation of his or her responsibility to be truthful. Appellant argues that the court did not adequately determine whether the victim in this case was competent to testify by testing her ability to perceive, remember, and recollect events. In this case, the court conducted a hearing to determine the victim's 8 competency to testify. A court conducting a voir dire to determine competency is not chained to a ritualistic formula to ask specific questions. It must satisfy itself of the elements enumerated in Frazier, that the witness is able to perceive, remember, and recollect events; understand the meaning of truth; and appreciate the meaning of an oath. State v. Ortiz (Nov. 14, 1996), Cuyahoga App. No. 69958, unreported. The witness's ability to recall and relate may be determined in voir dire or by her testimony itself. See, State v. Morgan (1986), 31 Ohio App.3d 152, 509 N.E.2d 428; State v. Lewis (1982), 4 Ohio App.3d 275; 448 N.E.2d 487. In this case, the court did not err by allowing the victim to testify. The victim understood the meaning of the truth and an oath. She demonstrated her ability to perceive, relate, and recall past events by her testimony at the competency hearing as well as by her testimony at trial. For these reasons, appellant's third assignment of error is overruled. III. Appellant's fourth assignment of error reads: IV. JESSIE McSHAN'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In assessing a claim that a conviction is against the manifest weight of the evidence, the appellate court is to critically examine the evidence and its inferences and determine whether in resolving conflicts in the evidence the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the 9 conviction must be reversed and a new trial ordered. State v. Mann (1993), 93 Ohio App.3d 301, 310, 638 N.E.2d 585, 590, discretionaryappeal not allowed, 70 Ohio St.3d 1412, 637 N.E.2d 9 (quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720). The reviewing court should consider whether the evidence is credible, contradicted, reliable, certain, or logical and the witness's interest in testifying. State v. Mattison (1985), 23 Ohio App.3d 10, 490 N.E.2d 926, syllabus. R.C. 2907.02 provides in part that: (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: *** (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. *** Sexual conduct is defined in R.C. 2907.01 as: (A) Sexual Conduct means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. In this case, the victim's testimony, along with the corroborating physical evidence, is sufficient, if believed, to enable the trier of fact to find appellant committed the elements of the crime charged. Appellant argues that the fact of penetration was not proven. However, appellant ignores the victim's testimony and relies on inconclusive medical evidence to support 10 this argument. Any penetration or contact of the victim's genitalia, as testified to by the victim in this case, is sufficient to sustain a conviction for rape. Accordingly, appellant's convictions for rape are not against the manifest weight of the evidence. Appellant's fourth assignment of error is not well taken. Judgment is affirmed in part and vacated in part. 11 Costs divided equally between plaintiff-appellee and defendant-appellant. 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. KARPINSKI, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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 of decision by the .