COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71382 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DWAYNE SANDERS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 9, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-331692. 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: Jean M. Gallagher, Esq. Assistant Public Defender 100 Lakeside Place 1200 W. Third St., N.W. Cleveland, OH 44113 DAVID T. MATIA, P.J.: Dwayne Sanders, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas, Case No. 2 CR-331692, of the offense of abduction in violation of R.C. 2905.02. Defendant-appellant assigns five errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS This case arises out of the alleged abduction of Kim Woods on October 7, 1995 by Dwayne Sanders, defendant-appellant. On December 19, 1995, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a four-count indictment. The first count of the indictment charged defendant-appellant with kidnapping, in violation of R.C. 2905.01. The second count of the indictment charged defendant-appellant with felonious assault, in violation of R.C. 2903.11. The third count of the indictment charged defendant- appellant with aggravated robbery, in violation of R.C. 2911.01. The fourth and final count of the indictment charged defendant- appellant with aggravated burglary, in violation of R.C. 2911.11. All four counts contained an aggravated felony specification alleging that defendant-appellant had previously been convicted of an aggravated felony, i.e., felonious assault, on April 16, 1991. On April 10, 1996, a jury found defendant-appellant not guilty as to counts two, three and four of the indictment. The jury was unable to reach a verdict on the first count of kidnapping. The trial court declared a mistrial on the kidnapping charge and the case was reset for a second trial as to that charge. On August 26, 1996, a jury trial commenced on the remaining kidnapping charge. Prior to trial, defendant-appellant stipulated 3 that he had previously been convicted of the offense of felonious assault as set forth in the aggravated felony specification. (T. 29.) At trial, the state's case consisted of the testimony of six witnesses. The first witness, Officer Timothy McGinty of the Cleveland Police Department, testified that on October 7, 1995, he was dispatched to West 25th Street and Lorain Avenue to assist a female. (T. 197.) Upon arriving at the scene, Officer McGinty observed a black female with a torn yellow dress and scrape marks on the left side of her body. Officer McGinty stated that the woman was distraught, excited, difficult to understand and crying. (T. 198-200.) Officer McGinty then drove the woman in his patrol car to her home and then to Lutheran Medical Center for treatment. At the hospital, the woman described her assailant as a black male of medium complexion with jeri curls named Prince Tolliver. Officer McGinty testified that he did not smell alcohol on the woman's breath. (T. 203.) The second witness for the state was the alleged victim, Ms. Kim Woods. Ms. Woods testified that she had been dating defendant- appellant, who she knew as Prince Tolliver, since August, 1995. On the night in question, October 7, 1995, Ms. Woods and defendant- appellant were going to discuss whether defendant-appellant would be moving into her home. (T. 216.) Ms. Woods borrowed an automobile from her friend, Geraldine Patton, on the night in question. The automobile belonged to Ms. Patton's boyfriend Eric, however Ms. Patton drove it frequently. (T. 258.) Ms. Woods then 4 drove from her home at 1765 West 57th Street to defendant- appellant's residence near East 71st Street and Central Avenue. Ms. Woods arrived at defendant-appellant's residence at approximately 10:30 p.m. Both of them drove over to Ms. Woods godfather's house at East 93rd Street and Beck. Ms. Woods proceeded into the house while defendant-appellant remained in the car. When Ms. Woods returned, defendant-appellant and the automobile were gone. (T. 221.) Ms. Woods then called defendant- appellant at his residence and he agreed to return and pick her up near East 89th Street and Quincy Avenue. Upon meeting at that location, Ms. Woods told defendant- appellant to move over as she wanted to drive. Defendant-appellant allegedly responded, Bitch, get in the car now before I fuck you up. (T. 223.) Ms. Woods entered the vehicle as she did not want to be stranded on the east side of Cleveland and since the vehicle in question had been loaned to her personally. Ms. Woods testified that, from this point forward, defendant- appellant began a series of verbal and physical assaults against her. For the next two hours, defendant-appellant drove Ms. Woods back and forth across the city, continually striking her and refusing to drive her home although on one occasion defendant- appellant did drive by Ms. Woods home but then sped up and drove on. (T. 225.) Ms. Woods testified that, during this episode, defendant-appellant punched her in the face, pulled large clumps of hair from her head, threw her out of the car, kicked her, threw her back in the car and continued driving. (T. 227-228.) 5 Sometime earlier, the car in which defendant-appellant and Ms. Woods had been riding, ran out of gas on East 71st Street. Ms. Woods allegedly went to a nearby gas station on two separate occasions before the vehicle was started. Ms. Woods re-entered the vehicle in spite of the fact that the physical and verbal assaults had already began. (T. 232.) Eventually, the automobile in which defendant-appellant and Ms. Woods were driving was traveling eastbound on Route 2 between West 45th Street and West 49th Street when Ms. Woods decided to exit the moving vehicle. Ms. Woods estimated that the vehicle was traveling at approximately 40 m.p.h. when she jumped. Defendant- appellant stopped the car, put it in reverse and backed up to where Ms. Woods was laying on the ground. Defendant-appellant jumped out and again started to beat and kick her. (T. 234-235.) After defendant-appellant left the scene in the automobile, Ms. Woods obtained assistance from an RTA bus driver who radioed the RTA police and transported Ms. Woods to the West 25th Street rapid transit station near the intersection of West 25th Street and Lorain Avenue. (T. 238.) The Cleveland police then transported Ms. Woods to her home and then to Lutheran Medical Center for treatment. Ms. Woods' medical records demonstrated that she suffered multiple abrasions to her left wrist, left hand, left knee and lower left leg which was placed in a knee immobilizer as a result of the injuries. After she returned home from the hospital, Ms. Woods received a telephone call from defendant-appellant's mother to tell Ms. 6 Woods where to pick up the automobile. Geraldine Patton and her boyfriend went to East 55th Street to retrieve the vehicle. (T. 259.) Ms. Woods testified further that, between October 7, 1995 and October 20, 1995, defendant-appellant and/or his mother phoned repeatedly requesting that Ms. Woods not pursue the matter with the police. On October 20, 1995, defendant-appellant appeared at Ms. Woods' home and began pounding on the door requesting admittance. Ms. Woods became afraid and phoned 911. Soon after, the police arrived and arrested defendant-appellant who, in the interim, had gained entry into Ms. Woods' residence. (T. 256.) The third witness for the state, Officer Cheryl Brown of the Cleveland Police Department, testified that, on October 20, 1995, she was assigned to a rapid response unit that was dispatched to an address on West 57th Street in the City of Cleveland. Upon arrival, Officer Brown was met by defendant-appellant who tried to tell her that no problem existed at the house. Officer Brown questioned Ms. Woods and her children after defendant-appellant was escorted outside and determined that there was in fact a problem. At this point, defendant-appellant was placed under arrest by the Cleveland police. (T. 341-342.) The fourth witness for the state was Ms. Sharon Minter, the RTA bus driver who assisted Ms. Woods on the night of October 7, 1995. Ms. Minter testified that she saw Ms. Woods, who appeared upset and distraught, and allowed her to board the RTA bus. Ms. Minter called the RTA police and then transported Ms. Woods to the 7 West 25th Street Rapid Transit Station. Ms. Minter described the victim's physical appearance as in disarray and her dress was completely torn. (T. 366-367.) The fifth witness for the state was Geraldine Patton. Ms. Patton's testimony centered upon the fact that she loaned the automobile in question to Ms. Woods on the night of October 7, 1995. Ms. Patton's testimony did not differ from that of Ms. Woods in any significant respect with one exception. Ms. Woods maintained during her testimony that she had asked the police to take her home before going to the hospital so that she could check on her two younger children. (T. 239.) Ms. Patton, who was also at Ms. Woods' home at the time, testified that the children were not at home. (T. 399.) The only child that was home at the time was Ms. Woods 19-year-old daughter, Tawana Merrill. The sixth and final witness for the state was Tawana Merrill. Ms. Merrill described her mother's appearance as terrible as she was unable to move the left side of her body without pain, her dress was torn in half and large clumps of hair had been pulled from her head. (T. 414.) After the police transported Ms. Woods to the hospital, Ms. Merrill testified that she received a telephone call from defendant-appellant who attempted to explain exactly how the incident occurred. (T. 416.) The state then rested and defendant-appellant moved for a judgment of acquittal pursuant to Crim.R. 29. The trial court denied defendant-appellant's motion for judgment of acquittal. 8 The defense consisted entirely of the testimony of one witness, Ms. Vernita Williams, who testified that she had been dating defendant-appellant. Ms. Williams explained that defendant- appellant was known as Prince Tolliver because his father's name was King Tolliver (T. 428-429). Ms. Williams also stated that defendant-appellant had introduced himself to her on a prior occasion as Dwayne Sanders. (T. 430.) Ms. Williams testified further that she had met Ms. Woods one time and Ms. Woods was allegedly argumentative and made Ms. Williams feel unwelcome. (T. 428-429.) The defense then rested its case and renewed its Crim.R. 29 motion for judgment of acquittal. The trial court once again denied defendant-appellant's motion. At the conclusion of the trial, the jury was instructed as to the charged offense of kidnapping, in violation of R.C. 2905.01 as well as the lesser included offense of abduction, a violation of R.C. 2905.02. After deliberations, the jury returned a verdict of not guilty as to the kidnapping charge but guilty as to the lesser included offense of abduction, an aggravated felony of the third degree. The trial court found defendant-appellant guilty as to the aggravated felony specification and sentenced defendant-appellant to a term of eight to ten years actual incarceration. On October 4, 1996, defendant-appellant filed a timely notice of appeal from his conviction in Case No. CR-331692. II. FIRST ASSIGNMENT OF ERROR 9 Dwayne Sanders', defendant-appellant's, first assignment of error states: MR. SANDERS WAS CONVICTED ON A LESS THAN UNANIMOUS VERDICT IN VIOLATION OF CRIM.R. 31, ART. I, SECT. 10 AND 16 OF THE OHIO CONSTITUTION WHEN THERE WAS NOT A UNANIMOUS FINDING THAT ONE OF SEVERAL ALTERNATIVE FORMS OF THE CRIME OF ABDUCTION HAD BEEN COMMITTED. . THE ISSUE RAISED: IMPROPER JURY VERDICT. Defendant-appellant argues, through his first assignment of error, that the jury's verdict was not, in actuality, a unanimous verdict. It is defendant-appellant's position that the offense of abduction has several alternate forms, however, the verdict fails to state that the jury unanimously found that defendant-appellant committed one of the alternate forms. Without such a finding, defendant-appellant maintains that the jury verdict could not be a unanimous verdict pursuant to Crim.R. 31(A). Defendant-appellant-s first assignment of error is not well taken. . STANDARD OF REVIEW FOR UNANIMOUS JURY VERDICT. Crim.R. 31(A), which deals with criminal jury verdicts, states: (A) Return. The verdict shall be unanimous. It shall be in writing, signed by all jurors concurring therein, and returned by the jury to the judge in open court. In State v. Johnson (1989), 46 Ohio St.3d 96, the Supreme Court held: If a single count can be divided into two or more district conceptual groupings, the jury must be instructed specifically that it must unanimously conclude that the defendant 10 committed acts falling within one such grouping in order to reach a guilty verdict. Id.At 104, citing UnitedStates v. Gipson (C.A. 5, 1977), 553 F.2D 453, 458. . ABDUCTION. R.C. 2905.02 sets forth the elements of the offense of abduction as follows: (A) No person, without privilege to do so, shall knowingly do any of the following: (1) By force or threat, remove another from the place where the other person is found; (2) By force or threat, restrain the liberty of another person, under circumstances which create a risk of physical harm to the victim, or place the other person in fear; (3) Hold another in a condition of involuntary servitude. (B) Whoever violates this section is guilty of abduction, a felony of the third degree. D. THE JURY VERDICT WAS NOT IMPROPER. In this case, defendant-appellant maintains that the offense of abduction is comprised of at least three alternative theories of potential guilt. Therefore, it is defendant-appellant's position that the trial court was required to instruct the jury on each separate alternative form of abduction and that a finding of guilty would have to be unanimous as to one of the alternative forms of the offense. Defendant-appellant argues that, in the absence of such an instruction, a patchwork or less than unanimous verdict was possible since the jurors could have convicted defendant- 11 appellant of the offense of abduction based upon different underlying alternative theories. The trial court instructed the jury regarding the lesser included offense of abduction as follows: *** Before you can find the defendant, Dwayne Sanders, guilty of abduction, and this I believe is a violation of a different statute, 2905.02 of the Ohio Revised Code. You must find beyond a reasonable doubt that on or about October 7, 1995 in Cuyahoga County, Ohio, the defendant, without privilege to do so, knowingly by force or threat removed Kim Woods from the place where she was found, and he, or he by force or threat restrained Kim Woods of her liberty under circumstances which created a risk of physical harm to her or placed her in fear. (T. 518.) In addition, the trial court further instructed the jury as to the requirement that it reach a unanimous verdict. Now, because this is a criminal case, the law requires that all twelve of you be in agreement before we consider you reached a verdict. I went over that very thoroughly with respect to verdict form number one, but I neglected on verdict two, if you come to the point of deliberating on abduction, you're going to be dealing with verdict form number two. A review of the record demonstrates that defendant-appellant did not object to the trial court's instruction nor did defendant- appellant request an augmented general instruction on unaniminity. Therefore, any alleged error is waived absent a showing of plain error. State v. Washington (Dec. 31, 1996), Lake App. No. 95-L- 128, unreported; State v. Long (1978), 53 Ohio St.2d 91. In this case, no plain error exists since defendant-appellant was not 12 prejudiced by the trial court's jury instruction as sufficient evidence was presented to sustain a finding of guilt under any of the alternative theories of the offense of abduction. State v. Morris(July 20, 1995), Cuyahoga App. No. 67487, unreported; State v. Hill (April 25, 1991), Cuyahoga App. No. 57334, unreported. The evidence presented will be discussed fully in this court's disposition of defendant-appellant's fifth and final assignment of error. Accordingly, defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Dwayne Sanders', defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED WHEN IT RULED THAT DEFENSE COUNSEL WOULD NOT BE GIVEN THE ALLEGED VICTIM'S WRITTEN STATEMENT TO THE POLICE FOR CROSS-EXAMINATION OR COMMENT. . THE ISSUE RAISED: THE USE OF A PRIOR WRITTEN STATEMENT FOR PURPOSES OF CROSS-EXAMINATION. Defendant-appellant argues, through his second assignment of error, that the trial court improperly prevented defense counsel from using Ms. Woods' prior written statement to the police for purposes of cross-examination of Ms. Woods during trial. Specifically, defendant-appellant maintains that the statement would have demonstrated certain material omissions and inconsistencies present in Ms. Woods' direct testimony that would have strongly supported defendant-appellant's contention that Ms. Woods fabricated the entire version of events presented at trial. 13 Defendant-appellant's argument identifies three separate alleged inconsistencies. First, defendant-appellant maintains that the trial court erred in ruling that the incident in which defendant- appellant and Ms. Woods allegedly ran out of gas, which was not mentioned in the police statement, constituted an omission and not a material inconsistency pursuant to Crim.R. 16(B)(1). Second, in Ms. Woods' police statement she maintained that she ran to the bus after she jumped from the moving automobile, however, at trial she testified that the bus driver helped her onto the bus. Defendant- appellant maintains that this also constituted a material inconsistency. Finally, in the police statement Ms. Woods stated that defendant-appellant actually hit her with the car, but no mention of this incident occurred during Ms. Woods' direct testimony. For the following reasons, defendant-appellant's second assignment of error is not well taken. . CRIM.R. 16(B)(1)(g). Crim.R. 16(B)(1)(g), which deals with the disclosure of evidence by the prosecuting attorney, states: (g) In camera inspection of witness' statement. Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. If the court determines that inconsistences exist, the statement shall be given to the defense attorney for use in 14 cross-examination of the witness as to the inconsistencies. If the court determines the inconsistencies do not exist the statement shall not be given to the defense attorney and he shall not be permitted to cross-examine or comment thereon. Whenever the defense attorney is not given the entire statement, it shall be preserved in the records of the court to be made available to the appellate court in the event of an appeal. Pursuant to Crim.R. 16(B)(1)(g), a defendant may request that the trial court conduct an in camera inspection of the written statement of a witness to determine if any inconsistencies exist between the testimony of the witness and his prior written statement. State v. Williams (April 22, 1993), Cuyahoga App. No. 62040, unreported. Both the prosecutor and defense counsel are required to be present during the trial court's inspection of the written statement and must be given the opportunity to review the statement and call to the trial court's attention any inconsistencies between the witness' direct testimony and the prior statement. State v. Daniels (1982), 1 Ohio St.3d 69. This inspection process ensures that any potential inconsistencies are brought to the trial court's attention and serves to assist the court in evaluating the existence of any alleged inconsistencies. The final determination as to whether the claimed inconsistencies exist within the witness' prior statement remains a determination to be made by the trial court, and cross- examination of the witness on the prior statement is to be limited 15 to those court determined inconsistencies. State v. Laboy (Feb. 10, 1983), Cuyahoga App. No. 44934, unreported; State v. Culver (Sept. 21, 1989), Cuyahoga App. No. 55895, unreported. . THE TRIAL COURT DID NOT ERR BY LIMITING THE USE OF THE VICTIM'S PRIOR STATEMENT. In the case sub judice, a review of the alleged inconsistencies identified by defendant-appellant demonstrates that the instances mentioned were not material inconsistencies, but rather, omissions in fact which were not material to the underlying charge of kidnapping. As the trial court properly determined: THE COURT: Okay. Here's my ruling. That is not inconsistent. In her statement she says I rolled out of the car on the ground. As I hit the ground, Prince turned the car to the right and the back wheel went over my left leg and arm. He then stopped the vehicle and came running to me and began to hit me and again punch me and kept yelling that I was a bitch, et cetera. There was no testimony in there that he put the car in reverse and rolled over her, but merely that he stopped the car. That's totally consistent with the fact that he stopped the vehicle and came running to me, okay. The best you can say that there she says he put the car in reverse and the car backed up. And that little point isn't here. Everything else I heard from you was not a true inconsistency. You can say that she didn't add that little detail in this statement; on the other hand, she didn't type the statement, someone else determined what is on this page and what isn't. And nothing, in any event, was material. (T. 265-266.) Defendant-appellant correctly maintains that material omissions may be inconsistencies pursuant to Crim.R. 16. State v. 16 Hartford (1984), 21 Ohio App.3d 29, 31. However, where the purported omissions are not material to the underlying charge, *** it is not appropriate to consider the omission of such details to be `inconsistencies.' Id. at 31. Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Dwayne Sanders', defendant-appellant's, third assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR WHICH VIOLATED MR. SANDERS' RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I. SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE TRIAL COURT PRECLUDED A HUNG JURY BY INSTRUCTING THE JURY THAT IT HAD TO REACH A VERDICT ON THE LESSER INCLUDED OFFENSE OF ABDUCTION. . THE ISSUE RAISED: IMPROPER JURY INSTRUCTION. Defendant-appellant maintains for the first time on appeal that the following instruction by the trial court improperly precluded the possibility of a hung jury on the offense of abduction: If you can't reach a verdict on kidnapping, you will be, of course, required to reach a verdict of some kind, guilty or not guilty on abduction, right. So you will be filling out verdict form number two. Or, you might fill out both if you find the defendant not guilty of kidnapping, and then you have to go on and consider abduction. You will be filling this one out, too, either guilty or not guilty, one and two. (T. 526.) 17 It is defendant-appellant's position that such an instruction was unduly coercive, a clear misstatement of the law and improperly emphasized to the jury the necessity of returning a verdict and therefore constitutes plain error. Defendant-appellant's third assignment of error is not well taken. . STANDARD OF REVIEW FOR JURY INSTRUCTIONS. A charge to the jury should be a plain and unambiguous statement of the law as applicable to the case made before the jury by the proof adduced. Marshall v. Gibson (1985), 19 Ohio St.2d 10, 12. It is well established that a trial court should confine its instructions to the issues raised by the pleadings and the evidence. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 208. When reviewing such an assignment of error, a single challenged jury instruction may not be reviewed piecemeal or in isolation but must be viewed within the context of the entire charge. State v. Hardy (1971), 28 Ohio St.2d 89; State v. Price (1979), 60 Ohio St.2d 136; State v. Wise (Jan. 29, 1993), Wood Cty. App. No. 91 WC 113, unreported. C. STANDARD OF REVIEW FOR PLAIN ERROR. It is well settled that a failure to object to jury instructions before the jury retires, absent plain error, constitutes a waiver. State v. Williford (1990), 49 Ohio St.3d 247, 251. The plain error doctrine allows a court to take note of plain errors or defects affecting substantial rights, even though such error was not brought to the attention of the trial court. 18 See Crim.R. 52(B); State v. Long (1978), 53 Ohio St.2d 91; State v. Smith(June 27, 1995), Franklin App. No. 940APA12-1702, unreported. The doctrine is to be used cautiously and only under exceptional circumstancesto prevent a manifest miscarriage of justice. Long, supra, at 94. Plain error will not be found with regard to improper jury instructions unless the outcome of the trial would clearly have been different. Williford, supra, at 153; State v. Cooperrider (1983), 4 Ohio St.3d 226, 227; State v. Joseph (1995), 73 Ohio St.3d 450, 455. 19 . NO PLAIN ERROR OCCURRED. In the case sub judice, a review of the entire record from the trial court fails to demonstrate that the challenged instruction created a manifest miscarriage of justice depriving defendant- appellant of a fair trial or an impartial jury. Accordingly, the plain error doctrine is not applicable to this case. State v. Bursey (Oct. 29, 1992), Cuyahoga App. No. 61606, unreported. Contrary to defendant-appellant's assertion, at the disputed stage of the proceedings, the trial court was merely directing the jury as to the proper manner in which to complete the jury verdict form for the offense of abduction, not directing the jury that it must reach a verdict at all costs. Viewing the jury charge in its entirety, it is apparent that the alleged inference of unfair prejudice arising from the disputed instruction is merely speculative in nature and does not rise to the level of plain error. Defendant-appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR Dwayne Sanders', defendant-appellant's, fourth assignment of error states: MR. SANDERS WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ART. I, SECT. 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. . THE ISSUE RAISED: EFFECTIVE ASSISTANCE OF COUNSEL. 20 Defendant-appellant argues, through his fourth assignment of error, that he was denied the constitutional right to effective assistance of counsel. Specifically, defendant-appellant maintains that he was irreparably prejudiced by defense counsel's failure to object to the conviction of the offense of abduction on a less than unanimous verdict as well as defense counsel's failure to object to the trial court's jury instruction that allegedly required the jury to reach a verdict on the lesser included offense of abduction. Defendant-appellant's fourth assignment of error is not well taken. . STANDARD OF REVIEW FOR EFFECTIVE ASSISTANCE OF COUNSEL. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: 21 When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396- 397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981). Strickland, supra, at 691. To warrant reversal, [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. ***. Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141, 142. . DEFENDANT-APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL. 22 In the case sub judice, a review of the record from the trial court in its entirety fails to disclose that the performance of defendant-appellant's counsel was seriously flawed and deficient resulting in prejudice to defendant-appellant. Contrary to defendant-appellant's contention, the fact that defense counsel failed to object to the trial court's jury instruction on the elements of abduction or request an augmented instruction as to the alternative theories of the offense does not rise to the level of ineffective assistance of counsel in light of the evidence presented at trial through the direct testimony of the victim, Ms. Woods, and the state's exhibits. There is nothing in the record to demonstrate that the outcome of the underlying trial would have, in any way, been different had the disputed objection been made. State v. Rockwell (1992), 80 Ohio App.3d 157. In addition, as this court previously determined, the trial court's instruction as to the jury verdict form for the offense of abduction did not, as defendant-appellant contends, preclude the possibility of a hung jury but merely informed the jury as to the procedure for completing the specific verdict form. Under the circumstances, defendant-appellant has failed to overcome the presumption of competence of licensed defense counsel. Smith, supra. Defendant-appellant's fourth assignment of error is not well taken. VI. FIFTH ASSIGNMENT OF ERROR Dwayne Sanders', defendant-appellant's, fifth and final assignment of error states: 23 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. . THE ISSUE RAISED: MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues, through his fifth and final assignment of error, that the evidence presented at trial was incredible, conflicting and inconsistent lacking sufficient weight, certainty or credibility to support his conviction and sentence. Defendant-appellant's fifth 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 24 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; ) 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. 25 . 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. Woods, the victim; RTA bus driver Sharon Minter; Geraldine Patton; Tawana Merrill, Ms. Woods' daughter; and two officers of the Cleveland Police Department in an attempt to establish the elements of the offense of abduction. Ms. Woods testified at length regarding the events of October 7, 1995 during which she was physically transported across the city a number of times against her will in a car operated by defendant- appellant. Ms. Woods testified further that during this episode, defendant-appellant verbally and physically assaulted her until such time as she jumped from the moving car. Ms. Woods' testimony was supported by the introduction of a number of exhibits including the dress that she had worn on the night in question, which had been ripped almost completely in half, as well as the medical records from Lutheran Medical Center detailing Ms. Woods' injuries. The testimony of Geraldine Patton and Tawana Merrill further strengthened the testimony of Ms. Woods as both maintained that, after returning from her encounter with defendant-appellant, Ms. Woods' physical appearance was terrible and she had a number of injuries. In addition, RTA bus driver Sharon Minter and Officer Timothy McGinty each testified as to their observation of Ms. Woods' appearance and mental state 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 26 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 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 the offense of abduction, a lesser included offense of 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 lesser included offense. Defendant-appellant's fifth and final assignment of error is not well taken. Judgment of the trial court is affirmed. 27 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. PORTER, 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 .