COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72044 STATE OF OHIO : : : Plaintiff-appellee : : : -vs- : JOURNAL ENTRY : AND : OPINION MELVIN THOMPSON : : Defendant-appellant : DATE OF ANNOUNCEMENT APRIL 23, 1998 OF DECISION CHARACTER OF PROCEEDING Criminal appeal from Common Pleas Court Case No. 341905 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE Larry W. Zukerman, Esq. Stephanie Tubbs Jones, Esq. Zukerman & Daiker Co., L.P.A. Cuyahoga County Prosecutor 2000 East 9th St., Suite 700 Justice Center, 8th Floor Cleveland, Ohio 44115 1200 Ontario Street Cleveland, Ohio 44113 -2- MICHAEL J. CORRIGAN, J.: Melvin Thompson, defendant-appellant, appeals his conviction of one count of aggravated burglary in violation of R.C. 2911.11, five counts of aggravated robbery in violation of R.C. 2911.01, five counts of kidnaping in violation of R.C. 2905.01, one count of rape in violation of R.C. 2907.02 and one count of felonious assault in violation R.C. 2903.11, in the Cuyahoga County Court of Common Pleas, Criminal Division. All counts contained a firearm specification. In this appeal, defendant-appellant raises six errors for review. This court, finding no error, affirms defendant- appellant's convictions. This case arose from an incident which took place on September 9, 1996, at the home of Mrs. Margaret Sims who lived on Columbia Road in Cleveland, Ohio. Shortly after midnight, four masked and/or hooded males entered the premises and burglarized, robbed and kidnaped various individuals who were present in the house. One woman was raped. Four males, including defendant-appellant, were arrested and tried together on the various criminal charges. On November 7, 1996, defendant-appellant filed a motion to suppress the eyewitness identification. On December 9, 1996, defendant-appellant filed a motion to separate the trials. Both motions were denied by the trial court. A jury trial commenced on December 9, 1996. At the time of the incident, Mrs. Sims was living with Mr. Zebbie Robertson. Mr. Robertson testified that shortly after midnight, he was in the living room when four masked and/or hooded -3- gunmen kicked in the front door, ordered him to lie face down on the floor and asked him where the money was. He was then blindfolded and robbed of approximately $80.00. Margaret Sims, the homeowner, was in her second floor bedroom rolling her hair when an intruder came in carrying a handgun. She testified that he put the gun in her face, told her to lie down with a pillow over her head and asked where the money was. After searching the owner's room, the intruder then took her to her daughter's room and ordered her to lie down on the bed with the children. Other male intruders came into the bedroom brandishing guns and shotguns. Mr. Robertson was robbed of approximately $1,900 in uncashed social security checks. The daughter, Quashawena, testified that she was in her bedroom using her phone when a gunman burst into her room and demanded that she put the telephone down and then he disconnected the telephone. At that time, Quashawena's sister, Janice, and nephew, Deonte, were also in the bedroom. The gunman demanded to know where her brother kept the money. When she denied any knowledge of the money, she was ordered to lie face down on the bed with the others and pull the bedding over her head. Quashawena testified that she was able to observe a second gunman entered the room carrying a shotgun. She testified that the original gunman then left the room and subsequently returned with Quashawena's mother. She identified defendant-appellant in court as the original gunman and the second gunman as Dontez White. -4- Edward Sims also lived with his mother, Margaret. He testified that shortly after midnight, he returned home with his girlfriend, Lakeithta Small and her cousin, Sheri. As Edward entered the house, an intruder put a gun in his face and ordered him to the floor. He was then taken to his bedroom in the attic. A gunman ordered him to lie down on the floor face down and asked where he kept the money. When he denied any knowledge of the money, he was beaten in the head with the gun. After the gunman left, Edward jumped out of the window and ran to telephone the police. It was later discovered that approximately $1,000 was missing from a box Edward kept near his bed in the attic. Edward's girlfriend, Lakeithta Small, corroborated this version of events. She testified that when they entered the house, an intruder pointed a gun at them and ordered them to the floor. She noticed Mr. Robertson lying on the living room floor bound and gagged. When Edward was taken to the attic, she testified that one of the gunman took her and her cousin to the second floor bedroom where Margaret Sims and her daughter were being held. One gunman stayed in the bedroom while the others took Edward up into the attic. The gunman who stayed in the bedroom told her that Edward owed them $10,000 and if they did not receive their money, they would kill all the occupants in the house. Ms. Small told the gunman that she was Edward's sister for fear of what might have happened to her if they found out she was his girlfriend. Ms. Small testified that she was sitting on the bed and could clearly see into the hallway because the hallway and attic lights -5- were on. Two gunmen came down from the attic and yelled at her, Bitch, where is your Cavalier, thinking that she was another person. This gunman had on a heavy coat but she could see his face and later identified him as Julius Potter. Ms. Small also identified the other gunman who came down from the attic as Dontez White. Ms. Small then identified defendant-appellant as the third gunman to come down from the attic. She testified that he was wearing a blue Indian's T-shirt, light blue jean shorts and white and blue tennis shoes. He grabbed her purse and took approximately $80 from it. He then took Ms. Small into another room and ordered her at gunpoint to perform fellatio. She testified that she did what he said because he had a gun to the side of her head. Defendant-appellant then ordered her to take off her shorts and pull her dress up. He then stuck his penis in her vagina but because of her resistance, he stopped. Appellant then ordered her to again perform fellatio. Ms. Small testified that defendant- appellant put his gun down and put his penis near her face. At this point, she bit defendant-appellant's penis. A struggle ensued until a loud noise was heard. All the intruders, including defendant-appellant, ran out of the house. Ms. Small checked on the other people in the house but did not see Edward. She then ran out to call the police at a neighbor's house as their phone lines had previously been cut. Ms. Small saw Edward a few minutes later and testified that his face had been badly beaten. -6- Ms. Small went to Mt. Sinai Hospital where she explained what had happened to her. After being given an examination, the police came and she again explained what took place that evening. Ms. Small testified that she subsequently received some information from friends that the intruders were from the Hough area of town so she went over there to see if she could identify any of them. Looking out of her friends window, she identified Julius Potter walking on the street as the gunman who asked her where the Cavalier was. Ms. Small subsequently went to the Sex Crimes Unit to identify photos of suspects. She identified defendant-appellant as the gunman who raped her and Dontez White as one of the other gunman in the house. Ms. Small testified that Detective Essie Borders-Howard of the Sex Crimes Unit did not tell her who to pick in the photo array. Detective Borders-Howard subsequently contacted Ms. Small again and asked her to come down to the Unit to view another photo array. Ms. Small let herself into the waiting area and saw Detective Borders-Howard and another police officer escorting a person out of the Unit. Ms. Small immediately identified that individual as Julius Potter as one of the gunmen. She further testified that Detective Borders-Howard in no way told her or suggested to her that Julius Potter was one of the suspects. The state also called Charlie Cooper as a witness who testified that he lived in the Hough area and was told by Julius Potter a few days before the incident that some niggers is out on -7- some house shit and that these niggers want to rob you, but it ain't nothin because you my dude. Julius Potter also told Mr. Cooper to watch his back and that the Sims brothers had better be careful. Mr. Cooper then identified Julius Potter in court as the man he had the conversation with. The state also called Detective Borders-Howard of the Sex Crimes Unit who worked on the case. She testified that she attempted to conduct a line-up but did not have enough people in which to conduct one. Instead, Detective Borders-Howard presented a photo array that consisted of fifteen individuals including all of the defendants. All of the witnesses viewed the photo array separately. The detective testified that Ms. Small identified Dontez White as one of the gunman and defendant-appellant as the gunman who had raped her. She testified that Ms. Small informed her that Julius Potter was also involved in the incident and for that reason he was arrested. When the detective began questioning Julius Potter about the incident, he had a panic attack and they had to escort him to the medical unit. As they were escorting Julius Potter out, Ms. Small was in the waiting room and stated That's him. That's him. That's the one at the house. The detective testified that she never told Ms. Small that Julius Potter was one of the suspects and that she was merely helping him out of the Sex Crimes Unit. The state rested its case and defense counsel made a Crim.R. 29 motion for acquittal. The court overruled the motion except that it dismissed Counts Seven and Thirteen as to all defendants -8- (aggravated robbery and kidnaping of Janice Sims). The trial court also dismissed the rape counts to all defendants except defendant- appellant. Defendant-appellant and the other defendants asserted their Fifth Amendment privilege against self-incrimination and chose not to testify. On December 17, 1996, defendant-appellant was found guilty of one count of aggravated burglary, five counts of aggravated robbery, five counts of kidnaping, one count of rape, and one count of felonious assault. All counts contained a firearm specification. Defendant-appellant timely files this appeal. Defendant-appellant states as his first assignment of error: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTION TO SUPPRESS EYEWITNESS IDENTIFICATION IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW. Defendant-appellant argues the photo array prepared and utilized by Detective Howard was impermissibly suggestive and unreliable. Specifically, defendant-appellant argues that out of the spread of fifteen (15) individuals, only the four defendants are close-up, single photographs as opposed to rectangular mug shots with both side and front views of the individuals. Moreover, defendant-appellant argues the defendants' photographs were the only ones with a measuring wall as their background. Finally, defendant-appellant argues the fact that all four defendants were placed in the array as opposed to being placed in an array individually is impermissibly suggestive. For the following -9- reasons, we find the photo array was not impermissibly suggestive and that defendant-appellant's motion to suppress the identifica- tion was properly denied. Where a witness has been confronted by a suspect before trial, that witness' identification of the suspect will be suppressed if the confrontation procedure was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under the totality of the circumstances. Manson v. Brathwaite (1977), 432 U.S. 98; State v. Brown (1988), 38 Ohio St.3d 305. The defendant has the burden to show the court that the identification procedures were unnecessarily suggestive. State v. Sims (1984), 13 Ohio App.3d 287. In State v. Haley (1994) 93 Ohio App.3d 71, 76, the Court stated: The threshold question is whether the photo identification is impermissibly suggestive. All identification processes are inherently suggestive. Due process is violated only when the process is so impermissibly suggestive that the identification is unreliable in that there exists a substantial likelihood of irreparable misidentification. To this end, this court held in State v. Byarse (Sept. 4, 1997), Cuyahoga App. No. 70282, unreported: When defendant is identified at trial following a pretrial identification by photograph, the defendant's conviction will be set aside if the photographs are so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247. Suggestiveness depends upon several factors, including the size of the array, its manner of presentation, and its contents. Reese v. Fulcomer (C.A.3, 1991), 946 F.2d 247, 260. Stated otherwise, the test is whether the picture of the accused, matching descriptions given by the witness, so -10- stood out from all of the photographs as to suggest to an identifying witness that [that person] was more likely to be the culprit. Jarrett v. Headly (C.A. 2d. 1986), 802 F.2d 34, 41. See, also, State v. Barnett (1990), 67 Ohio App.3d 760, 767. Finally, although the identification procedure may have contained notable flaws, this factor does not, per se, preclude the admissibility of the identification. State v. Merrill (1984), 22 Ohio App.3d 119, 121; State v. Moody (1978), 55 Ohio St.2d 64, 67. Rather, the focus then shifts to reliability, i.e., whether the out-of-court suggestive procedure created a very substantial likelihood of misidentification. Simmons v. United States (1968), 390 U.S. 377. In this case, only two witnesses identified defendant- appellant: Quashawena Sims and Lakeithta Small. Quashawena testified that defendant-appellant was the first gunman to come into her room, stood right in front of her bed and asked her where the money was. When another gunman came into the room, defendant- appellant left and came back with her mother. She testified that defendant-appellant did not have anything covering his face, that he was medium size, brown skinned, and a low haircut. He was wearing an Indian's T-shirt and blue jean shorts. She then identified defendant-appellant in the photo array and again at trial as that individual. Lakeithta Small testified that when she went into the house, she observed four intruders. One of the gunmen had on a T-shirt, shorts, tennis shoes and nothing covering his face. When they were taken to the upstairs bedroom, Ms. Small was able to see in the -11- hallway which had the light on. She observed defendant-appellant coming down from the attic and approach her. Ms. Small testified that he had on an Indian's T-shirt, light blue jean shorts, white and blue tennis shoes and a low haircut. Defendant-appellant searched through her purse, took out approximately $80 and forced her into another bedroom where he raped her. Again, Ms. Small identified defendant-appellant in the photo array and at trial. A review of the photographs demonstrates that each of the fifteen (15) males depicted in the array are comparable to the general descriptions given by the victims of the intruders. Moreover, Detective Howard testified that the photo array was shown to each victim at a separate time. Finally, a review of the testimony of both witnesses establishes that their identification was made objectively and without suggestion or influence by Detective Howard. While we acknowledge the photo array contained flaws, i.e., defendants were the only single shots with a measuring wall background, we do not find that the nature of the photo array creates a substantial likelihood of misidentification nor do we find that it was impermissibly suggestive. Merrill, supra; Simmons, supra. Especially in light of the witnesses' corroborating description of defendant-appellant at the scene of the crime as well as the witnesses' opportunity to see defendant-appellant's face, their degree of attention when viewing defendant-appellant, and the level of each witnesses' certainty. See Neil v. Biggers (1972), 409 U.S. 188, 199-200. For these reasons, the trial court -12- did not err in denying defendant-appellant's motion to suppress. Defendant-appellant's first assignment of error is not well taken. Defendant-appellant states as his second assignment of error: II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION THAT THE MEDICAL STAFF OF CUYAHOGA COUNTY JAIL CONDUCT AN EXAMINATION OF APPELLANT'S GENITALS IN VIOLATION OF APPELLANT'S STATES AND FEDERAL RIGHTS TO DUE PROCESS OF LAW AND COMPULSORY PROCESS. Defendant-appellant argues that the trial court abused its discretion in denying his request for an order that an impartial member of the medical staff for the County Jail conduct an examination of his genitals in response to the testimony of Ms. Small who stated that she bit his penis during the rape. Defendant- appellant argues the trial court's denial deprived him of his rights to due process and/or compulsory process. It is well established that pursuant to Evid.R. 104, the introduction of evidence at trial falls within the sound discretion of the trial court. State v. Heinish (1990), 50 Ohio St.3d 231; State v. Sibert (1994), 98 Ohio App.3d 412. An abuse of discretion connotes more than an error in law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. As the Supreme Court has noted: An abuse of discretion involves far more than a difference in *** opinion. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an abuse in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but the perversity of will, not the -13- exercise of judgment, but the defiance thereof, not the exercise of reason but rather of passion or bias. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, quoting, State v. Jenkins (1984), 15 Ohio St.3d 164, 222. In support of his assertions, defendant-appellant cites to State v. Minkner (1994), 93 Ohio App.3d 127. In that case, the appellate court for Clark County held it was an abuse of discretion for the trial court to deny the defendant's request for a physical examination of his penis to see if it had the physical characteristics described by the alleged victim. There, the victim alleged the defendant's penis had features/characteristics which would indicate he had surgery. The appellate court noted the discrepancies in the victims statements to the police and her testimony at trial. Additionally, the court noted that the victim's statements concerning a surgical scar took on additional significance since it was apparent the jury had trouble deciding who to believe, i.e., defendant was acquitted of rape but found guilty of kidnaping. For these reasons, the appellate court concluded the denial of defendant's motion for a visual examination constituted an abuse of discretion. In this case, we find the facts in Minkner to be distinguishable. In Minkner, there were claims of a permanent surgical scar. In this case, the victim testified only that she bit his penis. There is no way of knowing whether or not there would be any permanent disfigurement/characteristic resulting from the injury given the fact that Ms. Small's testimony was approximately -14- three months after the incident occurred. As such, we find the probative value of such an examination to be questionable at best. Moreover, contrary to Minkner, there is no evidence that the jury did not believe Ms. Small's testimony. Defendant-appellant was convicted of one count of rape. We also note that a photograph could have been taken of defendant-appellant's penis and introduced as an exhibit to rebut Ms. Small's testimony. The defendant likewise could have been the vehicle for this evidence by way of his own testimony. While we recognize the medical records indicate Ms. Small denied biting defendant-appellant's penis during her examination, we find after a review of the record and based upon the aforementioned facts that the trial court did not abuse its discretion in denying defendant-appellant's motion for an examination of his penis. Defendant-appellant's second assignment of error is not well taken. Defendant-appellant states as his third assignment of error: III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY INSTRUCTING THE JURY THAT YOUR DUTY IS CONFINED TO THE DETERMINATION OF GUILT OR INNOCENCE OF THE DEFENDANT IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS TO A JURY VERDICT, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION AND TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION. Defendant-appellant argues the trial court committed prejudicial error when it instructed the jury that [y]our duty is confined to the determination of the guilt or innocence of the defendants and to the determination of the specifications submitted -15- to you. Defendant-appellant argues this instruction impermissibly shifts the burden to defendant to establish his innocence thereby confusing the burden of proof. Initially, we note that defense counsel failed to object to any perceived error in the trial court's jury charge. It is well established that absent plain error, an appellate court will not consider errors which the defendant failed to object to at the trial level. State v. Williams (1977), 51 Ohio St.2d 112. A defective jury instruction does not rise to the level of plain error unless it can be shown the outcome of the trial would clearly have been different but for the alleged error. State v. Campbell(1994), 69 Ohio St.3d 38; Cleveland v. Buckley (1990), 67 Ohio App.3d 799. Moreover, a single challenged jury instruction may not be reviewed piecemeal or in isolation but must be reviewed within the context of the entire charge. See State v. Hardy (1971), 28 Ohio St.2d 89. In this case, the trial court did state that the defendant must be acquitted unless the state produces evidence which convinces you beyond a reasonable doubt of every essential element of the offenses charged in the indictment. After viewing the disputed statement in the context of the overall jury charge, we find the trial court did not commit plain error. See State v. Cotton (July 14, 1994), Cuyahoga App. Nos. 64361, 64378, unreported. Defendant-appellant's third assignment of error is not well taken. Defendant-appellant states as his fourth assignment of error: -16- IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S CRIMINAL RULE 14 MOTION FOR SEPARATE TRIALS, IN THAT APPELLANT WAS SUBSTANTIALLY PREJUDICED BY THE JOINDER OF TRIALS WITH THE OTHER CO-DEFENDANTS IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW, JURY TRIAL AND COMPULSORY PROCESS. Joinder of defendants and the avoidance of multiple trials is favored in the law because joinder conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of incongruous results in successive trials before different juries. State v. Thomas (1980), 61 Ohio St.2d 223, 225. R.C. 2945.13 states: When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court, for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants to be tried separately. Whether an accused shall be tried separately is a matter within the discretion of the trial court. State v. Abbott (1949), 152 Ohio St. 228. Joinder is the rule rather than the exception and the burden was upon defendant to show good cause why the separate trial should be granted and that the trial court abuse its discretion in refusing to do so. State v. Perod (1968), 15 Ohio App.2d 115. Further, a defendant asserting that joinder is improper must make an affirmative showing that his rights will be prejudiced. State v. Roberts (1980), 62 Ohio St.2d 170. See, also, State v. Robles (1989), 65 Ohio App.3d 104. -17- In this case, defendant-appellant argues the trial court committed prejudicial error by failing to grant his motion for a separate trial in violation of Crim.R. 14 which states: If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. Specifically, defendant-appellant argues he was denied the opportunity to raise antagonistic defenses which would exculpate himself and incriminate his co-defendants. He argues that he intended on asserting an alibi defense and sought to use the co- defendant's testimony to show he was not present at the scene of the crime. Since co-defendants Julius Potter and Dontez White did not assert an alibi defense, their defenses and defendant- appellant's defense would necessarily be antagonistic. See State v. Daniels (1993), 92 Ohio App.3d 473. We disagree. In Zafiro v. United States (1993), 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317, the United States Supreme Court was confronted with the issue of severance when there exists mutually antagonistic defenses. The court, in interpreting Fed.R.Crim.P. 14 which is analogous to Ohio's Crim.R. 14, stated: Mutually antagonistic defenses are not prejudicial per se.Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's discretion. * * * The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in -18- situations not discussed here. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson v. Marsh [(1987), 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176],less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. (Citations omitted). In this case, not only does defendant-appellant fail to demonstrate in any manner that Julius Potter and Dontez White would have provided testimony favorable to defendant-appellant's alibi defense, but the three defendants did, in fact, present alibi defenses. However, the jury chose to believe the testimony and identifications of the victims including Ms. Small who testified in detail that defendant-appellant was one of the gunman who broke into their house and Ms. Small who testified that defendant- appellant was the gunman who raped her. Moreover, the trial court gave the proper instructions relating to multiple defendants and instructed the jury that they had to decide separately the question of guilt or non-guilt of each of the defendants thereby curing any risk of prejudice. Defendant-appellant has failed to meet his burden in establishing good cause why the defendants' trials should have been separated and that the trial court abused its discretion in denying his motion for separate trials. Defendant-appellant's fourth assignment of error is not well taken. Defendant-appellant states as his fifth assignment of error: V. THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO ALL COUNTS OF THE INDICTMENT PURSUANT TO CRIM.R. 29(A) IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION -19- AND ARTICLE 1, SECTION 16, OF THE CONSTITUTION OF THE STATE OF OHIO. Defendant-appellant argues the trial court committed prejudicial error in denying his Crim.R. 29(A) motion for acquittal on all counts. Specifically, defendant-appellant argues that out of the five testifying witnesses, only two identified defendant- appellant. These two identifications were highly unreliable and are insufficient to support his conviction. Under Crim.R. 29, a trial court shall not order an entry of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. A motion for judgment of acquittal under Crim.R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt. State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Therefore, the test an appellate court must apply when reviewing a challenge based on a denial of a motion for acquittal is the same challenge based upon on the sufficiency of the evidence to support a conviction. See State v. Bell (May, 26 1994), Cuyahoga App. No. 65356, unreported. 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 -20- 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. More recently, in State v. Thompkins (1997), 78 Ohio St.3d 380, 386, the Ohio State Supreme Court stated the following with regard to the sufficiency as opposed to the manifest weight of the evidence: With respect to sufficiency of the evidence, sufficiency is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A)(motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain the conviction). In essence, sufficient is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia(1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Defendant-appellant was convicted of the following: One count of aggravated burglary in violation of R.C. 2911.11 (with firearm specification) which provides in pertinent part: (A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply: * * * -21- (2) The offender has a deadly weapon or dangerous ordinance on or about the offender's person or under the offender's control. * * * Five counts of aggravated robbery in violation of R.C. 2911.01 (with firearm specification) which provides in pertinent part: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt of the offense, shall do any of the following: (1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it; * * * Five counts of kidnaping in violation of R.C, 2905.01 (with firearm specification)which states in pertinent part: (A) No person, without privilege to do so, shall knowingly do any of the following: (1) By force or threat, remove another person from the place where the other person is found; (2) By force or threat, restrain the liberty of another person, under the circumstances which create a risk of physical harm to the victim, or place the other person in fear; * * * One count of rape in violation of R.C. 2907.02 (with firearm specification) which states in pertinent part: (2) No person shall engage in sexual conduct with another person when the offender purposely compels the other person to submit by force or threat of force. One count of felonious assault (with firearm specification) in violation of R.C. 2903.11 which states in pertinent part: -22- (A) No person shall knowingly: * * * (2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordinance, as defined in section 2923.11 of the Revised Code. * * * In this case, the jury was presented with the testimony of several victims. Two of the victims identified defendant-appellant as one of the individuals who had forcefully entered the home of Mrs. Simms carrying a gun. Both testified that defendant-appellant was wearing an Indian's T-shirt, light blue jean shorts, and tennis shoes. Both testified defendant-appellant's face was not covered. The victims testified that approximately $3,000 was taken by force and/or the threat of force. The victims testified they were held against their will. One of the victims was hit in the head with the butt of a gun. Moreover, Ms. Small testified that defendant-appellant took her into another bedroom and with a gun in his hand, ordered her to perform fellatio. She also testified that he subsequently stuck his penis inside her vagina. After reviewing the entire record and viewing the evidence in light most favorable to the prosecution, we find any reasonable trier of fact could have found all the essential elements of aggravated burglary, aggravated robbery, kidnaping, rape and felonious assault as charged (along with the firearm specifications) were proved beyond a reasonable doubt. -23- For this reason, defendant-appellant's conviction is not based upon insufficient evidence. Accordingly, the trial court did not err in denying his Crim.R. 29 motion for acquittal. Defendant- appellant's fifth assignment of error is not well taken. Defendant-appellant's sixth assignment of error states: VI. THE JUDGMENTS OF CONVICTION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION. Defendant-appellant argues his conviction was against the manifest weight of the evidence. Specifically, defendant-appellant argues the only police work involved in the matter was in presenting an impermissibly suggestive photo array. When this evidence and the conflicting testimony offered by the witnesses is weighed against the testimony of defendant-appellant's fiance who testified that he was with her the entire night and early morning, defendant-appellant argues it is clear the jury lost its way and created a miscarriage of justice. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex re. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. -24- The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where the Court held that unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. See, also, Thompkins, supra. Upon application of the standards enunciated in Tibbs, the court in 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. Moreover, it is important to note that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. The fact finder, being the jury (in this case) or the trial judge (in a waiver), occupies a superior position in determining credibility. The fact finder can hear and see as well as observe -25- the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness's reaction to exhibits and the like. Determining credibility from a sterile transcript is a herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact finder. As previously discussed in our factual recitation of the case and our disposition of defendant-appellant's fifth assignment of error, we find that after a review of the record, there exists sufficient credible evidence supporting defendant-appellant's conviction. Accordingly, defendant-appellant's sixth assignment error is not well taken. Judgment affirmed. -26- 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 Cuyahoga County 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. ANN DYKE, PRESIDING JUDGE JOHN T. PATTON, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .