COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72341 : STATE OF OHIO : : : Plaintiff-appellee : : : -vs- : JOURNAL ENTRY : AND : OPINION RONALD HICKMAN : : Defendant-appellant : DATE OF ANNOUNCEMENT APRIL 30, 1998 OF DECISION CHARACTER OF PROCEEDING Criminal appeal from Common Pleas Court Case No. 344276. JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: DEFENDANT-APPELLANT: Stephanie Tubbs Jones, Esq. Dean E. DePiero, Esq. Cuyahoga County Prosecutor 11 Berea Commons Dominic DelBalso, Esq. Berea, Ohio 44017 Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MICHAEL J. CORRIGAN, J.: Ronald Hickman, defendant-appellant, appeals from his convictions of the offenses of kidnapping, rape, attempted rape, -2- and having a weapon while under disability, in the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-344276. Defendant appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. On October 24, 1996, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a thirteen-count indictment. The first count of the indictment charged defendant-appellant with kidnapping, in violation of R.C. 2905.01. Counts two through ten of the indictment charged defendant-appellant with rape, in violation of R.C. 2907.02. The eleventh count of the indictment charged defendant-appellant with attempted rape, in violation of R.C. 2923.02 and R.C. 2907.02. The twelfth count of the indictment charged defendant-appellant with having a weapon while under disability, in violation of R.C. 2923.13. The thirteenth and final count of the indictment charged defendant-appellant with rape, in violation of R.C. 2907.02. With the exception of the twelfth count of the indictment, all remaining counts contained a repeat violent offender specification pursuant to R.C. 2929.01(EE) and a firearm specification pursuant to R.C. 2941.145. On October 30, 1996, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all thirteen counts of the indictment. On March 10, 1997, defendant-appellant voluntarily waived his constitutional right to a jury trial only as to count twelve of the indictment and to the repeat violent offender specifications. -3- A jury trial began on March 10, 1997. Christina Davenport, the alleged victim, testified that on October 14, 1997, she was employed as a waitress at Denny's Restaurant located at 6850 Brook Park Road, Cleveland, Ohio. Ms. Davenport stated that, on the night in question, defendant-appellant entered the restaurant, sat at a counter in a non-smoking area and lit a cigarette. Ms. Davenport asked defendant-appellant to move to a counter where smoking was permitted. Defendant-appellant complied and ordered a meal. (T. 42). After Ms. Davenport brought defendant-appellant's order, defendant-appellant moved once again to a secluded corner booth in an area of the restaurant that had been closed that evening as there were not enough servers on duty to handle full capacity. Only two waitresses, a manager and a cook were working that night. The booth at which defendant-appellant sat was blocked from view by a waitress station surrounded by a four and one-half foot high wall. (T. 47). Ms. Davenport eventually located defendant-appellant in the corner booth. Defendant-appellant requested more coffee and his check. When Ms. Davenport returned, defendant-appellant pulled a gun from his waistband and ordered Ms. Davenport to lay down on her side in the booth. (T. 47). At this point, defendant-appellant ordered Ms. Davenport to remove her pants and underwear. Ms. Davenport protested and offered defendant-appellant the money in the cash register but defendant-appellant stated that he did not -4- want money. Defendant-appellant then forcibly raped Ms. Davenport twice in the booth. (T. 48). Soon after, they heard another employee call out Ms. Davenport's name. Defendant-appellant ordered Ms. Davenport to put her pants back on and forced her to leave the restaurant with him. Ms. Davenport testified that the sexual acts with defendant- appellant were not consensual and were the result of defendant- appellant's threat to shoot her and others in the restaurant if she refused. (T. 50, 51). Once outside, defendant-appellant ordered Ms. Davenport into his van. Ms. Davenport left her purse inside the restaurant. (T. 54). Defendant-appellant and Ms. Davenport then drove the van to a gas station where defendant-appellant purchased gasoline and a 40 oz. bottle of beer. (T. 62, 283). Defendant-appellant also told Ms. Davenport to use a public telephone to call Denny's and say that she would not be returning to work due to unspecified family problems. (T. 59, 60). Defendant-appellant was armed with the weapon during this entire time period. Ms. Davenport testified further that defendant-appellant drove her to his mother's house and forced her into a wooded area near the backyard. (T. 65). Defendant-appellant then repeatedly forced himself upon Ms. Davenport, ordering her to assume various positions while he forcibly inserted his penis into her vagina. (T. 65, 69). -5- Soon after, defendant-appellant ordered Ms. Davenport into his mother's backyard where he lay down near a garden. (T. 67). Defendant-appellant once again engaged in forced intercourse with Ms. Davenport. Finally, defendant-appellant ordered Ms. Davenport to perform oral sex upon him. Ms. Davenport refused but defendant- appellant was waving the gun around so she finally relented. (T. 68). After a couple of minutes, Ms. Davenport noticed that defendant-appellant had fallen asleep. Ms. Davenport then left the yard, memorized the license plate number of defendant-appellant's van and fled to a nearby bar called Pinky's where the police were called. (T. 85). Patrolman Robert Kanzig of the Cleveland Police Department testified that he was on duty on October 14, 1996, along with his partner, Patrolman Browning. During the course of the shift, Patrolman Kanzig was dispatched to Pinky's Tavern on West 38th Street to investigate a reported kidnapping and rape. Once at the scene, Patrolman Kanzig interviewed Ms. Davenport, obtained a description of the attacker and searched the area in an effort to locate the individual in question. (T. 127). Patrolman Kanzig and his partner discovered defendant-appellant in the driveway of defendant-appellant's mother's house. The officers ordered defendant-appellant to kneel on the ground and keep his hands visible. As defendant-appellant reluctantly lowered himself to his knees, a 9 millimeter handgun fell out of his waistband and onto the driveway. The weapon was later determined to be unloaded. (T. 135-138). Defendant-appellant was then arrested. At the time of -6- his arrest, defendant-appellant did not dispute that he had been with Ms. Davenport at Denny's and later in the evening, however, defendant-appellant maintained that Ms. Davenport engaged in sexual relations with him of her own volition. (T. 202). Detective Richard Calabreese of the Cleveland Police Sex Crimes Unit testified that he investigated the case and interviewed both Ms. Davenport and defendant-appellant. Defendant-appellant consistently maintained that he had engaged in consensual sex with Ms. Davenport at Denny's and later in his mother's backyard. (T. 225, 226). Defendant-appellant testified on his own behalf. He stated that, on the night in question, he had been extremely upset and was contemplating suicide. For that reason, he obtained a handgun from an acquaintance named Stoney. However, defendant-appellant was unable to purchase ammunition for the gun. (T. 309, 310). Defendant-appellant maintained that he did not have the gun in Denny's nor did he have it on his person while he and Ms. Davenport were in his mother's backyard. Defendant-appellant argued that, although he did engage in sexual acts with Ms. Davenport in Denny's Restaurant and in the backyard of his mother's home, Ms. Davenport voluntarily chose to participate and at no time was force employed. Defendant-appellant argued further that he did not threaten Ms. Davenport or force her to leave her place of employment on the night in question. (T. 322, 324). -7- Lastly, defendant-appellant maintained that he only removed the gun from his van after Ms. Davenport had left. At that time, the Cleveland Police arrived and discovered the weapon in defendant-appellant's possession. (T. 363). At the conclusion of the case, the jury found defendant- appellant guilty of one count of kidnapping in violation of R.C. 2905.01 and further found that the victim was not released in a safe place unharmed; nine counts of rape in violation of R.C. 2907.02; and one count of attempted rape in violation of R.C. 2923.02 and R.C. 2907.02. The jury determined that, on each of the above counts, defendant-appellant had a firearm on or about his person. The trial court found defendant-appellant guilty of having a weapon while under disability in violation of R.C. 2923.13. On March 19, 1997, defendant-appellant was sentenced by the trial court. On April 14, 1997, defendant-appellant filed a timely notice of appeal from his judgment of conviction and sentence in the trial court. Defendant-appellant's sole assignment of error on appeal states: APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant maintains, through his sole assignment of error, that his convictions of the offenses of kidnapping, rape and attempted rape are contrary to the manifest weight of the evidence. Specifically, defendant-appellant argues that the evidence failed to demonstrate that defendant-appellant restrained Ms. Davenport's liberty in any way or used force or the threat of -8- force to induce Ms. Davenport to engage in sexual acts against her will on October 14, 1997. 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 75. Moreover, the weight of the evidence and the 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 of the evidence must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; -9- 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. In State v. Thompkins (1997), 78 Ohio St.3d 380, the Ohio Supreme Court further discussed the concept of manifest weight of the evidence. The court stated in pertinent part: Weight of the evidence concerns the inclination of the greater amount of credible evidence offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's, supra, at 1594. Id. at 387. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. In this case, direct and circumstantial evidence was presented by way of the testimony of the victim, Ms. Christina Davenport, and Patrolman Robert Kanzig of the Cleveland Police Department in an effort to establish the element of the offenses of kidnapping, rape and attempted rape. Ms. Davenport testified at length regarding the -10- events of October 14, 1997 during which she was forced to engage in sexual conduct with defendant-appellant in a secluded corner booth in a closed section of Denny's Restaurant. Ms. Davenport testified further that she was forced to leave the restaurant under duress at gunpoint, then driven against her will, to a secluded area in defendant-appellant's mother's backyard where she was forced to engage in sexual conduct numerous times, once again at gunpoint. It was only after defendant-appellant fell asleep that Ms. Davenport was able to escape, go to a nearby bar and telephone the police. Patrolman Kanzig testified that, at the time of defendant- appellant's arrest, a 9 millimeter handgun was discovered on defendant-appellant's person and defendant-appellant's physical description matched that of the attacker as provided by Ms. Davenport. Since the weight to be given the evidence and the credibility of the witnesses are primarily matters for the finder of fact to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact-finder, State v. Grant (1993), 67 Ohio St.3d 185, this court cannot now say that the verdict in this case is against the manifest weight of the evidence. Accordingly, a review of the record demonstrates that the fact-finder did not lose its way and create a manifest miscarriage of justice by finding defendant-appellant guilty of kidnapping, rape, and attempted rape. Defendant-appellant's convictions were supported by substantial, credible, evidence upon -11- which the trier of fact could reasonably conclude that the elements of the indicted offenses had been proven beyond a reasonable doubt. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -12- 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. TIMOTHY MCMONAGLE, PRESIDING JUDGE JAMES D. SWEENEY, 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 .