COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73896 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : RICHARD E. HARRIS : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-353989 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: MICHAEL S. NOLAN, ESQ. ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PATRICIA J. SMITH, ESQ. 4403 St. Clair Avenue Cleveland, Ohio 44103 DYKE, J.: Appellant, Richard E. Harris, is appealing his conviction for one count of rape. He contends that the conviction was against the weight of the evidence and he was improperly sentenced. For the -2- following reasons, we affirm. The victim, Wanda Harris, testified as follows: From 1992 to 1994, she dated appellant. After they broke up, Wanda kept in contact with appellant, but she did not have sex with him. Wanda testified that on June 21, 1997, at 5:45 a.m., appellant asked to see her because he was depressed. Wanda went to appellant's apartment. Appellant said his thirteen year old son was in the front room sleeping. Wanda stated that she and appellant went into a bedroom. Wanda sat down on the bed. Appellant tried to rub Wanda's back and legs. Wanda pushed his hands away. She told appellant she was unable to have sex because of medical reasons. Appellant said he wanted to get back together with Wanda, but Wanda refused. According to Wanda, appellant slapped the left side of her face very hard. Appellant said, Take off your motherf***ing clothes . Wanda started taking off her clothes. Out of fear, she urinated on herself. Appellant pulled off her clothes. Appellant pushed Wanda down on the bed and forced his penis into her mouth. Then, he forced his penis into her vagina. Appellant took Wanda to the bathroom, where she threw up. He took her back to the bedroom and had vaginal and oral sex with her. He also performed oral sex on her. The whole time Wanda asked him to stop and let her go. The victim testified that appellant finally decided to let her go. Appellant asked Wanda to beat him with a hammer. Appellant said that what he did was wrong. Wanda testified that she drove home, although the police -3- station was closer to appellant's apartment. She took a bath because she felt dirty. Wanda went to the police station and then to the hospital. She took the underwear she had on during the encounter with appellant to the hospital. Wanda had a black eye and was emotionally hurt after the incident. A picture taken of her on June 25, 1997 demonstrated that Wanda's face was swollen on the left side. On cross-examination, Wanda stated that none of her clothes were torn in the encounter. She did not scream for help, although there were other apartments on the floor, and she believed appellant's son was home. She did not suffer any vaginal trauma. Tina Wolff of the Cleveland Police scientific investigation unit testified that the vaginal and oral swabs, and underpants tested positive for semen. The underpants were stained yellow, consistent with urine. Officer Majorie Higgins of the Cleveland Police testified that she interviewed Wanda on June 22, 1997. Wanda's eye was swollen and puffy. Wanda's statement in the medical records was consistent with her testimony. The medical report stated that Wanda was rocking back and forth, shaking and crying. The appellant, Richard Harris, testified as follows: After he and Wanda broke up in 1994, they continued to have sexual relations about twice a month. In April, 1997, Wanda loaned him $1,500. Harris stated that Wanda came to his apartment on June 22, 1997, because she wanted her money back. Appellant had been -4- sleeping. He let Wanda in, and then he got back into bed. Wanda was sitting on the bed, asking for her money. Appellant said he could not pay her. According to Harris, Wanda took off her clothes and they had consensual sex. Wanda asked for the money again, and appellant said he didn't have any money. Wanda became hysterical and appellant grabbed her to calm her down. Wanda may have hit herself on the door when he was grabbing her. The jury retired for deliberations. The jury informed the judge that they had a 9-3 division, and could not reach a unanimous decision. The judge read the Howard instruction to the jury. Then, the jury returned a verdict of guilty of one count of rape and not guilty as to the other four counts of rape. At the sentencing hearing, it was noted that appellant had a 1972 conviction for theft. After the trial for rape, appellant pled guilty to an unrelated theft offense. The victim did not suffer any long-term physical injury, and there was no evidence she sought treatment from a mental health professional. Appellant expressed remorse. Appellant was sentenced to nine years for the rape. Rape, a first degree felony, carries a sentence of three, four, five, six, seven, eight, nine or ten years. R.C. 2907.02, 2929.14. I. Appellant's first assignment of error states: THE RECORD DOES NOT SUPPORT A SENTENCE OF NINE YEARS AS THE EVIDENCE DOES NOT ESTABLISH THAT THIS OFFENSE IS OF A MORE SERIOUS NATURE THAN CONDUCT NORMALLY CONSTITUTING THE OFFENSE OF RAPE. -5- An appellate court can only reverse a sentence if the appellate court clearly and convincingly finds that the record does not support the sentence, or that the sentence is contrary to law. R.C. 2953.08(G). The trial court must consider the factors pertaining to seriousness of the conduct and recidivism set forth in R.C. 2929.12, along with other factors relevant to achieving the purposes of sentencing. R.C. 2929.12(A). The trial court has broad discretion in determining the most effective way to uphold the objectives of sentencing. R.C. 2929.12(A). The purposes of sentencing are to protect the public from future crime and punish the offender. R.C. 2929.11. Appellant contends the trial court failed to properly apply the sentencing factors set out in R.C. 2929.12. Applying R.C. 2929.12(D) and (E) to this case, the evidence did not indicate that appellant was likely to commit future crimes. R.C. 2929.12(B) states: The sentencing court shall consider all of the following that apply regarding the offender, offense or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense: . . . (2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense. . . . (6) The offender's relationship with the victim facilitated the offense . . . The offender's relationship with the victim facilitated the offense. R.C. 2929.12(B)(6). The victim suffered some physical harm, but did not suffer serious physical harm. See R.C. -6- 2901.01(A)(5). The victim testified that she was emotionally harmed, and the victim was crying during her testimony. The medical records demonstrated that the victim was emotionally harmed. The evidence was sufficient to support that the victim suffered serious psychological harm. R.C. 2929.12(B)(2), See State v. Bowles (April 28, 1998), Franklin App. No. 97APA09-1213, unreported. Appellant argues that his conduct was less serious because he did not expect to cause physical harm to the victim. R.C. 2929.12(C)(3). There was evidence on the record that appellant did expect to cause physical harm. See State v. McConnaughey (Mar. 4, 1998), Athens App. No. 97 CA 39, unreported. Appellant also argues that there was clearly a compromise verdict. See 2929.12(C)(4). The trial court could reject appellant's argument that the sex was consensual. Even considering the compromise verdict, we can not say that the trial court erred in finding that this factor was outweighed by the physical and psychological harm to the victim and the fact that the offender's relationship to the victim facilitated the offense. See State v. Rose (Sept. 15, 1997), Clermont App. No. CA96-11-106, unreported. The court may have also considered the purpose of punishing the offender in formulating the sentence. We can not say that the sentence was contrary to law or that there was clear and convincing evidence that the sentence was not supported by the record. Accordingly, this assignment of error is overruled. -7- II. Appellant's second assignment of error states: The jury verdict finding the appellant guilty of one count of rape was against the manifest weight of the evidence. In determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, citing Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. The court should consider whether the evidence is credible or incredible, reliable or unreliable, certain or uncertain, conflicting, fragmentary; whether a witness was impeached and whether a witness had an interest in testifying. State v. Mattison (1985), 23 Ohio App.3d 10. The credibility of a witness is primarily an issue for the trier of fact, who observed the witness in person. State v. Anthill (1964), 176 Ohio St. 61, State v. Dehass (1967), 10 Ohio St.2d 230. Appellant contends that the compromised verdict demonstrates that the verdict was against the weight of the evidence. Where the defendant is convicted on one count and acquitted on others, the conviction will generally be upheld irrespective of its rational incompatibility with the acquittal. State v. Hicks (1989), 43 Ohio St.3d 72, 78, State v. Adams (1978), 53 Ohio St.2d 223, 228. -8- Appellant also argues that his testimony was credible and the victim's testimony was not credible. While there were some questionable aspects of Wanda's testimony, overall, her testimony was consistent, certain and not fragmentary. Appellant's testimony that Wanda had sex with him after he said he wouldn't pay the debt, and then later became hysterical about the debt is not necessarily credible. As stated above, it is primarily for the trier of fact to judge the credibility of witnesses. See State v. Waddy (1992), 63 Ohio St.3d 424. The jury did not clearly lose its way in finding that the victim's testimony was more credible. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -9- 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, P.J., AND SPELLACY, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .