COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76620 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CURTIS SANDERS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 9, 2000 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-367,847 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor DEBORAH R. NAIMAN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: BARTHOLOMEW M. CATERINO Attorney at Law 3550 Warrensville Center Road Shaker Heights, Ohio 44122 KENNETH A. ROCCO, J.: -2- Defendant-appellant Curtis Sanders appeals from his convic- tions after a jury trial on one count of kidnapping and two counts of rape. All the counts involve a victim under the age of thirteen. Appellant contends the state presented insufficient evidence to identify him as one of the perpetrators of the crimes. Appellant also contends the trial court improperly denied his motion for a separate trial. After a thorough review of the record, this court does not agree with appellant's contentions; therefore, his convictions and sentences are affirmed. Appellant's convictions stem from an incident that occurred over the course of September 6 through September 7, 1998. On the evening of September 6, the victim, eleven years old at the time, was preparing to accompany her mother to evening services at a nearby church. Since the mother also taught religion classes there, the family had done this many times previously. On this evening, the victim's older brother remained at home to finish homework. The victim, who was mildly mentally retarded but looked more mature than her years, was not yet properly dressed for the services; therefore, her mother told her to change her clothes before coming along. Her mother then preceded the victim on the route the family always traveled to church, occasionally look[ing] back 1for her. However, after the victim's brother saw her leave home, the victim failed either to meet her mother or to 1Quotes indicate testimony given by a witness at appellant's trial. -3- arrive at church. The victim's mother eventually reported her "missing." The victim had left her home and proceeded to walk the familiar route. As she passed through the Glenville Recreation Center complex, she was approached by a "light-skinned" young man, later identified as Safabian Stearns. Stearns asked the victim if she wanted to "make some money." Although she refused, Stearns managed to cause her to accompany him rather than permitting her to continue on her way. Stearns took the victim to a house located nearby at 617 East 123rd Street. There, he encountered appellant, whom he called "Unc,"2 and another older man, William Kimbrough, Jr. The evidence demonstrated appellant used the house both to distribute crack cocaine to his clientele and to collect payment for his services; the payment from female customers often included sexual favors. Kimbrough, Jr. obtained crack cocaine from appellant in exchange for "cooking" powdered cocaine into that form. Appellant also occasionally permitted Kimbrough, Jr. to take one of the young women who came to the house for drugs; Kimbrough, Jr. could then make love to her or whatever. Soon after the victim's arrival at the house, Stearns and appellant play[ed] with *** her breasts and stuff. Appellant disrobed her; she then was compelled to suck they penis. Appellant had sex with her by placing his penis into her private part. 2Appellant admitted this was his nickname. -4- Kimbrough, Jr. observed some of this activity through a window as he sat smoking cocaine on the home's front porch. The victim remained at the home for some time before appellant told Kimbrough to take her. Kimbrough placed her into his vehicle and drove her to his home across the street at 626 East 123rd. Acting surreptitiously in order to conceal the victim's presence from his elderly mother and her husband, Kimbrough led the victim into the house and upstairs to his bedroom. He then closed the door, secured it with a screwdriver, and proceeded to rape her. When he finished, he permitted her to clean herself with a "rag" before leading her back outdoors. At that time, Kimbrough's son, William Kimbrough III, arrived in his vehicle. Kimbrough, Jr. drove away, leaving the victim with his son, who placed her in his vehicle, drove to a nearby parking lot, parked, then placed a condom on himself and raped the victim. When he had finished, he returned the victim to appellant's house. By that time, the men were uninterested in the victim. She remained a time, realized the men were no longer concerned with her, then walked away. As she made her way along St. Clair Avenue, she was observed by Cleveland Police Officer Joseph Mitchell, who recognized her description from the missing persons report. Mitchell took the victim to a hospital for treatment after she informed him she had been raped. The victim gave descriptions of her attackers to the nurse- practitioner who conducted the initial assessment. The victim included names and relationships she had heard spoken. Thus, she -5- referred to one of the men as the uncle. This information was conveyed to the police. After the medical exam was completed, the victim was able to direct Mitchell to the two houses where the events took place. A few days later, she repeated all the information to a detective. Search warrants were obtained for the two houses. During the ensuing searches, photographs of the homes' interiors were taken; the arrangement and decor of the rooms matched the victim's descriptions of them. Eventually, the victim chose two of her attackers, viz., Stearns and William Kimbrough III, from separate "line-ups." The victim identified Kimbrough, Jr. from a photographic array. Addi- tionally, analysis of semen stains on the victim's clothing indicated the stains had been produced by Kimbrough, Jr. Appellant subsequently was indicted with the three other men on a multi-count indictment. On count one, appellant was indicted together with Stearns and the two Kimbroughs on one count of kidnapping, R.C. 2905.01(A)(4). This count contained both a sexual motivation and a sexually violent predator specification. Of the remaining counts, only counts six, seven and eight pertained to appellant, individually charging him with three counts of rape, R.C. 2907.02(A)(1)(b) and (A)(2), with sexually violent predator specifications. Appellant retained counsel to represent him after entering pleas of not guilty to the charges. -6- Appellant, Stearns and William Kimbrough III were tried together before a jury. As part of a plea arrangement made in his case, William Kimbrough, Jr. testified as a witness for the state. The state also presented the testimony of the victim's mother, the victim, Mitchell, the nurse-practitioner, the detective, and other forensic examiners who had investigated the case. The state's phy- sical evidence included the photographs of the two houses to which the victim had been taken. After Stearns had testified in the case, appellant testified in his own behalf. He admitted Stearns had brought the victim to 617 East 123rd Street, admitted meeting the victim, and admitted she had been taken from the house by Kimbrough, Jr. Appellant asserted these events had taken place on a day earlier than the state's witnesses indicated. Appellant also denied he had engaged in any sexual activity with the victim. Ultimately, the jury convicted appellant of kidnapping with a sexual motivation specification and two counts of forcible rape of a minor.3The jury acquitted appellant of the other count of rape. Appellant had requested the sexually violent predator specification to be tried separately to the trial court. After a hearing on the matter, the trial court found appellant guilty. 3Appellant's two co-defendants also were convicted of the charges against them. This court previously has affirmed both co- defendants' convictions in State v. William Kimbrough III (Aug. 17, 2000), Cuyahoga App. No. 76517, unreported, and State v. Stearns (July 13, 2000), Cuyahoga App. No. 76513, unreported. -7- The trial court sentenced appellant to terms of incarceration as follows: five years on the kidnapping count, merged with life without the possibility of parole on the two rape counts. Appellant has filed a timely appeal of his convictions. Rather than setting forth assignments of error as required by App.R. 16(A)(3), appellant presents the following four state- ment[s] of the issues presented for review: I. WHETHER APPELLEE THE STATE OF OHIO HAD SUFFICIENT PHYSICAL IDENTIFICATION OF APPELLANT CURTIS SANDERS, THROUGH USE OF A LINE-UP. II. WHETHER THE [VICTIM] FOR THE APPELLEE THE STATE OF OHIO WAS ABLE TO IDENTIFY THE APPELLANT CURTIS SANDERS. III. WHETHER APPELLEE THE STATE OF OHIO HAD SUFFICIENT MEDICAL-FORENSIC IDENTIFICA- TION OF APPELLANT CURTIS SANDERS. IV. THAT FAILURE TO SEVER THE DEFENDANTS OF CASE NO. CR-367847 FOR PURPOSE OF TRIAL PREJUDICED ALL OTHER PARTIES INVOLVED AGAINST THE APPELLANT CURTIS SANDERS. In his first three issues, appellant essentially argues the state presented insufficient evidence to support his convictions, contending the identification of him as one of the perpetrators of the crimes was not adequately established either by the victim or -8- by other methods available to law enforcement personnel.4 This court disagrees. When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any rational factfinder viewing the evidence in a light most favorable to the state could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Jenks (1992), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact. Jenks, 61 Ohio St.3d at 273, 574 N.E.2d at 503. See, also, State v. Bridgeman (1978), 55 Ohio St.3d 261, 9 O.O.3d 401, 381 N.E.2d 184, syllabus. State v. Dennis (1997), 79 Ohio St.3d 421 at 430-431. In this case, neither a line-up nor other forensic corro- boration of the victim's testimony was necessary to prove appel- lant's identity as one of the perpetrators of the crimes. The victim described appellant as one of the men who had attacked her both to the nurse-practitioner and to Mitchell and consistently referred to him as the uncle. The victim then accurately located appellant's house. Police investigation revealed appellant's use of both the house and a nickname similar to the victim's reference 4Appellant's arguments with respect to his first three issues are supported by no legal authority. App.R. 16(A)(7) requires the brief of an appellant to contain an argument with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities [and] statutes *** on which appellant relies. *** (Emphasis added.) Notwithstanding the provision of App.R. 12(A)(2), in the interest of deciding appeals on their merits when appropriate, this court in the exercise of its discretion will overlook appellant's omission. -9- to him. The victim's description of appellant's restraint of her and his sexual activities with her, moreover, was corroborated by the testimony of Kimbrough, Jr. Finally, the victim identified appellant at trial as one of her attackers. From the foregoing, a rational factfinder could find appellant guilty of the offenses of kidnapping and rape. State v. Gingell (1982), 7 Ohio App.3d 364; State v. Byarse (Sep. 4, 1997), Cuyahoga App. No. 70282, unreported. Since the state presented sufficient evidence of appellant's identity as one of the perpetrators of the crimes against the victim, appellant's first three issues lack merit. They are accordingly overruled. Citing Crim.R. 14, appellant further argues in his fourth issue the trial court erred in denying his motion for a trial separate from that of his co-defendants. Appellant contends the jury was improperly influenced by his co-defendants' statements made after their arrests. This argument is unpersuasive. Joinder of defendants, which is expressly permitted by Crim.R. 8(B), is favored in the law because it 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 at 225. Thus, the trial court's denial of a motion for severance will be upheld unless appellant can demonstrate the trial court abused its discretion. State v. Franklin (1991), 62 Ohio St.3d 118; State v. Torres (1981), 66 Ohio St.2d 340. A review of -10- the record in this case fails to indicate any abuse of discretion occurred. When appellant raised the issue of joinder, it was the state's position that evidence of the crimes was simple and direct. See State v. Roberts (1980), 62 Ohio St.2d 170. The incidents occurred within a small area, the time period during which the incidents took place was uninterrupted, each of the defendants was connected to the others by virtue of the relationships between them, and each defendant was alleged to have played a sequential role in the incidents; therefore, the state's position was justified. Id.; State v. Brooks (1989), 44 Ohio St.3d 185. Moreover, in view of the difficulty the victim had in recounting her experiences, re- quiring her testimony at more than one trial would have been a great hardship. Appellant intimates in his discussion of this issue his defense and that each of his co-defendants was antagonistic; however, a review of his co-defendants' statements and testimony does not support his claim. None of them asserted he had seen appellant either restraining or sexually assaulting the victim. State v. Daniels (1993), 92 Ohio App.3d 473. Moreover, only Stearns and Kimbrough, Jr. admitted they had committed sexual acts with the victim. In view of the compelling reasons to conduct a single trial, appellant cannot demonstrate permitting the jury to hear a few negative comments made by his co-defendants constitutes an abuse of the trial court's discretion. State v. Thompson (1998), 127 Ohio -11- App. 3d 511; State v. Loper (Dec. 17, 1998), Cuyahoga App. No. 73578, unreported. For these reasons, the trial court's denial of appellant's motion for a separate trial was not improper. Accordingly, appel- lant's fourth issue is overruled. Appellant's convictions and sentences are affirmed. -12- 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 Cuyahoga County Court of Common Pleas 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 E. McMONAGLE, P.J. and MICHAEL J. CORRIGAN, J. CONCUR JUDGE KENNETH A. ROCCO 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .