COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76673 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : : AND -vs- : : OPINION JOSEPH DRAKE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 9, 2000 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-367352 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For Plaintiff-Appellee: William D. Mason Cuyahoga County Prosecutor George Rukovena Assistant Prosecutor 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 For Defendant-Appellant: Darin Thompson Assistant Public Defender 1200 West Third St. N.W. 100 Lakeside Place Cleveland, Ohio 44113 ANNE L. KILBANE, J.: This is an appeal from a jury verdict following a trial before Judge Nancy Margaret Russo. Appellant Joseph Drake, a/k/a Drake Joseph claims that his convictions for one count of rape, pursuant -2- to R.C. 2907.02, and two counts of gross sexual imposition, pursuant to R.C. 2907.05 are against the manifest weight of the evidence. We disagree and affirm. We glean the following from the transcript. In the mid- afternoon of September 5, 1998, the fourteen-year-old female victim, her mother and twelve-year-old sister arrived at the Cleveland home of Richard Brock, her mother's boyfriend, to prepare for a Labor Day cookout to be held the next day. Brock lived in the home with his daughters, seventeen-year-old Sonya and five- year-old Myesha. The victim helped her mother bring food items into the house from the car and Brock, Myesha, and Brock's neighbor, seventeen-year-old Nathan Marono, cleaned Brock's home, eventually finishing around 11:00 p.m. At around 11:30 p.m., everyone congregated in Brock's basement recreation room to watch a movie. Marono admitted that, by this time, I wasn't too sober. By 12:30 or 1:00 a.m., after everyone had fallen asleep, the victim and Marono awoke when they heard Sonya and Drake, her twenty-four-year-old boyfriend, walk in upstairs. According to Marono, the four talked in the kitchen for about ten minutes and, although he could not remember whether anyone was drinking, the victim indicated that she, Sonya, and Drake were drinking gin and juice and Sonya admitted making herself and the victim a drink. The victim had not met Sonya before, so the two went into Sonya's bedroom, which was located off of the kitchen and living room, to talk while Marono and Drake talked at the dining room table. Marono and Drake then joined the girls in -3- the bedroom where they talked and watched television. According to Drake, the victim asked him to get Marono to leave her alone after Marono tried to scoot closer to her and touch her. By 2:00 a.m., Drake had fallen asleep on Sonya's bed. The victim said she was not intoxicated, but she believed that Drake was because his speech was slurred and he fell asleep real fast. Both Drake and Sonya, however, denied that he was intoxicated, although Dake admitted having two beers earlier in the evening. Marono left the bedroom thinking he was going to be sick. After leaving the bathroom, he went to the living room and fell asleep on a love seat. When Sonya asked the victim where she wanted to sleep, she chose the living room sofa located about ten feet across the room from Marono. Sonya gave the victim a blanket and the remote control for the television and by about 3:30 a.m., the victim had fallen asleep with the television on. Sonya testified that she awoke when she felt Drake urinating in the bed, that he then went to the corner of the room and urinated and was sleepwalking and could not be awakened. Drake claimed he would sleepwalk about twice a month. She was very angry and finally managed to get Drake to the bathroom. After he left her bedroom, Sonya locked the door, heard the toilet flush and footsteps go by her door. She claimed she then heard Drake turn off the television in the living room and then return to the door outside of her room. After falling asleep, the next thing the victim remembered was waking up and realizing Drake was on top of her. She testified that -4- she was being raped and he was kissing and fondling her breasts and neck. When she told him to get off, he responded that everything was going to be okay. She did not scream or call for help but only tried to lean forward to push him off, and she eventually succeeded after two or three minutes. She then told him that she did not need this right now. As Drake tried to put her sweat pants, that were on the floor, back on her, he told her that Marono was going to make everything better. The victim had no idea what he was talking about and, when she told him to stop, he got up and walked back to Sonya's bedroom. She heard him call to Sonya, asking her to let him in. Marono testified he woke up and heard the victim say, Come on, get off me. I don't need this right now. He did not see Drake sexually attack the victim only that he saw him physically get up and move away from the sofa. Marono said Drake then went to Sonya's bedroom where, after knocking on the door, she let him in. In his testimony Drake denied the victim's accusations. He said that after using the bathroom, he went to the living room, saw Marono sleeping on the love seat and the victim sleeping on the couch, he turned off the television and went immediately to Sonya's door where, for about three minutes, he stood rapping on the door, trying to gain entrance. He claimed that while he stood there, he saw the victim get up and walk past him. Sonya said she did not answer the door right away because she was still mad but, after about a minute of listening to Drake plead to get in, she opened the door and he returned to the bed. She -5- said she had heard no commotion coming from the living room. The victim stated she wrapped herself in a blanket, without replacing her sweat pants, and went to the basement. As she walked through the kitchen, she saw Drake knocking on the bedroom door, asking Sonya to let him in. She said she was confused and crying and, when she reached the basement, she told Brock and her mother what happened. Brock described her as crying and shaking, and wearing nothing on under the blanket. He also admitted that he did not hear any commotion coming from the living room and was awakened only by the victim. Sonya said that her father woke her up, asked her to come to the basement and there told her about the victim's accusations. They went upstairs and Brock woke Drake and confronted him with the victim's accusations. Drake was surprised and denied the accusations but, according to Brock, suggested the victim be taken to the hospital. After the victim, her mother and Brock left for the hospital, Drake and Sonya returned to Sonya's bedroom. Marono admitted that he was surprised to learn that Drake had sexually attacked the victim. The victim arrived at the emergency room at Marymount Hospital at 6:50 a.m. where the doctors performed a pelvic examination and Theresa Spark, a registered nurse, assisted in the administration of the rape kit. Spark testified that the victim complained that her stomach hurts and that she had been penetrated vaginally. She noted the girl was quiet, withdrawn, and tearful, and [did] not want physical touch by mom and had no scratches or bruising -6- from the attack. The hospital retained the victim's clothing for analysis by the police forensic specialists. Around 7:00 a.m. Officer Paul Burgio of the Cleveland Police interviewed the victim at the hospital, describing her as hysterical, crying and, after questioning, concluded that she had been raped. He also interviewed the victim's mother and Brock, separately, while at the hospital and obtained Drake's name as a suspect. Officer Burgio and Brock returned to the Brock home around 8:30 a.m. and, when Brock knocked on Sonya's bedroom door, both she and Drake appeared. Officer Burgio interviewed Sonya and Marono, and then arrested Drake. Detective Karl Lessman, of the Cleveland Police Department sex crimes and child abuse unit, spoke to Drake at police headquarters and described him as cooperative. According to Detective Lessman, Drake told him that he had passed out on Sonya's bed, that she ordered him out of the room because he had urinated on the floor, and she locked the door. Drake said he had stood by the door for five minutes, knocking on it and trying to get in and, as he stood there, a girl in a blanket walked by him and went downstairs. Sonya let him in the room and, shortly thereafter, the victim's mother and Brock came into the room and confronted him. According to Detective Lessman, Drake denied committing a rape, saying he was intoxicated; Drake, however, denied telling Lessman that he was intoxicated. Detective Lessman also discussed the specifics of rape evidence with Drake: And he said, well he was so drunk he doesn't -7- remember doing it, he says but it could have happened but he doesn't think he did it. Later, Detective Lessman quoted Drake as saying, I was drunk. It could have happened, but it didn't. The victim spent the remainder of the day at Brock's home, the Labor Day cookout went forward with about 20 guests and, according to Brock, the victim socialized with the others. Joseph Serowik, a civilian scientific examiner in the forensic science laboratory of the Cleveland Police Department, examined the contents of the rape kit, swabbing, slides and them victim's clothing and found them negative for semen, blood or spermatazoa. On April 27, 1999, and the jury returned verdicts of guilty on all one count of rape, and two counts of gross sexual imposition. Drake was sentenced to five years imprisonment on count one and 18 months each on counts two and three to run concurrent with each other. Drake asserts a single assignment of error on appeal: APPELLANT'S CONVICTIONS FOR RAPE AND GROSS SEXUAL IMPOSITION MUST BE REVERSED AS THEY ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE Drake contends that the testimony did not support allegations of rape and that, indeed, supports his position that any sexual conduct with the victim was inherently improbable. He points out that the victim said she woke only after she was undressed and had been penetrated but there was no medical or scientific evidence of any sexual assault. He stresses that his alleged assault occurred within 10 feet of Marono who said he was unaware of what happened and, similarly, Sonya Brock testified she would have been able to -8- hear any struggle taking place in the living room but did not. Drake also claims that his actions after the alleged assault (i.e., remaining on the scene, answering police questions, suggesting a scientific investigation) show his innocence in the matter while the victim's actions (i.e., attending a Labor Day cookout with Drake's supporters present) contrasts strongly with her claim that a rape occurred. The state counters Drake's argument, pointing out that the victim's testimony established every element of the offenses. The Supreme Court addressed the standard of review for a challenge to the manifest weight of the evidence in State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. 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 [Law Dictionary (6th ed. 1990)] at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs [v. Florida (1982)], 457 U.S. [31] at 42, 102 S.Ct. [2211] at 2218, 72 L.Ed.2d [652] at 661.[1] See, also, State v. Martin(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ("The court, reviewing the entire record, weighs the evidence and all reasonable 1Contra State v. Prim (1999), 134 Ohio App.3 142, 159, 730 N.E.2d 455. ( An appellate court does not and cannot sit as the `thirteenth juror' when reviewing a claim based upon the weight of the evidence. ). -9- inferences, considers the credibility of 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction."). [Id. at 387.] [T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts and, as such, a reviewing court must accord due deference to the decision by the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus; see Thompkins, 78 Ohio St.3d at 390-391 (Cook and Lundberg Stratton, JJ., concurring separately) ( A court reviewing questions of weight is not required to view the evidence in a light most favorable to the prosecution, but may consider and weigh all of the evidence produced at trial. The only special deference given in a manifest-weight review attaches to the conclusion reached by the trier of fact. ). The evidence presented by both the prosecution and defense is relatively consistent, and Drake even admitted his presence in the living room in the early morning hours of September 6, 1998. After weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we cannot conclude that the jury clearly lost its way in resolving conflicts in the evidence and created a manifest miscarriage of justice. The evidence does not `weigh[] heavily against conviction' that this court would be required to reverse the judgment and order a new trial. Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio -10- App.3d at 175. Judgment affirmed. -11- It is ordered that the appellee recover from appellant its costs herein taxed. 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 convictions 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. JUDGE ANNE L. KILBANE JAMES D. SWEENEY, P.J., AND JAMES PORTER, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE CONCURRING OPINIONS. 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). -12- COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76673 STATE OF OHIO : : Plaintiff-Appellee : : C O N C U R R I N G -vs- : : O P I N I O N JOSEPH DRAKE : : Defendant-Appellant : DATE: NOVEMBER 9, 2000 JAMES M. PORTER, J., CONCURRING IN JUDGMENT ONLY: I concur in judgment only because the majority opinion has unnecessarily identified the proper name of the trial judge below in contravention of this Court's time-honored practice and Loc.App. Rule 22(C) of this Court which states that: Opinions of the Court will not identify or make reference by proper name to the trial judge, magistrate *** unless such reference is essential to clarify or explain the role of such person in the course of said proceedings. (Eff. July 25, 2000). See concurring opinions of Judges Patton and Spellacy in Julia Miller v. Gary O. Miller (Aug. 17, 2000), Cuyahoga App. Nos. 75622/23 and authorities cited therein. -13- COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 76673 STATE OF OHIO : : Plaintiff-Appellee : C O N C U R R I N G : -vs- : O P I N I O N : JOSEPH DRAKE : : Defendant-Appellant : DATE: NOVEMBER 9, 2000 SWEENEY, JAMES D., J., CONCURRING: I concur in judgment only and cite to concurring opinions in State v. Thomas, (May 13, 1999), Cuyahoga App. Nos. 72536 and 72537, unreported, and Garnett v. Garnett (Sept. 16, 1999), Cuyahoga App. No. 75225, unreported, at 3-4, and Loc.App.R. 22(C). .