[Cite as State v. Moore,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98178

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

RICARDO MOORE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-553938

BEFORE: Jones, J., Boyle, P.J., and Keough, J.

RELEASED AND JOURNALIZED: December 13, 2012 ATTORNEY FOR APPELLANT

Richard A. Neff 614 W. Superior Avenue The Rockefeller Building Suite 1300 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Scott Zarzycki Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:

{¶1} Defendant-appellant Ricardo Moore appeals his conviction for kidnapping

and gross sexual imposition. We affirm.

I. Procedural History and Facts

{¶2} In September 2011, Moore was charged with one count of kidnapping, one

count of rape, and two counts of gross sexual imposition. In February 2012, Moore

waived his right to a jury trial, and the case proceeded to a bench trial.

{¶3} The trial testimony established the following facts. On August 17, 2011,

Rosa Calvo, who resided with her fiancé Jonathan Wilbraham, was awakened at

approximately 2:00 a.m. by a woman screaming “no, stop, help.” Calvo looked out of

her window and saw the victim and Moore struggling. According to Calvo, both the

victim and Moore were on their knees and the victim was trying to get away as Moore

pulled on her pants. Calvo testified that she then saw Moore pull the victim’s pants

down and “tear” off her underwear. According to Calvo, it then appeared that Moore

got on top of the victim and held her down. The victim continued screaming “stop, get

off of me, no, help.”

{¶4} Wilbraham also witnessed part of the incident and testified that the victim

screaming “help, get away from me” woke him up too. Upon looking out of a window,

Wilbraham saw Moore leaning over the victim as she lay on the ground. Wilbraham

called the police, and as he was explaining the incident to the dispatcher, a police officer

arrived on the scene. {¶5} The officer, Ismael Quintana, testified that he was doing routine patrol of the

area when he heard a woman screaming. He then saw the victim on the ground and

Moore on top of her. As the officer approached, he saw the victim trying to fight off

Moore, and saw that her shorts were down to her knees, her genitals were exposed, and

she was lying on her back. The officer pulled Moore off of the victim.

{¶6} The victim reported to Officer Quintana that Moore assaulted her, pulled her

pants down, and tried to digitally penetrate her anus.

{¶7} After being advised of his Miranda rights, Moore reported to the officer that

he and the victim had been together that evening smoking his crack cocaine and he

thought the victim owed him a sexual favor in return.

{¶8} The victim testified and admitted to doing drugs with Moore that evening.

At the end of the evening, Moore and another male were giving her a ride home; Moore

was in the front passenger seat, the other male was driving, and the victim was in the

backseat. The victim testified that during the ride, Moore would repeatedly reach back

to “grab and touch” her thighs and breasts. The victim noticed that the driver had passed

the area where her home was. When the driver slowed down, the victim opened her

door to exit; Moore grabbed her arm, but she managed to escape.

{¶9} The victim started walking down the street, and soon saw that Moore was

following her on foot. Moore eventually caught up to her, and told her that she was not

going anywhere because she “owed” him. Moore then grabbed the victim’s arm, but she

was able to free herself and continue walking. Moore caught up with the victim again and he knocked her down. The victim testified that she was on the ground struggling

with him as he was ripping her clothes off. The victim further testified that during the

struggle, Moore sexually assaulted her.

{¶10} Police photographs of the victim, which were admitted into evidence,

showed bruises, scratches, and swelling on her arms and legs.

{¶11} On this testimony and evidence, the court found Moore guilty of kidnapping

and one of the gross sexual imposition counts. He was sentenced to a five-year prison

term. His sole assignment of error reads as follows: “The trial court erred to the

prejudice of the defendant-appellant when it returned a verdict of guilty against both the

sufficiency of the evidence and the manifest weight of the evidence.”

II. Law and Analysis

{¶12} In his assignment of error, Moore contends that his convictions are not

supported by sufficient evidence and are also against the manifest weight of the evidence.

Although sufficiency and manifest weight are different legal concepts, manifest weight

may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is

supported by the manifest weight of the evidence necessarily includes a finding of

sufficiency. Cleveland v. Roche, 8th Dist. No. 96801,

, citing State

v. McCrary, 10th Dist. No. 10AP-881,

, ¶ 11, and State v. Braxton, 10th

Dist. No. 04AP-725,

. “Thus, a determination that a conviction is

supported by the weight of the evidence will also be dispositive of the issue of

sufficiency.” Roche at

We, therefore, examine whether Moore’s convictions are supported by the manifest weight of the evidence.

{¶13} The weight of the evidence concerns the inclination of the greater amount of

credible evidence offered to support one side of the issue rather than the other. State v.

Thompkins,

,

,

. When presented

with a challenge to the manifest weight of the evidence, an appellate court may not

merely substitute its view for that of the trier of fact, but must review the entire record,

weigh the evidence and all reasonable inferences, consider the credibility of witnesses,

and determine 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.

An appellate court should reserve reversal of a

conviction as being against the manifest weight of the evidence for only the most

“exceptional case in which the evidence weighs heavily against the conviction.”

{¶14} Moore contends that the trial court lost its way by giving too much weight to

the victim’s testimony. According to Moore, the victim was not credible because of her

drug habit and some other mental health issues. We disagree.

{¶15} In addressing a manifest weight of the evidence argument, as previously

mentioned, we are able to consider the credibility of the witnesses. Roche at ¶ 10.

However, in conducting our review, we are guided by the presumption that the jury, or the

trial court in a bench trial, “is best able to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in weighing the credibility of

the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland,

,

(1984). Accordingly, we afford great deference to the trier of fact’s

determination of witness credibility. State v. DeHass,

,

(1967), paragraph one of the syllabus.

{¶16} The victim’s testimony was, at least in part, corroborated by the state’s other

witnesses. Both Calvo and Wilbraham testified that they were awakened in the early

morning hours by the victim’s screams for “help” and plea for Moore to “stop.” Calvo

testified that she saw the victim struggling to get away from Moore, as Moore pulled her

pants down and tore her underwear off.

{¶17} Moreover, the arresting officer was on routine patrol when he heard a

woman screaming. He saw the victim on the ground and Moore on top of her. As the

officer approached, he saw the victim trying to fight off Moore, and saw that her shorts

were down to her knees, her genitals were exposed, and she was lying on her back. The

officer had to pull Moore off of the victim. After being advised of his Miranda rights,

Moore reported to the officer that he and the victim had been together that evening

smoking his crack cocaine and he thought the victim owed him a sexual favor in return.

{¶18} Photographs of the victim admitted into evidence showed bruises, scratches,

and swelling on her arms and legs.

{¶19} Count 1 of the indictment charged that Moore “did, by force, threat, or

deception, purposely remove [the victim] from the place where she was found or restrain

the liberty of her for the purpose of engaging in sexual activity * * *.” Count 3 of the

indictment charged that Moore “did have sexual contact with [the victim], to wit: touching the anal area of [the victim], not his spouse, by purposely compelling [her] to

submit by force or threat of force.”

{¶20} The manifest weight of the evidence supports the trial court’s finding of

guilt on the two charges. As such, the evidence was also necessarily sufficient to

support the convictions. Moore’s assignment of error is therefore overruled.

{¶21} Judgment affirmed.

It is ordered that appellee recover from 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 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.

LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR