[Cite as State v. Cook, 2011-Ohio-3829.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95354




                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.


                                           SCOTT COOK
                                              DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-530909

        BEFORE: Kilbane, A.J., Celebrezze, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                    August 4, 2011
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ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Belinda Kyles-Gest
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

          {¶ 1} Defendant-appellant, Scott Cook, appeals from his conviction for attempted

rape, in violation of R.C. 2907.02(A)(2). Following a thorough review of the record, we

affirm.

          {¶ 2} On November 13, 2009, defendant was charged pursuant to an eight-count

indictment in connection with an alleged attack on K.S.,1 a 92 year-old female resident at

the Larchwood Village Retirement Community (Larchwood Village) in Cleveland.

Counts 1 through 4 charged him with kidnapping with a sexual motivation specification.


       Pursuant to this court’s policy, sexual abuse victims are not identified by
          1

their names in opinions.
                                             3
Count 5 charged him with rape, in violation of R.C. 2907.02(A)(2), and Count 6 charged

him with rape, in violation of R.C. 2907.02(A)(1)(c).       Count 7 charged him with

felonious assault, in violation of R.C. 2903.11(A)(1), and Count 8 charged him with

assault, in violation of R.C. 2903.13(A).

       {¶ 3} Defendant pled not guilty and waived his right to a jury trial.   The matter

proceeded to trial to the court on May 3, 2010.

       {¶ 4} The State’s evidence indicated that at about 11:00 p.m. on October 9, 2009,

staff members of Larchwood Village entered the room of K.S. and observed the

defendant, a 41-year-old patient at the facility, in the woman’s bed.      According to

nursing assistant Elliott Groover, the woman, who suffers from dementia, was on her

back, and defendant, who has paraplegia, was on his knees, with the woman’s legs over

his shoulders. Defendant’s hospital gown was draped to the side, and a floor mat had

been placed as a cover against the side of the bed.

       {¶ 5} Defendant stated, “Oh f—,” and Groover immediately left to get a nurse.

When Groover returned seconds later, defendant said, “I’m sorry, I’m, sorry.”     At this

time, defendant was on top of the woman, but her knees were no longer on his shoulders.

 Defendant then returned to his wheelchair and left the room.

       {¶ 6} Groover admitted that there are times that the woman is very lucid and that

she sometimes participates in activities at the facility.
                                             4
       {¶ 7} Charge nurse, Karen Smith, testified that an aide requested assistance in

K.S.’s room. Smith and another nurse went into the room and Smith observed defendant

in K.S.’s bed, straddled over her with his hands at her “private area.” Smith testified

that the woman, who had been given her evening sleeping pill approximately two hours

earlier, was just lying there and appeared “out of it.”

       {¶ 8} According to Smith, defendant was drenched in sweat, his sweat pants were

halfway down his legs, his genitals were exposed, and his catheter had been removed.

The woman’s incontinence briefs were on the floor next to the bed.              Defendant

repeatedly apologized.    He was instructed to get dressed and leave, and at that point,

defendant asked for an additional 10 or 15 minutes. K.S. had bruises around her wrists.

Smith asked K.S. if she was hurt, and she said, “no, he was just a little rough.” Smith

also opined that it did not appear that K.S. and defendant were “having a relationship.”

       {¶ 9} Cleveland Police Officer Timothy Guerra (Officer Guerra) testified that in

the early morning of October 10, 2009, he spoke with K.S. at Fairview General Hospital,

and also spoke with staff from the Emergency Department.      He then went to Larchwood

Village Retirement Community and spoke with the defendant. At this time, defendant

stated that he had been in K.S.’s bed because they were watching television together.

Officer Guerra observed that defendant was wet, and he was able to transfer himself from

his wheelchair to his bed.   Officer Guerra collected K.S.’s bedding and clothing.
                                             5
       {¶ 10} Cleveland Police Detective Harold Thompson (Detective Thompson)

testified that he also investigated the matter. He took photographs and also spoke with

defendant, who had been transferred to Rudwick Manor. Detective Thompson was

uncertain that defendant understood the questions so the detective stopped questioning

him. During his interview of K.S., she did not remember the incident with defendant.

He also obtained two of defendant’s shirts, a pair of defendant’s sweat pants.

       {¶ 11} Cleveland Police Officer Robert Petchler testified that he obtained a patient

gown from the retirement facility and the rape kit collected at Fairview General Hospital

and logged them into the property room at the police district.

       {¶ 12} Melissa Zielaskiewicz, a forensic scientist in the forensic biology DNA

section of the Ohio Bureau of Criminal Identification and Investigation, testified that she

analyzed evidence obtained in this matter.     According to Zielaskiewicz, a cutting from a

sheet contained a single DNA profile that was consistent with defendant’s DNA. The

expected     frequency    of    occurrence     of    the    DNA      profile    is   one    in

3,954,000,000,000,000,000 unrelated individuals.

       {¶ 13} On cross-examination, she acknowledged that DNA could come from hair

with a root, scaling skin, sweat, or urine, but she stated that this sample tested positive for

semen. She also acknowledged that from the single DNA profile, she could not say with

certainty that another individual was also on the sheet at the time defendant’s DNA was

deposited.
                                              6
       {¶ 14} Katherine Goellnitz, a       Sexual Assault Nurse Examiner with Fairview

General Hospital, testified that she examined K.S. in connection with this matter.

Because K.S. had a history of incoherent episodes, Goellnitz obtained the consent of

K.S.’s daughter in order to examine her.            At this time, K.S. was cooperative, but

Goellnitz had to reorient her as to the purpose of the examination.                   Goellnitz

documented that there were marks on K.S.’s wrists and a crescent-shaped laceration and

redness on the outer wall of her vagina.     Goellnitz also required assistance from another

worker in placing K.S.’s legs in position for the examination.

       {¶ 15} On cross-examination, Goellnitz stated that K.S. was not coherent during

the entire hour and a half examination.

       {¶ 16} At the close of the State’s case, the trial court entered a judgment of

acquittal on the kidnapping charges and the felonious assault charge.           Thereafter, the

court acquitted defendant of the charge of assault and rape as alleged in Count 6, and

convicted him of attempted rape as a lesser included offense of rape2 as alleged in Count

5. On May 27, 2010, the court sentenced defendant to five years of imprisonment and

five years of mandatory postrelease control.

       {¶ 17} Defendant now appeals and assigns two errors for our review.

       ASSIGNMENT OF ERROR ONE

       2
         In State v. Williams, 74 Ohio St.3d 569, 1996-Ohio-91, 660 N.E.2d 724, the Supreme Court
noted that attempted rape is a lesser included offense of rape.
                                           7
      “The trial court erred when it denied Appellant’s motion for acquittal
      under Crim.R. 29 because the state failed to present sufficient evidence
      to establish beyond a reasonable doubt the elements necessary to
      support the convictions.”

      {¶ 18} Within this assignment of error, defendant asserts that the trial court erred

in denying the motion for a judgment of acquittal of the charge of rape as alleged in

Count 5 because there was no evidence of force and no evidence of sexual conduct.

      {¶ 19} Crim.R. 29(A), which governs motions for acquittal, states:

      “The court on motion of a defendant or on its own motion, after the
      evidence on either side is closed, shall order the entry of a judgment of
      acquittal of one or more offenses charged in the indictment,
      information, or complaint, if the evidence is insufficient to sustain a
      conviction of such offense or offenses.”

      {¶ 20} Pursuant to Crim.R. 29(A), “a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions as

to whether each material element of a crime has been proved beyond a reasonable doubt.”

 State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184, syllabus.

      {¶ 21} Count 5 charged defendant with rape, in violation of R.C. 2907.02(A)(2),

the elements of which are to “engage in sexual conduct with another when the offender

purposely compels the other person to submit by force or threat of force.”

      {¶ 22} In this matter, the state presented evidence that defendant was in the bed of

a 92 year-old woman who suffers from dementia. At this time, defendant was on his

knees, with the woman’s legs over his shoulders and his genitals were exposed. The

woman, whose husband resides at the facility, appeared “out of it” and her incontinence
                                            8
briefs were on the floor near the bed.     When the nursing assistant entered the room,

defendant stated, “Oh f—,” and repeatedly said, “I’m sorry, I’m, sorry.”       According to

the state’s witnesses, the woman had appeared “out of it,” had bruises around her wrists, a

crescent-shaped laceration and redness on her vagina.     She also said that defendant was

“a little rough.”   Defendant admitted to police that he was in the woman’s bed and a

cutting from the sheet contained a single DNA profile that was consistent with

defendant’s DNA and also tested positive for semen.

       {¶ 23} From this evidence, the trial court did not err in refusing to enter a judgment

of acquittal on the rape charge set forth in Count 5 of the indictment. Accord State v.

Williams (Mar. 24, 1995), Trumbull App. No. 89-T-4210 (trial court did not err in

denying Crim.R. 29 motion for acquittal as to charge of rape where defendant was

ultimately convicted of the lesser included charge of attempted rape).

       {¶ 24} This assignment of error is overruled.

       ASSIGNMENT OF ERROR TWO

       “Appellant’s convictions are against the manifest weight of the
       evidence.”

       {¶ 25} In determining whether a conviction is against the manifest weight of the

evidence,    the appellate court sits as a “thirteenth juror” and disagrees with the

factfinder’s resolution of the conflicting testimony. State v. Thompkins, 78 Ohio St.3d

380, 387, 1997-Ohio-52, 678 N.E.2d 54, citing Tibbs v. Florida (1982), 457 U.S. 31,

42, 102 S.Ct. 2211, 72 L.Ed.2d 652. The reviewing court must examine the entire
                                            9
record, weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses, and determine whether 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. ”   Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717.

       {¶ 26} The appellate court may not merely substitute its view for that of the jury,

and reversal on manifest weight grounds is reserved for “the exceptional case in which

the evidence weighs heavily against the conviction.”    Id., quoting Martin.

       {¶ 27} In this matter, after examining the entire record, weighing the evidence and

all reasonable inferences, we are unable to conclude that the court clearly lost its way and

created such a manifest miscarriage of justice in convicting defendant of the offense of

attempted rape. Based upon the eyewitness observations of the workers at the nursing

home, the woman’s physical condition, defendant’s statements, and the DNA evidence

identifying defendant, reasonable minds could conclude that defendant attempted to

engage in sexual conduct with the woman by force or threat of force.

       {¶ 28} The second assignment of error is without merit and overruled.

       {¶ 29} Defendant’s conviction is affirmed.

       It is ordered that appellee recover from appellant the   costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
                                          10
      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.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR
