[Cite as State v. Carter, 2011-Ohio-2658.]


         Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA




                            JOURNAL ENTRY AND OPINION
                                    No. 94967




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 MICHAEL CARTER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-528720

        BEFORE:            E. Gallagher, J., Sweeney, P.J., and Rocco, J.
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     RELEASED AND JOURNALIZED:                June 2, 2011

 ATTORNEY FOR APPELLANT

Terrence K. Scott
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215-2998

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

     {¶ 1} Michael Carter appeals from his convictions rendered in the

Court of Common Pleas.      Carter argues his convictions for gross sexual

imposition in violation of R.C. 2907.05(A)(4) and unlawful sexual conduct

with a minor in violation of R.C. 2907.04 were against the manifest weight of
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the evidence. For the following reasons, we affirm the trial court’s judgment

of conviction.

      {¶ 2} On October 5, 2009, a Cuyahoga County grand jury indicted

Carter on four counts of rape pursuant to R.C. 2907.02; one count of

kidnapping, pursuant to R.C. 2905.01; and three counts of gross sexual

imposition, pursuant to R.C. 2907.05. All counts contained sexually violent

predator specifications and the kidnapping charge contained a sexual

motivation specification. Carter pleaded not guilty at his arraignment and

elected to try his case before the court. Carter’s bench trial commenced on

March 11, 2010.

      {¶ 3} The state of Ohio presented the testimony of five witnesses:

K.W., the underage victim, Lekisha Scott, a Cuyahoga County Social Worker,

Cleveland Police Department Detective Richard Durst, Cleveland Police

Officer Mark Pesta and N.R., the mother of the underage victim.           The

evidence presented by the State centered around four incidents where Carter

sexually abused K.W. However, as the trial court found Carter guilty of

only two incidents of sexual abuse, for purposes of clarity, we will limit our

discussion of the facts to those two incidents.

      {¶ 4} K.W., born April 26, 1994, testified that during the summer of

2006, Carter began sexually abusing her.          K.W. stated that during that
                                       4

summer she was 12 years old and that she occasionally stayed with her aunt

and uncle, Julia Roberts Carter and Michael Carter at their house located at

2921 Minnie Avenue, Cleveland, Ohio 44104. K.W. testified that one night

during that summer, she was asleep on the couch when Carter sat down next

to her and put his hands on her. K.W. reported that she pretended to sleep

while Carter touched her breasts underneath her shirt and then went

underneath her underwear and rubbed her vagina.             K.W. testified that

Carter did not say anything to her but made moaning noises when he

touched her. Carter stopped touching K.W. when her phone rang. K.W.

stated that she was scared and upset and that she did not report Carter’s

actions.

          {¶ 5} K.W. also testified that Carter sexually abused her when she

was 14 years of age. At the time of this incident, K.W. was visiting her aunt

and Carter at their new residence located at 8114 Beman Avenue in

Cleveland, Ohio 44105. 1 K.W. stated that she and her cousin D.R. were

present in a room when Carter entered. She testified as follows:

          {¶ 6} “He pulled the cover over me.   He started touching again —

touching me again, and I was moving him like — I mean, I was moving

      1
       Although the indictment charged count five as occurring between October 1,
2008 to December 31, 2008, the testimony adduced at trial indicates that this
incident occurred sometime in January 2009.
                                     5

around, trying to get him off of me, and he didn’t get off of me. And he

didn’t [sic] start touching my pants. Then his hands started touching my

breast again. Then went in my pants from the back, ‘cause I was like laying

on my side, and my boy shorts, and he put a hole in them. And he turned

the hole in my boy shorts, and he put his fingers in me. And then I’m trying

to move away, and he pulled me closer and he not letting me go.” Tr. 53.

      {¶ 7} K.W. clarified that during this incident, Carter inserted his

fingers into her vagina.

      {¶ 8} After this incident occurred, K.W. returned to her mother’s house

and eventually told her mother about Carter’s actions.     K.W. also told a

Euclid police officer, who picked her up for truancy, of Carter’s actions.

K.W.’s mother, N.R., contacted the Cleveland Police Department and filed a

police report.

      {¶ 9} Lekisha Scott testified that she was the Cuyahoga County Social

Worker assigned to K.W.’s case. Ms. Scott interviewed K.W., her mother,

and Carter. Ms. Scott informed Carter of the nature of the allegations and

he responded by stating that the allegations were untrue.        Carter also

provided Ms. Scott with a variety of reasons as to why K.W. would make

false allegations against him.

      {¶ 10} Cleveland Police Detective Richard Durst, assigned to the Sex
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Crimes Unit, testified that he interviewed K.W.’s cousin, D.R.      Detective

Durst interviewed D.R. because K.W. reported that she screamed when

Carter last abused her and that D.R. was in the room at the time. Although

D.R. corroborated that she was in the room with Carter and K.W., D.R. did

not answer any of the officer’s questions or corroborate the allegations of

sexual abuse made by K.W.

      {¶ 11} Cleveland Police Officer Mark Pesta testified that K.W. and her

mother reported the sexual abuse to him.          Officer Pesta took K.W.’s

statement, verified that Carter lived in Cleveland, and reported the abuse to

the county child abuse hotline.

      {¶ 12} K.W.’s mother, testified at trial that when K.W. informed her of

Carter’s actions, she took her daughter to the Euclid police station to report

the incident. Ms. Roberts was eventually directed to the Cleveland Police

Department where she gave her statement to Officer Pesta.

      {¶ 13} The state rested its case at the conclusion of Ms. Roberts’s

testimony. Based on the evidence before the court, the trial judge dismissed

two counts of rape pursuant to Crim.R. 29.

      {¶ 14} The defendant presented the testimony of his wife, Julia Roberts

Carter, D.R., and himself. Julia denied that the allegations occurred and

blamed her sister, Ms. Roberts, for the allegations being brought against her
                                          7

husband. Carter testified, stating that he was being set up by Ms. Roberts

and denied the charges. Carter further stated that Ms. Roberts has tried to

set him up in the past and was always trying to break up the relationship

between himself and Julia.             Furthermore, Carter stated that K.W.

repeatedly phoned him and asked to visit, even after these alleged incidents

of abuse occurred.

          {¶ 15} The trial court granted the motion of acquittal pursuant to

Crim.R. 29 as to Counts 1 and 8.

          {¶ 16} The trial court found Carter guilty of gross sexual imposition of a

person less than 13 years of age, a felony of the third degree under Count 2,

but not guilty of the sexual predator specification in that Count, and

unlawful sexual conduct with a minor, a felony of the third degree and a

lesser included offense of the charge of rape under Count 5. 2           The court

found Carter not guilty on the remaining charges and all attendant

specifications. It is from this conviction that Carter appeals, raising a single

assignment of error.

          “The trial court violated Michael Carter’s rights to due process and a
          fair trial when it entered judgments of conviction for gross sexual
          imposition and unlawful sexual conduct with a minor, when those

      2
       The conviction for gross sexual imposition related to the first instance of
sexual abuse outlined above while Carter’s conviction for unlawful sexual conduct
with a minor related to the second instance of sexual abuse as described above.
                                      8

      judgments were against the manifest weight of the evidence. Fifth
      and Fourteenth Amendments to the United States Constitution, and
      Section 16, Article I of the Ohio Constitution. (March 29, 2010
      Judgment Entry; Tr. pp. 26, 27, 37, 41, 47, 48, 54, 97, 98, 99, 104, 105,
      133, 138, 185).”

      {¶ 17} In evaluating a challenge based on manifest weight of the

evidence, a court sits as the thirteenth juror, and intrudes its judgment into

proceedings that it finds to be fatally flawed through misrepresentation or

misapplication of the evidence by a jury that has “lost its way.” State v.

Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. As the Ohio

Supreme Court declared:

      “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.’

      * * The court, reviewing the entire record, weighs the evidence and all
      reasonable 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. (Internal citations omitted.)

      {¶ 18} This court is mindful that weight of the evidence and the

credibility of witnesses are primarily for the trier of fact and a reviewing
                                      9

court must not reverse a verdict where the trier of fact could reasonably

conclude from substantial evidence that the State has proven the offense

beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, 227

N.E.2d 212, at paragraphs one and two of the syllabus. The goal of the

reviewing court is to determine whether the new trial is mandated.           A

reviewing court should only grant a new trial in the “exceptional case in

which the evidence weighs heavily against a conviction.” State v. Lindsey,

87 Ohio St.3d 479, 2000-Ohio-465, 721 N.E.2d 995.           (Internal citation

omitted.)

      {¶ 19} In reviewing the entire record, we cannot conclude that the trial

court lost its way in convicting Carter of gross sexual imposition and

unlawful sexual conduct of a minor. Carter contends that the victim was

not credible as there was no physical evidence or eyewitness to corroborate

her testimony. Because of the nature of the sexual abuse and the timeline

of police involvement, it is not surprising that there was no physical evidence

of the encounters. Additionally, although D.R. was present in the room for

the second incident, she refused to answer any questions as to Michael

Carter’s contact with K.W.      Accordingly, we cannot say whether D.R.

witnessed the abuse or not.

      {¶ 20} Carter contends that the victim was not credible because she
                                      10

continued to call and visit him even after the alleged abuse began. The

victim testified that she was scared and upset and wanted to punch Michael

Carter in his face after the initial incident occurred. However, the victim

also testified to a tumultuous relationship with her mother and that she

frequently turned to her Aunt Julia for a second home.           Moreover, the

victim stated that after the last incident of abuse in January 2009, she did

not contact Michael Carter again.

      {¶ 21} Additionally, Carter contends that the victim was not credible

because her timeline of the sexual abuse was inconsistent. Although K.W.

could not remember the exact dates, she could give an approximate date

based on the circumstances, holidays, and events within her family. Lastly,

Carter alleges that the victim’s mother, N.R., was trying to set him up. N.R.

denied this allegation.

      {¶ 22} Although Carter argues that his version of events should have

been relied upon by the trial court, the trier of fact is in the best position to

weigh the evidence and the credibility of witnesses. As the reviewing court,

we find that the trier of fact could reasonably conclude from the substantial

evidence presented by the State, that the State has proven the offenses

beyond a reasonable doubt. Accordingly, we cannot find that the trier of fact

lost its way and created such a manifest miscarriage of justice that the
                                              11

convictions must be reversed and a new trial ordered.

       {¶ 23} The sole assignment of error is overruled; the judgment of the

trial court is affirmed.

       It is ordered that appellee recover of 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 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.




EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KENNETH A. ROCCO, J., CONCUR
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