[Cite as State v. Wellman, 2020-Ohio-2876.]


STATE OF OHIO                    )                      IN THE COURT OF APPEALS
                                 )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                           C.A. No.   19CA011527

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
JOSEPH J. WELLMAN                                       COURT OF COMMON PLEAS
                                                        COUNTY OF LORAIN, OHIO
        Appellant                                       CASE No.   18CR099547

                                 DECISION AND JOURNAL ENTRY

Dated: May 11, 2020



        HENSAL, Judge.

        {¶1}    Joseph Wellman appeals his convictions in the Lorain County Court of Common

Pleas. For the following reasons, this Court affirms.

                                                I.

        {¶2}    K.H. had been out jogging for several hours on the evening of August 31, 2018,

when she noticed a man on the opposite side of the street standing at a corner of the intersection

she was approaching. Because it was close to midnight, she slowed down to a walk and turned

down the volume on her headphones to assess the situation. According to K.H., because it was a

man she had seen before several times in the area and he did not seem to notice her, she resumed

her pace. As K.H. reached the intersection, however, the man began crossing the road toward her

trying to get her attention.

        {¶3}    According to K.H., she took out her headphones, but a different man suddenly

grabbed her from behind, put her arms behind her back, and put what she believed was his pelvis
                                                  2


against her. The man she had seen on the corner came up to the front of her and asked her if she

wanted to party. K.H. thought it must be some sort of joke, but when she tried to pull away, the

man behind her pushed into her harder, making her bend slightly forward. The man in front of her

asked her again to go party with them and told her that he would give her a blast, which she

interpreted as something having to do with drugs. When K.H. declined and asked to just go home,

the man behind her laughed and the man in front of her grabbed her vagina over her shorts. K.H.

testified that she could tell that he was trying to get his fingers under her shorts, but they were too

tight. The man in front of her got very close to her face and continued encouraging her to go have

a good time with them. Thinking that the men intended to rape her, K.H. stomped on the foot of

man holding her, which allowed her to free one of her arms. She used that arm to elbow the man

behind her in the groin, freeing her other arm. She then punched the man in front of her in the

throat and began running back to her house. Because her family members were sleeping and she

did not want the men to find out where she lived, K.H. did not contact the police until her family

members convinced her to when she returned home from work the next day.

       {¶4}    Officer Brandon Szymanski testified that, after he spoke with K.H., he went to the

apartment complex where she said that she had seen the man before. He intended to canvass the

apartments, but then noticed a man, Mr. Wellman, who matched the description that K.H.

provided. The officer decided to confirm or eliminate Mr. Wellman as a suspect before he

continued his investigation, so he prepared a photo array and had another officer who was

unfamiliar with the situation administer it to K.H. K.H. identified Mr. Wellman as the man who

was in front of her during the attack and rated her confidence in her identification as 100%. The

Grand Jury subsequently indicted Mr. Wellman for two counts of kidnapping and one count of

gross sexual imposition. A jury found him guilty of the offenses, and the trial court sentenced him
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to a total of six years imprisonment. Mr. Wellman has appealed his convictions, assigning two

errors, which we have reordered.

                                                II.

                                   ASSIGNMENT OF ERROR II

       THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF
       KIDNAPPING IN VIOLATION OF R.C. 2905.01(B) AS THE ELEMENT OF
       CREATING A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM WAS
       NOT PROVEN BEYOND A REASONABLE DOUBT.

       {¶5}    Mr. Wellman argues that his kidnapping conviction under Revised Code Section

2905.01(B) is not supported by sufficient evidence because there was no evidence that the offense

occurred “under circumstances that create a substantial risk of serious physical harm to the

victim[.]” Whether a conviction is supported by sufficient evidence is a question of law, which

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this

determination, we must view the evidence in the light most favorable to the prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind of
       the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether,
       after viewing the evidence in a light most favorable to the prosecution, any rational
       trier of fact could have found the essential elements of the crime proven beyond a
       reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶6}    Section 2905.01(B) provides that “[n]o person, by force, threat, or deception * * *

shall knowingly do any of the following, under circumstances that create a substantial risk of

serious physical harm to the victim * * * (2) [r]estrain another of the person’s liberty.” Under

Section 2901.01(A)(5), “[s]erious physical harm” to a person means “[a]ny mental illness or

condition of such gravity as would normally require hospitalization or prolonged psychiatric

treatment[,]” “[a]ny physical harm that carries a substantial risk of death[,]” “[a]ny physical harm
                                                  4


that involves some permanent incapacity * * * or that involves some temporary, substantial

incapacity[,]” “[a]ny physical harm that involves some permanent disfigurement or that involves

some temporary, serious disfigurement[,]” or “[a]ny physical harm that involves acute pain of such

duration as to result in substantial suffering or that involves any degree of prolonged or intractable

pain.” “‘Substantial risk’ means a strong possibility, as contrasted with a remote or significant

possibility, that a certain result may occur or that certain circumstances may exist.” R.C.

2901.01(A)(8).

       {¶7}    According to Mr. Wellman, K.H. did not testify about any physical harm that she

suffered during the incident. He argues that the only indications that K.H. experienced any mental

harm was her testimony that she had stopped jogging because she is afraid to go out by herself and

that she and her family had decided to move to a new home. Mr. Wellman notes that there was no

evidence that K.H. sought any medical or psychiatric treatment for what occurred. Under Section

2905.01(B)(2), however, the State does not have to establish that a victim suffered serious physical

harm, it only has to show that the restraint of the victim’s liberty occurred under circumstances

that created a substantial risk of serious physical harm to the victim. See State v. Oldaker, 4th

Dist. Meigs No. 16CA3, 2017-Ohio-1201, ¶ 46 (concluding evidence was sufficient because even

though defendant did not cause victim’s injuries, he threatened victim with a gun and prevented

him from seeking medical treatment for his injuries); State v. Garner, 9th Dist. Summit No. 25771,

2012-Ohio-1439, ¶ 13 (explaining that the analysis focuses on the circumstances of the restraint

instead of defendant’s conduct).

       {¶8}    K.H. testified that she was grabbed from behind on an otherwise vacant road late at

night. The man who grabbed her put her arms behind her back and pushed against her with what

K.H. believed was his pelvis, grinding it into her. Another man approached the front of K.H.,
                                                 5


sandwiching her between them. When K.H. struggled to break free, the man holding her pushed

into her, which had the effect of bending her forward and unable to twist to see who was holding

her. Meanwhile, the man in front of her began asking her to go party with them and offered to

give her a blast. She understood the term blast as something having to do with drugs. When she

asked to be let go so that she could go home, the man who was holding her laughed and told her

no. The man in front of her grabbed her vagina over her shorts, although she could feel him trying

to work his fingers under her shorts. He invited her again to go and have a good time with them.

At that point in time, K.H. believed that the men intended to drug, rape, or kill her. She panicked

and fought back against them, freeing herself enough that she could run home.

       {¶9}    Upon review of the record, we conclude that, viewing K.H.’s testimony in a light

most favorable to the prosecution, there was sufficient evidence from which a rational trier of fact

could find that K.H. was restrained under circumstances that presented a substantial risk of serious

physical harm to her. The men’s words and conduct established that they were interested in

engaging in both drug use and sexual activity with K.H., whether she consented to it or not. Such

activities, if they had continued to occur without K.H.’s consent, would have had a substantial

chance of causing K.H. to suffer multiple forms of serious physical harm.                 See R.C.

2901.01(A)(5)(a, c, e). In addition, there does not appear to have been anyone else in the vicinity

who could have come to K.H.’s aid, if her attempt to free herself had failed. Accordingly, we

conclude that Mr. Wellman’s conviction under Section 2905.01(B)(2) is supported by sufficient

evidence. Mr. Wellman’s second assignment of error is overruled.
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                                   ASSIGNMENT OF ERROR I

       THE GUILTY VERDICTS ON COUNTS ONE, TWO, AND THREE WERE
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶10} Mr. Wellman also argues that his convictions are against the manifest weight of the

evidence. If a defendant asserts that his convictions are against the manifest weight of the

evidence,

       an appellate court 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[s] must be reversed and a
       new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d 380, at 387. An appellate court should only exercise its power to reverse

a judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,

9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶11} Mr. Wellman argues that K.H.’s testimony that she was out jogging for four and a

half hours and then was confronted by two men but was able to beat them off and escape is

incredulous. Even if it did happen, he argues that K.H.’s identification of him as one of her

attackers is a case of mistaken identity. He notes that K.H. described the man in front of her as a

pudgy, mixed-race male, who was approximately 5’10” and weighed 180-200 pounds. She also

told police that the man had a fade style haircut, possibly a tattoo on his arm, and that she thought

that she had seen the man before at a certain apartment complex. She acknowledged that the attack

occurred before she had reached a nearby streetlight, which meant that the light would have

become from behind the man, instead of illuminating his face. She admitted that she was under a

lot of stress and did not know how long the incident actually lasted. She also admitted that she
                                                  7


had misrecognized people before and that the long period of exercise she had been engaging in

could have affected her perception. Mr. Wellman also notes that, instead of canvassing the

apartment complex like he initially intended, Officer Szymanski simply stopped the first man he

saw at it and prepared a photo array including that man’s picture. According to Mr. Wellman,

K.H.’s identification of him as one of her attackers is not believable.

        {¶12} The State notes that, at trial, Mr. Wellman never challenged whether the attack

happened, he only denied that he was one of the men who perpetrated it. The State points out that

the man in front of K.H. was so close to her face that she could smell his breath and feel his words

on her face. It notes that K.H. testified that this was not the first time she had seen the man, and

that her heart stopped when she saw his picture in the photo array. The jury was also provided an

opportunity to have Mr. Wellman stand unobstructed in front of them, which allowed them to

assess whether the description that K.H. gave to police was reasonably accurate. The State further

notes that Mr. Wellman was the passenger of a vehicle that was stopped near the location of the

attack two hours after it.

        {¶13} Mr. Wellman recognizes in his brief, “the weight to be given the evidence and the

credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d

230 (1967), paragraph one of the syllabus. “In reaching its verdict, the jury [i]s in the best position

to evaluate the credibility of the witnesses and it [i]s entitled to believe all, part, or none of the

testimony of each witness.” State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368,

¶ 29. Upon review of the record, we cannot say that the jury lost its way when it found that K.H.’s

identification of Mr. Wellman as one of the men who attacked her was credible. We conclude that

Mr. Wellman’s convictions are not against the manifest weight of the evidence. Mr. Wellman’s

second assignment of error is overruled.
                                                 8


                                                III.

       {¶14} Mr. Wellman’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.
                                          9


APPEARANCES:

DENISE G. WILMS, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
