[Cite as State v. Smith, 2018-Ohio-1937.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                     No. 17AP-649
v.                                               :                (C.P.C. No. 16CR-2007)

Anthony Smith,                                   :          (REGULAR CALENDAR)

                 Defendant-Appellant.            :


                                            DECISION

                                       Rendered on May 17, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee.

                 On brief: Wolfe Law Group, LLC, and Stephen T. Wolfe, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Defendant-appellant, Anthony Smith, appeals from a judgment of the
Franklin County Court of Common Pleas finding him guilty of aggravated burglary, rape,
and kidnapping. At the request of the state, we modify the judgment of the trial court to
reflect consecutive sentences of 10 years each for appellant's convictions for aggravated
burglary and rape, resulting in a total sentence of 20 years, to run consecutive to prior
sentences for convictions in Michigan and Cuyahoga County, Ohio, as stated in the trial
court's judgment entry. In all other respects, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On April 13, 2016, appellant was indicted on one count each of aggravated
burglary, rape, and kidnapping. On August 7, 2017, the case proceeded to a jury trial. As
relevant to this appeal, the following evidence was presented.
No. 17AP-649                                                                                2

        {¶ 3} On July 20, 1996, the victim, J.W., was alone at home with her two-year old
daughter. J.W. and her daughter were sleeping in the same bed when J.W. was awoken by
a man sitting on the side of the bed. J.W. had never seen this man before and he had not
been invited into the home. J.W. observed the man for about ten seconds before he shoved
a T-shirt into her mouth to muffle her screaming. The T-shirt also covered J.W.'s face.
J.W.'s daughter started to wake up and the man asked J.W. to hug him so that the daughter
would not be alarmed. J.W. did so, but only because the man kept reaching beside the bed
for what he said was a gun. J.W. did not actually see a gun.
        {¶ 4} The man told J.W. to take her daughter to another room, and J.W. testified
that when she returned the man "proceeded to rape me." (Tr. at 95-96.) Asked to clarify
what she meant by "raped," J.W. stated that the man had "sex without [her] permission."
(Tr. at 96.) J.W. indicated to the man that she "did not want this to happen." (Tr. at 98.) At
some point, the T-shirt was removed from her mouth and face. J.W. asked the man not to
kill her, and he responded that "he doesn't kill, he rapes." (Tr. at 97.) The man did not wear
a condom and ejaculated inside her. He then put a shirt over J.W.'s face, told her he did not
want her to see him, and left. J.W. called the police.
        {¶ 5} The police soon arrived at the scene and determined that the man entered the
home by climbing up a board to a first floor window and then cutting the screen. J.W. told
the police responders that she could not identify or describe the man. The investigating
detective testified that victims of traumatic events often take time for their memory to come
into focus.
        {¶ 6} J.W. was taken to the hospital to have a rape kit performed. At the hospital,
J.W. described the man as a "[m]ale black, 20 to 23 years of age, 5'9", approximately 175
pounds, black hair, brown eyes wearing a dark green shirt and blue jean shorts." (Tr. at 25.)
Police would later ask J.W. to see a sketch artist, but J.W. did not follow up with police
regarding the investigation because the father of her daughter told her that he had the man
killed, apparently to give J.W. some peace of mind, so J.W. assumed the man was already
dead.
        {¶ 7} Meanwhile, lab analysis showed that sperm was present on the vaginal swab
from the rape kit and also on J.W.'s bed sheets. Because the police had no profile to compare
the DNA against, the case went inactive. In 2002, DNA from the rape kit was re-tested and
No. 17AP-649                                                                                3

entered into a database and, in 2013 or 2014, a match was discovered between the DNA
and appellant. Police located J.W. and showed her a photo array containing a 1996 BMV
photo of appellant, and J.W. identified him from the array. Updated DNA samples were
collected from J.W. and appellant. Confirmation testing was performed and the DNA from
the vaginal swab matched the updated sample taken from appellant.
       {¶ 8} At the trial, appellant moved for acquittal pursuant to Crim.R. 29. The trial
court denied the motion. The jury found appellant guilty on all counts, and the trial court—
after merging the kidnapping count into the rape count—sentenced appellant to 11 years on
both the aggravated burglary and rape counts, to be served consecutively to each other and
consecutively to sentences previously imposed in 2 other cases, one from Michigan and the
other from Cuyahoga County, and declared appellant a sexual predator. (Jgmt. Entry at 1-
2.)
II. ASSIGNMENTS OF ERROR
       {¶ 9} Appellant appeals and assigns the following errors:
               [I.] THE EVIDENCE PRESENTED AT TRIAL                       WAS
               INSUFFICIENT TO SUPPORT THE CONVICTIONS.

               [II.] THE TRIAL COURT ERRED WHEN IT OVERRULED
               APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO
               CRIMINAL RULE 29.

               [III.] THE JURY'S VERDICTS WERE AGAINST THE
               MANIFEST WEIGHT OF THE EVIDENCE.

III. DISCUSSION
       {¶ 10} All of appellant's assignments of error are interrelated. As such, we will first
address assignment of error three, the manifest weight of the evidence argument, as
resolution of this argument is dispositive of appellant's assignments of error.
       {¶ 11} Appellant argues that J.W.'s testimony is not sufficient proof of either a
trespass or lack of consent and is against the manifest weight of the evidence. Appellant
argues that the jury gave improper weight to J.W.'s testimony, that J.W.'s testimony was
unreliable, and thus the jury's decisions were improper. As such, appellant argues that it is
clear that the jury lost its way and the convictions must be reversed to prevent a manifest
miscarriage of justice. Appellant's assignments of error lack merit.
No. 17AP-649                                                                            4

       {¶ 12} This court in State v. Baatin, 10th Dist. No. 11AP-286, 2011-Ohio-6294, ¶ 8-
11, stated the applicable law:
               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. State v. McCrary, 10th Dist.
               No. 10AP-881, 2011-Ohio-3161, ¶ 11 * * * Thus, a determination
               that a conviction is supported by the weight of the evidence will
               also be dispositive of the issue of sufficiency. Id. * * *

               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, 78 Ohio
               St.3d 380, 387, 1997-Ohio-52, * * *.

               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. Id. at 387.
               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.' " Id.; State v. Strider-Williams, 10th
               Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.

               In addressing a manifest weight of the evidence argument, we
               are able to consider the credibility of the witnesses. State v.
               Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6.
               However, in conducting our review, we are guided by the
               presumption that the jury * * * " '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.' "Id. * * * Accordingly, we
               afford great deference to the jury's determination of witness
               credibility.

       {¶ 13} Our review of the entire record shows that the weight of the evidence
supported appellant's conviction for rape. J.W. testified that she was awakened by a then
unidentified man sitting on her bed. The man put a T-shirt in J.W.'s mouth to muffle her
No. 17AP-649                                                                                 5

screaming. The man indicated to J.W. that he had a gun, engaged in non-consensual sexual
conduct with J.W., and indicated he was a rapist, not a killer. DNA taken from the vaginal
swab from J.W.'s rape kit matched appellant's DNA, and J.W. later identified him from a
photo array. A reasonable fact finder could find that appellant engaged in sexual conduct
with J.W. and that he purposely compelled J.W. to submit by force or threat of force in
violation of R.C. 2907.02(A)(2).
       {¶ 14} The weight of the evidence was also sufficient to find appellant guilty of
aggravated burglary. J.W. testified that appellant was not invited in her home, and
responding officers determined that entry into the home was achieved by cutting open a
screen of a first floor window. A reasonable fact finder could conclude that appellant
trespassed in an occupied structure with the purpose to commit a criminal offense and that
he inflicted physical harm on J.W., in violation of R.C. 2911.11(A)(1). Finally, the weight of
the evidence was sufficient to find appellant guilty of kidnapping, in that he restrained
J.W.'s liberty for the purpose of engaging in sexual activity against J.W.'s will, in violation
of R.C. 2905 .01(A)(4).
       {¶ 15} This case came down to credibility. The jury clearly believed J.W.'s testimony.
Her testimony, along with the DNA evidence, supported appellant's convictions. Our review
shows that the jury did not clearly lose its way when it found the state's evidence persuasive,
and did not create a manifest miscarriage of justice. The jury was in the best position to
evaluate the witnesses' credibility and the evidence does not weigh heavily against
conviction. Appellant presents no persuasive reason for this court to reject the jury's
determination. Accordingly, appellant's convictions are not against the manifest weight of
the evidence. Appellant's third assignment of error challenging the manifest weight of the
evidence lacks merit and is overruled.
       {¶ 16} As stated above, a finding that a conviction is supported by the manifest
weight of the evidence necessarily includes a finding of sufficiency. State v. McCrary, 10th
Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 11. Therefore, appellant's first assignment of error
challenging the sufficiency of the evidence is overruled.
       {¶ 17} "Because analysis of the evidence for purposes of a Crim.R. 29(A) motion
looks at the sufficiency of the evidence, a Crim.R. 29(A) motion and a review of the
sufficiency of the evidence are subject to the same analysis." State v. Clellan, 10th Dist. No.
No. 17AP-649                                                                                 6

09AP-1043, 2010-Ohio-3841, ¶ 7. Such motions are directed to the issue of whether "the
evidence is insufficient to sustain a conviction." Crim.R. 29(A). As such, there was sufficient
evidence to support the convictions and to overrule appellant's Crim.R. 29 motion for
acquittal. Therefore, appellant's second assignment of error is overruled.
       {¶ 18} As such, each of appellant's assignments of error are overruled.
IV. STATE'S REQUEST TO MODIFY SENTENCES
       {¶ 19} The state notes that the 11 year prison terms for aggravated burglary and rape
imposed by the trial court are unlawful. The state also notes that the crimes occurred shortly
after the enactment of S.B. No. 2, and the applicable range for first degree felonies at the
time of the offenses was 3 to 10 years. The maximum prison term for first degree felonies
was not increased to 11 years until the enactment of H.B. No. 86 in 2011. Therefore, the
state acknowledges that the 11 year prison terms for the aggravated burglary and rape
counts are "void" because they are not authorized by statute. State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, ¶ 8. (Appellee's brief at 4.)
       {¶ 20} The state requests that this court modify the sentence to consecutive 10 year
prison terms, for a total of 20 years, to be served consecutively to the Michigan and
Cuyahoga County sentences. The state claims that this case illustrates perfectly the
Supreme Court of Ohio's observation that "[c]orrecting the defect without remanding for
resentencing can provide an equitable, economical, and efficient remedy for a void
sentence." Fischer at ¶ 30. (Appellee's brief at 4-5.) We agree.
       {¶ 21} Having found an error of law in appellant's sentencing, we are specifically
empowered by both App.R. 12(A)(1)(a) and R.C. 2953.08(G)(2) to "modify" the sentence
imposed by the trial court. For the sake of judicial economy, rather than require a new
sentencing hearing, we exercise that power and hold that appellant's sentence is hereby
modified to reflect consecutive sentences of 10 years each for appellant's convictions for
aggravated burglary and rape, resulting in a total sentence of 20 years, to run consecutive
to prior convictions in Michigan and Cuyahoga County, Ohio, as stated in the trial court's
judgment entry. In all other respects, we affirm the judgment of the trial court.
V. DISPOSITION
       {¶ 22} Appellant's assignments of error are overruled. In addition, the judgment of
the trial court is modified to reflect consecutive sentences of 10 years each for appellant's
No. 17AP-649                                                                              7

convictions for aggravated burglary and rape, resulting in a total sentence of 20 years, to
run consecutive to prior convictions in Michigan and Cuyahoga County, Ohio, as stated in
the trial court's judgment entry. In all other respects, we affirm the judgment of the trial
court.
                                                                Judgment affirmed in part
                                                                    and modified in part.

                      KLATT and LUPER SCHUSTER, JJ., concur.
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