[Cite as State v. Houston, 2011-Ohio-2793.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 95670



                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                             SAMUEL L. HOUSTON
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-521929

        BEFORE: Boyle, J., Kilbane, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                        June 9, 2011
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ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Kevin R. Filiatraut
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:

       {¶ 1} Defendant-appellant, Samuel Houston, appeals his rape and kidnapping

convictions.   He raises two assignments of error for our review:

       {¶ 2} “[1.] The trial court erred in denying appellant’s [Crim.R. 29] motion for

acquittal when there was insufficient evidence to prove the elements of rape and kidnapping.

       {¶ 3} “[2.] Appellant’s convictions for rape and kidnapping were against the manifest

weight of the evidence.”
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       {¶ 4} Finding no merit to his arguments, we affirm.

                              Procedural History and Factual Background

       {¶ 5} In March 2009, the grand jury indicted Houston on three counts: Count 1, rape,

in violation of R.C. 2907.02(A)(2), with notice of prior conviction and repeat violent offender

specifications; Count 2, kidnapping, in violation of R.C. 2905.01(A)(4), with sexual

motivation, notice of prior conviction, and repeat violent offender specifications; and Count 3,

gross sexual imposition, in violation of R.C. 2907.05(A)(1), with a repeat violent offender

specification.   The notice of prior conviction and repeat violent offender specifications were

bifurcated and tried to the court.    The remaining charges were tried to a jury where the

following evidence was presented.

       {¶ 6} M.W. testified that she was 13 years old in June 2006 when Houston, who was

her mother’s live-in boyfriend at that time, sexually abused her while her mother was at work.

 M.W. stated that she had come home from school in early June and had taken a shower.

She was standing in the bathroom with a towel wrapped around her when Houston grabbed

her arm and pulled her into her mother’s bedroom.      She testified: “[h]e put a pillow over my

face and — he put his penis into my vagina.         He put it halfway in but I told him he was

hurting me but he kept going, but he didn’t push further.”    She testified that his penis was in

her vagina for five to eight minutes.     She stated that he took the pillow off of her face

because she “started kind of screaming,” and he told her to “be quiet or somebody was going
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to hear.”   M.W. stated that she told Houston that he hurt her, and he replied that he did not

mean to hurt her.

       {¶ 7} M.W. testified that after the incident had occurred, Houston went downstairs

and was pacing.        M.W. told him that she was going to tell her mom.   But Houston “said not

to tell her because she would be mad at both of [them].”       M.W. testified that she was afraid

to tell her mom after that because she “didn’t want her [mother] to look at [her] any different.”

       {¶ 8} M.W. further testified that on Father’s Day of that same year, Houston had put

his hand up her skirt while her mom and sister were in another room.        She told him to stop

and he did.       That same day, M.W. said that Houston told her that he loved her.        M.W.

testified that she told Houston that he was supposed to love her mom.

       {¶ 9} M.W. never told anyone about the two incidents until January 2009 when she

wrote a poem in school.        As part of an assignment for one of her classes, she wrote a poem

that began with “who will cry for the little girl.”    Her teacher gave the assignment after the

class had watched Antwoine Fisher, a movie where a boy had written a poem, “who will cry

for the little boy.”     In the poem, she wrote: “Who will cry for the little girl whose mother’s

boyfriend sometimes touch her and in a way I feel only her boyfriend or husband should but

who is afraid to tell her mom because he[r] mom won’t believe her.”

       {¶ 10} M.W.’s teacher gave the poem to the principal, who then called M.W.’s mother

and the police.
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       {¶ 11} M.W.’s mother testified that she began dating Houston when M.W. was 11

years old.   Houston lived with them for approximately two years.       M.W.’s mother testified

that the entire time she was in a relationship with Houston, they only had sexual intercourse

four to six times because Houston had erectile dysfunction issues.

       {¶ 12} At the close of the state’s case, Houston moved for a Crim.R. 29 acquittal,

which the trial court denied.

       {¶ 13} Houston presented four witnesses on his behalf, including himself, his sister, his

doctor, and the superintendent of Warrensville Heights School District.

       {¶ 14} Houston’s sister testified that she became good friends with M.W.’s mother.

She said that even after M.W.’s mother and Houston had broken up, Houston and M.W. were

“like father and daughter.”

       {¶ 15} Larry Ellis, the superintendent of Warrensville Heights School District, testified

that in 2006 the school year ended on June 2.

       {¶ 16} Dr. Michael Seidman testified that Houston had diabetes, which caused him to

have erectile dysfunction.      Dr. Seidman treated Houston for erectile dysfunction in November

2005 and April 2006, prescribing him different medications for the problem.

       {¶ 17} Houston testified that he only had sexual intercourse with M.W.’s mother three

times during their relationship.     Houston denied that he ever raped M.W. or put his hand up
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her skirt.   In fact, Houston denied that he was ever alone with M.W. during the entire time he

dated her mother.

        {¶ 18} The jury found Houston guilty of Counts 1 and 2, rape and kidnapping with the

sexual motivation specification, but could not reach a verdict on Count 3, the gross sexual

imposition charge.    The trial court found Houston guilty of the notice of prior conviction and

repeat violent offender specifications.

        {¶ 19} The trial court declared a mistrial on Count 3, and the state dismissed it prior to

sentencing without prejudice.

        {¶ 20} The trial court found that the rape and kidnapping convictions merged, and the

state elected to have Houston sentenced on the rape count.        The trial court then sentenced

Houston to seven years for rape, and notified him that he would receive five years of

mandatory postrelease control upon his release from prison.

                                Sufficiency and Weight of the Evidence

        {¶ 21} In his first assignment of error, Houston contends the state’s

evidence was not sufficient to convict him of rape and kidnapping. In his

second assignment of error, he maintains that the jury lost its way in

convicting him of the two charges. We disagree.

        {¶ 22} When an appellate court reviews a record upon a sufficiency

challenge, “‘the relevant inquiry is whether, after viewing the evidence in a
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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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶77,

quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph

two of the syllabus.

      {¶ 23} In reviewing a claim challenging the manifest weight of the

evidence, “[t]he question to be answered is whether there is substantial

evidence upon which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt. In conducting this review, we

must examine the entire 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.”        (Internal

quotes and citations omitted.) Leonard, 104 Ohio St.3d at ¶81.

      {¶ 24} Houston’s sufficiency arguments relating to his rape conviction

are technically weight of the evidence issues. He claims “the contradictions

in the victim’s testimony in the case at bar were such that no reasonable juror

could rely on it.”

      {¶ 25} Houston first raises issues with M.W.’s credibility because she did

not report the incidents until 2009, even though she knew that Houston’s
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conduct was “inappropriate.”      Houston further maintains that an “equally

glaring problem” with M.W.’s testimony is that her statement to police

regarding the timing of the two incidents was inconsistent with her trial

testimony. M.W. testified that the rape occurred in early June while school

was still in session, and the incident where he put his hand up her skirt

occurred on Father’s Day, which was on June 18, 2006. But in a recorded

statement to police, M.W. stated the touching happened first, and then the

rape.

        {¶ 26} Again, we find this to be a weight of the evidence issue.   As for

M.W.’s inconsistent statements, the jury heard the inconsistencies and still

believed that she was raped. The two incidents had occurred three years

before trial, when she was only 13 years old. M.W. had always stated there

were only two incidents that had happened, the rape and the touching. And

even though she had confused which one occurred first, she had always stated

that the rape occurred after school and the skirt incident had occurred on

Father’s Day.

        {¶ 27} Houston further claims that the state failed to present sufficient

evidence to prove kidnapping under R.C. 2905.01(A)(4).          Count 2 of the

indictment, which tracked the statute, charged that Houston, by force, threat,

or deception, removed the victim from the place where Houston had found her
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or restrained her liberty for the purpose of engaging in sexual activity against

the victim’s will. Houston claims that M.W.’s testimony did not establish the

element of restraint because it merely showed he led her into her mother’s

bedroom, not forced her into the bedroom.

      {¶ 28} But this court has held that “‘no movement is required to

constitute the offense of kidnapping; restraint of the victim by force, threat, or

deception is sufficient.    Thus, implicit within every forcible rape (R.C.

2907.02[A][1]) is a kidnapping.’”       State v. Scott, 8th Dist. No. 88084,

2007-Ohio-2111, ¶23, quoting State v. Logan (1979), 60 Ohio St.2d 126, 130,

397 N.E.2d 1345.      See, also, State v. Blackman, 8th Dist. No. 88608,

2007-Ohio-4168 (“The victim testified that appellant had called her into her

mother’s room.    They began talking and ‘playing around’ until appellant

‘pinned [her] to the bed ***.’ She said that she had been lying on her back

with appellant lying on top of her. The use of the word ‘pinned’ sufficiently

demonstrated that she had been restrained by force and could not move away

from him. A reasonable trier of fact could find that appellant pinned her to

the bed so that he could engage in sexual activity with her, thus constituting

proof of force necessary to show the kind of restraint necessary for

kidnapping.”).
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      {¶ 29} Here, M.W. testified that Houston grabbed her arm, pulled her

into her mother’s bedroom, put a pillow over her face, and put his penis

halfway into her vagina. We conclude that this evidence was sufficient to

establish force or restraint necessary to prove kidnapping beyond a

reasonable doubt.

      {¶ 30} As for Houston’s remaining arguments that address weight of the

evidence issues, including the fact that M.W.’s mother first questioned

whether M.W. was telling the truth because she knew Houston had erectile

dysfunction problems, the fact that M.W. felt “comfortable” around Houston

even after the two incidents, and the fact that M.W. gave other minor

inconsistent statements, we conclude that these issues do not transform this

case into the “exceptional case in which the evidence weighs heavily against

the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52,

678 N.E.2d 541. The jury heard all of the testimony, and M.W.’s inconsistent

statements, and still chose to believe her over Houston, at least regarding the

rape and kidnapping charges.

      {¶ 31} Accordingly, Houston’s first and second assignments of error are

overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.
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       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.




MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, A.J., and
MELODY J. STEWART, J., CONCUR
