[Cite as State v. Jordan, 2017-Ohio-381.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103890




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 CHARLES V. JORDAN
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-596240-A

        BEFORE: Laster Mays, J., Keough, A.J., and McCormack, J.

        RELEASED AND JOURNALIZED: February 2, 2017
                               -i-
ATTORNEY FOR APPELLANT

Edward M. Heindel
400 Terminal Tower
50 Public Square
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Andrew F. Rogalski
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Charles V. Jordan (“Jordan”) appeals his convictions

and sentence and asks this court to reverse the decision of the jury. We affirm.

       {¶2} Jordan was found guilty of rape, a first-degree felony, in violation of R.C.

2907.02(A)(2); sexual battery, a third-degree felony, in violation of R.C. 2907.03(A)(5);

kidnapping, a first-degree felony, in violation of R.C. 2905.01(A)(4); and kidnapping, a

first-degree felony, in violation of R.C. 2905.01(A)(2). In addition, Jordan was found

guilty of repeat violent offender specification, notice of prior conviction, and sexual

motivation specifications on the kidnapping charges.

       {¶3} During sentencing, the trial court merged the rape count with the sexual

battery count and also merged both kidnapping counts with each other.         The trial court

then imposed a prison sentence of nine years on each count to be served concurrently and

determined that Jordan was a Tier III sex offender.    Jordan was advised by the trial court

that he would be placed on postrelease control for a mandatory period of five years.      As

a result, Jordan has filed this timely appeal assigning three errors for our review:

       I.     The convictions on Counts One through Four for rape, sexual
              battery, and kidnapping were against the manifest weight of the
              evidence, and not supported by sufficient evidence;


       II.    The trial court erred when it allowed the sexual motivation
              specification to be tried to the court without a written jury waiver
              made in open court pursuant to R.C. 2945.05; and

       III.   The trial court erred when it convicted and sentenced the defendant
               on both rape and kidnapping, as they are allied offenses of similar
               import.

I.     Facts

       {¶4} Jordan was convicted of rape, sexual battery, and two counts of kidnapping

against his girlfriend’s daughter, C.D. C.D. testified at trial that Jordan began sexually

abusing her when she was ten years old. Jordan and C.D.’s mother, J.M., were dating,

and Jordan lived with J.M., C.D., and her siblings since C.D. was two years old. C.D.

testified that Jordan was like a father to her even though Jordan and J.M. were not

married.

       {¶5} When C.D. turned ten years old, Jordan started touching her on her vagina

and buttocks. C.D. testified that Jordan would rub his fingers between her vagina and

would grab her butt. Jordan would take C.D. to his room when J.M. was at work and

would perform sexual acts on her. Jordan began penetrating C.D. anally with his penis

when she was 12 years old causing her to bleed from her rectum. When C.D. told Jordan

about the bleeding, Jordan advised C.D. to put a hot rag on it so it would heal. Once

C.D. turned 14 years old, Jordan started vaginally penetrating C.D. against her will.

When C.D. would refuse or complain, Jordan would punish her by making her clean the

entire house by herself.

       {¶6} C.D. described the first time that Jordan vaginally penetrated her and testified

that Jordan laid C.D. on her back, opened her legs, and put his penis into her vagina. He

then turned C.D. over onto her stomach and anally penetrated her. Jordan would make

C.D. shower each time after he had sex with her so C.D.’s mother would not know what
took place. Jordan also informed C.D. that if she ever told anyone about the sexual

contact, Jordan would make sure that C.D. and her mother would get into trouble.

Jordan would always wait until C.D.’s mother was at work and her siblings were out of

the house when he had sexual contact with C.D.

       {¶7} During a period of time, J.M., C.D., and C.D.’s siblings moved out of

Jordan’s home. During this time, Jordan would pick C.D. up from her home and take her

back to his home telling J.M. that he needed C.D. to do chores. Jordan would then make

C.D. perform oral sex on him. Shortly thereafter, J.M., C.D., and her siblings moved

back in with Jordan, and the abuse continued. C.D. decided to record Jordan admitting

to the abuse. On the recording, Jordan asks C.D. if she thought it was wrong that he had

sex with her. Jordan tells C.D. to forget about it and move on. Once Jordan and C.D.’s

mother broke off their relationship, C.D. told her mother about the abuse. C.D.’s mother

called the police the next day.

       {¶8} After an investigation, Jordan was charged with 35 counts of rape, sexual

battery, kidnapping, and intimidation of a crime or witness. The rape and kidnapping

charges contained specifications for a notice of prior conviction.       The kidnapping

charges contained a sexual motivation specification. Jordan expressed that he wished to

waive the right to have those specifications heard by the jury, and instead asked that the

court hear the evidence pursuant to those specifications.
       {¶9} Jordan was found guilty of four of the 35 counts, including rape, sexual

       battery, and kidnapping.     He was sentenced to nine years imprisonment.       II.

              Sufficiency of the Evidence

       A.     Standard of Review

       {¶10} When an appellate court reviews a claim of insufficient evidence:

       “[T]he 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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d
       229, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
       paragraph two of the syllabus. The weight to be given the evidence and the
       credibility of the witnesses are primarily for the trier of fact. State v.
       Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.

State v. Pridgett, 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, ¶ 14.

       B.     Law and Analysis

       {¶11} In the second prong of Jordan’s first assignment of error, he argues that the

convictions on Counts 1 through 4 for rape, sexual battery, and kidnapping were not

supported by sufficient evidence.

       The test for sufficiency requires a determination of whether the prosecution
       met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga
       No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v. Thompkins, 78 Ohio St.3d 380,
       386, 1997-Ohio-52, 678 N.E.2d 541.

Pridgett at ¶ 15.
      {¶12} Jordan was convicted of rape, in violation of R.C. 2907.02(A)(2); sexual

battery, in violation of R.C. 2907.03(A)(5); and kidnapping, in violation of R.C.

2905.01(A)(2) and (4).   The statutes read as follows:

      No person shall engage in sexual conduct with another when the offender
      purposely compels the other person to submit by force or threat of force.

R.C. 2907.02(A)(2).

      No person shall engage in sexual conduct with another, not the spouse of
      the offender, when any of the following apply: The offender is the other
      person’s natural or adoptive parent, or a stepparent, or guardian, custodian,
      or person in loco parentis of the other person.

R.C. 2907.03(A)(5).

      No person, by force, threat, or deception, or, in the case of a victim under
      the age of thirteen or mentally incompetent, by any means, shall remove
      another from the place where the other person is found or restrain the
      liberty of the other person, for any of the following purposes: To facilitate
      the commission of any felony or flight thereafter.

R.C. 2905.01(A)(2).

      No person, by force, threat, or deception, or, in the case of a victim under
      the age of thirteen or mentally incompetent, by any means, shall remove
      another from the place where the other person is found or restrain the
      liberty of the other person, for any of the following purposes: To engage
      in sexual activity, as defined in section 2907.01 of the Revised Code, with
      the victim against the victim’s will.

R.C. 2905.01(A)(4).

      {¶13} C.D. testified that Jordan was like a father to her. C.D.’s mother testified

that Jordan “took up the father role immediately upon starting their relationship.”   (Tr.

622.) C.D. lived with Jordan from the time she was two-years old until she was 16 years

old, with the exception of a small period of time of six months. C.D. testified that
Jordan financially provided for her and her siblings and acted as a father to them.    For

the purpose of R.C. 2907.03(A)(5), Jordan argues that he was not in loco parentis of C.D.

 We disagree.

      “The term ‘in loco parentis’ means ‘charged, factitiously, with a parent’s
      rights, duties, and responsibilities.’” A person who stands in loco parentis
      to a child has assumed similar duties to that of a guardian or custodian, only
      not through legal proceedings. In order to meet the definition of in loco
      parentis, a person must not only assume a dominant parental role, but must
      also be relied upon by the child for support. Furthermore, “[t]he key
      factors of an in loco parentis relationship have been delineated as ‘the
      intentional assumption of obligations incidental to the parental relationship,
      especially support and maintenance.’”

(Citations omitted.) In re J.B., 8th Dist. Cuyahoga No. 103521, 2016-Ohio-5513, ¶ 48,

quoting State v. Burgett, 3d Dist. Marion No. 9-09-14, 2009-Ohio-5278, ¶ 23.
       {¶14} C.D. testified that Jordan began sexually touching her when she was ten

years old and started penetrating her anally when she turned 12, and vaginally when she

turned 14 years old. Jordan would take C.D. from her room to his room to abuse her,

and kept her in the house so he could continue to abuse her. In addition, Jordan told

C.D. that if she told, C.D. and her mother would get into trouble. Jordan argues that he

had consensual sex with C.D. and that there is no evidence that he forced or threatened

her.   However, we disagree. Because of the parent-child relationship that existed

between Jordan and C.D., Jordan did not have to physically force C.D. to engage in

sexual intercourse.    “In certain scenarios, especially those involving parent-child

relationships, a child may feel compelled or psychologically coerced into submitting to

her aggressor for reasons other than an overt show of force or threats of force.”   State v.

Weems, 8th Dist. Cuyahoga No. 102954, 2016-Ohio-701, ¶ 25.

       {¶15} When asked why she initially did not tell someone about Jordan sexually

assaulting her, C.D. responded that she was scared that Jordan would hurt her. C.D.

testified about a time when someone in the household snuck and ate Jordan’s peanuts.

The person would not admit to it, so Jordan instructed the children to stand against the

wall and hold books until someone confessed.         C.D., although she did not eat the

peanuts, confessed because her arms were tired from holding the books.     Later C.D. told

Jordan that it was not her that ate the peanuts, but she falsely confessed in order to stop

the punishment.   As a result of her false confession,   Jordan made C.D. clean the entire

house by herself, and if she stopped, she would get into trouble. C.D. also stated that
Jordan put a blade to her neck and told her that he was not one to be played with. C.D.

described that she was very scared because Jordan was angry, and she thought he would

hurt her in addition to hurting her mother.

       {¶16} Although the appellant claims that direct force was not used to engage C.D.

into having sex with him, “force may be established by testimony that the defendant

purposely compelled the victim by overcoming her will by fear.” State v. Rupp, 7th

Dist. Mahoning No. 05 MA 166, 2007-Ohio-1561, ¶ 40. It can be determined that “the

force can be established by a victim’s testimony that she feared retaliation if she did not

engage in sexual conduct where testimony also showed that he previously instilled fear in

the victim with stories of violence.”   Id.   “Thus, it is up to the jury to determine if they

believe that it was the defendant’s intent to instill fear through his stories and also to

determine if they believe that the victim was in fact instilled with such fear that she could

not exercise her will.”    Id.   We can determine from C.D.’s testimony that Jordan

instilled fear in her from his previous behavior of violence.

       {¶17}     Jordan also transported C.D. from her home in Euclid to his home under

the guise of doing chores, to perform oral sex on C.D., and have oral sex performed on

Jordan.   C.D. also recorded Jordan admitting to having sex with her.          The evidence

admitted at trial would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.   The second part of the first assignment of error is overruled.
III.   Manifest Weight of the Evidence

       A.    Standard of Review

       {¶18} In reviewing a claim challenging the manifest weight of the evidence, the

question to be answered is whether,

       “[T]here 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.’”

(Emphasis deleted.) Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶

81.

       {¶19} “Although a court of appeals may determine that a judgment of a trial court

is sustained by sufficient evidence, that court may nevertheless conclude that the

judgment is against the weight of the evidence.” Thompkins, 78 Ohio St.3d 380, 386,

1997-Ohio-52, 678 N.E.2d 541. Weight of the evidence concerns:

     “[T]he 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.
(Emphasis added.) Id. at 387, citing Black’s Law Dictionary 1433 (6th Ed.1990).
       B.     Law and Analysis

       {¶20} In the first part of Jordan’s first assignment of error, he argues that the

convictions on Counts 1 through 4 for rape, sexual battery, and two counts of kidnapping

were against the manifest weight of the evidence.

       “A manifest weight challenge questions whether the state met its burden of
       persuasion at trial.” Although an appellate court reviews credibility when
       considering the manifest weight of the evidence, the credibility of witnesses
       and the weight of the testimony are primarily for the trier of fact. The trier
       of fact 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.’”

(Citations omitted.) Pridgett, 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, ¶ 21.

       {¶21} Specifically, Jordan argues that because there was not any physical evidence

to substantiate the claims made by C.D., the jury should not have convicted him. He

contends that C.D. had no physical evidence or injury of repeated anal penetration.

However, “a physical injury is not a condition precedent to a conviction for rape; not all

rape victims exhibit signs of physical injury.” (Citations omitted.) Id. at ¶ 22. See also

State v. Evans, 8th Dist. Cuyahoga No. 85396, 2005-Ohio-3847, ¶ 36 (“physical harm is

not a necessary element of rape and we are mindful that witness credibility rests primarily

with the trier of fact”). The jury listened to all of the testimony by each witness. They

were able to observe the witnesses’ demeanors, gestures, and voice inflections and used

these observations in weighing the credibility of C.D.

       {¶22} Jordan also argues that there is no corroborating evidence regarding the

rapes and sexual abuse.      However it has been well established that “there is no
requirement, statutory or otherwise, that a victim’s testimony be corroborated as a

condition precedent to a rape conviction.” State v. Leonard, 8th Dist. Cuyahoga No.

98626, 2013-Ohio-1446, ¶ 46. “A victim’s testimony, if believed, is sufficient to obtain

and sustain a rape conviction.” State v. Williams, 8th Dist. Cuyahoga No. 57464, 1990

Ohio App. LEXIS 5221 (Nov. 29, 1990). Thus, the first part of the appellant’s first

assignment of error is overruled.

IV.    Jury Waiver

       A.     Standard of Review

       {¶23} In a criminal case,

       [W]here the defendant elects to waive the right to trial by jury,
       R.C. 2945.05 mandates that the waiver must be in writing, signed by the
       defendant, filed in the criminal action, and made part of the record thereof.
       Absent strict compliance with the requirements of R.C. 2945.05, a trial
       court lacks jurisdiction to try the defendant without a jury. State v. Pless,
       74 Ohio St.3d 333, 658 N.E.2d 766 (1996). The failure to comply with
       R.C. 2945.05 may be remedied only in a direct appeal from a criminal
       conviction. State v. Coleman, 8th Dist. Cuyahoga No. 69202, 1996 Ohio
       App. LEXIS 1876 (May 9, 1996).

State v. Tango, 2015-Ohio-5133, 53 N.E.3d 961, ¶ 18 (8th Dist.).

       B.     Law and Analysis

       {¶24} In Jordan’s second assignment of error, he contends that the trial court erred

when it allowed the sexual motivation specifications to be tried to the court without a

written jury waiver made in open court pursuant to R.C. 2945.05. R.C. 2945.05 states,

       In all criminal cases pending in courts of record in [Ohio], the defendant
       may waive a trial by jury and be tried by the court without a jury. Such
       waiver by a defendant, shall be in writing, signed by the defendant, and
       filed in said cause and made a part of the record thereof. It shall be entitled
      in the court and cause, and in substance as follows: “I * * *, defendant in
      the above cause, hereby voluntarily waive and relinquish my right to a trial
      by jury, and elect to be tried by a Judge of the Court in which the said cause
      may be pending. I fully understand that under the laws of this state, I have
      a constitutional right to a trial by jury.”

       Such waiver of trial by jury must be made in open court after the defendant

      has been arraigned and has had opportunity to consult with counsel. Such

      waiver may be withdrawn by the defendant at any time before the

      commencement of the trial.

      {¶25} Jordan has misunderstood the applications of R.C. 2945.05. “[T]he Ohio

Supreme Court has held that the provisions of R.C. 2945.05 do not apply to requests

made by a defendant to have the trial judge determine specifications.” State v. Oldham,

8th Dist. Cuyahoga No. 73644, 1999 Ohio App. LEXIS 2152 (May 13, 1999), citing State

v. Nagel, 84 Ohio St.3d 280, 703 N.E.2d 773 (1999).

      “R.C. 2945.05, by its very terms, applies to pending ‘criminal cases.’ * * *
      Our understanding of the phrase is that it encompasses the underlying
      charge or charges in the criminal action against the accused but does not
      necessarily encompass the specification or specifications attached thereto.
      The reason, of course, is that a specification is, by its very nature, ancillary
      to, and completely dependent upon, the existence of the underlying criminal
      charge or charges to which the specification is attached. Therefore, we
      have difficulty understanding precisely how it is that R.C. 2945.05 could be
      found to apply in circumstances where, as here, a defendant has received a
      jury trial on the merits of the underlying charges alleged in the indictment.”

Id.

      {¶26} Jordan requested that the sexual motivation specifications be tried by the

judge instead of the jury. We find that since the Ohio Supreme Court has held that R.C.

2945.05 do not apply to this situation, we overrule Jordan’s second assignment of error.
V.     Allied Offenses

       A.     Standard of Review

       {¶27} “An appellate court applies a de novo standard of review when reviewing

whether two offenses are allied offenses of similar import.” State v. Boczek, 8th Dist.

Cuyahoga No. 103811, 2016-Ohio-5708, ¶ 4.

       B.     Law and Analysis

       {¶28} In Jordan’s third assignment of error, he argues that the trial court erred

when it convicted and sentenced him on both rape and kidnapping, because they were

allied offenses of similar import.

       {¶29} R.C. 2941.25 provides:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
       may contain counts for all such offenses, but the defendant may be
       convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of
       dissimilar import, or where his conduct results in two or more offenses of
       the same or similar kind committed separately or with a separate animus as
       to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

       {¶30} When determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25,

       [C]ourts must ask three questions when defendant’s conduct supports
       multiple offenses: (1) Were the offenses dissimilar in import or
       significance — in other words, did each offense cause separate, identifiable
       harm? (2) Were they committed separately? and (3) Were they committed
       with separate animus or motivation? An affirmative answer to any of the
       above will permit separate convictions. The conduct, the animus, and the
       import must all be considered.
State v. Boczek, 8th Dist. Cuyahoga No. 103811, 2016-Ohio-5708, ¶ 6, citing State v.

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.

       {¶31} First, we must determine that each offense of rape and kidnapping caused a

separate, identifiable harm.   Jordan committed rape against C.D. when he forcibly

engaged in sexual conduct with her. “The kidnapping statute ‘punishes certain removal

or restraint done with a certain purpose and the eventual success or failure of the goal is

irrelevant.’” State v. Price, 8th Dist. Cuyahoga No. 99058, 2013-Ohio-3912, ¶ 28; State

v. Smith, 9th Dist. Summit Nos. 23468 and 23464, 2007-Ohio-5524, ¶ 41, quoting State v.

Matthieu, 3d Dist. Mercer Nos. 10-02-04 and 10-02-05, 2003-Ohio-3430, ¶ 17.

       {¶32} Jordan kidnaped C.D. by removing her from her home under the guise of

cleaning his home. While C.D. and Jordan were living together, Jordan would send

C.D.’s siblings to the store and restrained C.D. so she could not leave the home. C.D.

was harmed by Jordan when she was removed from her home and taken to his home

without her permission. This harm is separate and identifiable because as C.D. traveled

from her home in Euclid to Jordan’s home in Cleveland, she feared Jordan and what

further harm he would inflict upon her. She was further harmed by being forced to

engage in sexual conduct with Jordan.

       {¶33} Second, we must determine that the rape and kidnapping were committed

separately. There are incidents where the victim was restrained while being sexually

assaulted.   However, Jordan was not charged with that type of kidnapping. Rather,

C.D.’s kidnapping occurred prior to the incident of rape when Jordan removed C.D. from
her home against her will.

       {¶34} Third, we must determine whether the rape and kidnapping were committed

with a separate animus or motivation. Like the facts in State v. Person, 9th Dist. Summit

No. 27600, 2016-Ohio-681, ¶ 29, Jordan’s kidnapping of C.D. was separate from the

subsequent rape that occurred and was motivated by a separate animus.               Jordan

kidnapped C.D. to isolate her from her family. Once she was in his home, he raped her.

Therefore, the rape and kidnapping were committed with a separate animus or motivation.

 Thus, Jordan’s third assignment of error is overruled.

       {¶35} Judgment is affirmed.

       It is ordered that the appellee recover from 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.

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

the Rules of Appellate Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
TIM McCORMACK, J., CONCUR
