[Cite as State v. Curry, 2018-Ohio-683.]


                  Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 105638



                                           STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                           RONALD CURRY

                                                       DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED




                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-15-597049-A

        BEFORE: S. Gallagher, P.J., Blackmon, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: February 22, 2018
ATTORNEY FOR APPELLANT

John T. Castele
Rockefeller Building, Suite 1310
614 W. Superior Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Edward R. Fadel
          Oscar Albores
          Daniel T. Van
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




SEAN C. GALLAGHER, P.J.:

       {¶1} Ronald Curry was convicted of four counts of aggravated robbery, four counts of

rape or attempted rape, two counts of kidnapping, and two three-year firearm specifications. The

trial court imposed an aggregate, nine-year term of imprisonment — the firearm specifications

being imposed consecutive to the other and the underlying concurrent term on all other sentences.

 We affirm.

       {¶2} In July 1995, Curry and an accomplice, both wearing masks to hide their identities,

robbed two male and two female victims at gunpoint in the backyard of the home of one of the

victims. At trial, the victims testified that several were deprived of their property, but in the

original police report, the investigating police officer only noted that one of the victims had

property stolen during the robbery.
         {¶3} The two female victims were forcibly removed to secluded areas on the property and

were raped. Each assailant marched one of the female victims to a different area — one was

taken to a bedroom inside the house and the other behind the garage. The male victims were left

lying prostrate in the backyard, and they fled the scene when the assailants took the female

victims. One victim, taken into the bedroom, was vaginally penetrated but refused to perform

oral sex on the assailant. That assailant then met up with Curry, who had just finished raping the

other female victim behind the garage. The second assailant then forced the second victim to

perform oral sex on him.

         {¶4} Curry and his accomplice fled the scene. Police were immediately called, and both

women were taken to the hospital where evidence was preserved. In 2013, a test was conducted

in the attempt to match the DNA, but only one of the samples collected was tested — the vaginal

swab from the victim who was sexually assaulted by both Curry and his accomplice behind the

garage. Curry could not be excluded as the assailant. The oral swab from that same victim was

not retested. Curry testified at trial and claimed that he had consensual intercourse with the

victim at his birthday party days before the attack.1 The victim testified to never having met

Curry.




         This is being generous with the facts. Curry’s testimony was not definitive. When asked if
         1

he had a specific recollection of an encounter with the victim, Curry claimed he had sex with “different
young ladies, young and older.” On follow-up, Curry was asked if he could specifically remember
any of the women he had sex with during the relevant time frame. He could not recall anyone. Tr.
701:11-15. In other words, Curry’s claim of consensual sex with the victim is based on his belief that
she must have been one of the many women he had sex with the week before the attack, but he was
unable to specifically remember the victim.
       {¶5} Curry was indicted, and a summons was issued on the last day of the 20-year statute

of limitations.2 Following a jury trial, Curry was found guilty of all charges. This timely appeal

followed.

       {¶6} In the first assignment of error, Curry claims the state failed to return the indictment

under Crim.R. 6(F) in order to timely commence the prosecution under R.C. 2901.13(F), which

provides that a prosecution is commenced on the date the indictment is returned, on the date a

lawful arrest without warrant is made, or on the date that a warrant, summons, citation, or other

process is issued.

       {¶7} An indictment is returned under Crim.R. 6(F) if

       (1) the indictment is found upon the concurrence of seven or more grand jurors; (2)
       the foreman or deputy foreman signs the indictment; (3) the indictment is returned
       to the judge of the common pleas court who is supervising the grand jury; and (4)
       the indictment is filed with the clerk of courts, who shall endorse thereon the date
       of filing and enter the case on the appearance and trial dockets.

State v. Haynes, 2015-Ohio-4582, 46 N.E.3d 1136, ¶ 13 (8th Dist.), citing State ex rel. Collins v.

O’Farrell, 61 Ohio St.3d 142, 145, 573 N.E.2d 113 (1991). Curry argues that the state failed to

demonstrate that the indictment was presented to the judge of the common pleas court who was

supervising the grand jury, and therefore, the indictment was not “returned” by July 1, 2015. We

need not address this argument because a summons was timely issued under R.C. 2901.13(F), and

thus commencement in this case is dependent on the summons, not the return of the indictment.

       {¶8} Curry contends that the summons was not issued until a day after the statute of

limitations ran, when the capias was issued.          R.C. 2901.13(F) distinguishes between the


       2
           The amendment to R.C. 2901.13(A)(4) effective July 15, 2015, which extended the statute of
limitations for violations of R.C. 2907.02 an additional five years, was not effective until after the
original limitations period for Curry’s conduct had expired.
summons and the warrant for arrest. An action is commenced by issuing either process; the

statute does not require both. Id.; see, e.g., State v. Morris, 20 Ohio App.3d 321, 323, 486

N.E.2d 168 (10th Dist.1984). According to the notation on the appearance docket, the clerk of

courts timely issued the summons before the expiration of the statute of limitations and a warrant

was issued the following day. The prosecution was timely commenced under R.C. 2901.13(F),

and the first assignment of error is overruled.

       {¶9} In the second assignment of error, Curry contends that the indictment should have

been dismissed based on preindictment delay.

       {¶10} It is a due process violation under the United States and Ohio Constitutions to cause

an unjustifiable delay between the commission of an offense and a defendant’s indictment if the

delay results in actual prejudice. State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d

688, ¶ 12, quoting State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of

the syllabus. If an offender “presents evidence of actual prejudice, the burden shifts to the state

to produce evidence of a justifiable reason for the delay.” Id. at ¶ 13, citing State v. Whiting, 84

Ohio St.3d 215, 217, 1998-Ohio-575, 702 N.E.2d 1199; State v. Adams, 144 Ohio St.3d 429,

2015-Ohio-3954, 45 N.E.3d 127, ¶ 99.

       {¶11} “The ‘possibility that memories will fade, witnesses will become inaccessible, or

evidence will be lost is not sufficient to establish actual prejudice.’” Id. at ¶ 21, citing Adams at

¶105, and United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The

possibility of prejudice is inherent in any extended delay, and the statutes of limitations

sufficiently protect against those concerns. Id., quoting Marion at 326. As the Ohio Supreme

Court clarified, however, that does not mean “that demonstrably faded memories and actually

unavailable witnesses or lost evidence cannot satisfy the actual-prejudice requirement.” Id.
       {¶12} In addition to vague assertions of faded memory and the unavailability of police

officers, who according to Curry conducted a shoddy investigation anyway, one of the rape kits

disappeared and was not available for DNA testing, and the oral swab relating to the victim

behind the garage was not tested for an unknown reason.            This lost or missing evidence

demonstrated actual prejudice because, according to Curry, the state claimed that he was the

assailant who forced the victim to the bedroom, and therefore, the state’s theory might have been

proven false by the DNA evidence contained in the untested samples relating to the identity of that

assailant. The foundation of Curry’s argument is perplexing. The theory that Curry forced one

victim to the bedroom and raped the other on his way out was not advanced by the state or even

supported by the DNA evidence produced at trial — the only evidence tying Curry to the crimes.

Curry could not be excluded as the source of the DNA obtained from the vaginal swab of the

victim who was raped behind the garage.

       {¶13} The missing evidence has no bearing on the evidence of Curry’s guilt, which was

entirely premised on Curry being identified as the attacker of the victim behind the garage. See

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 106 (missing evidence of alibi,

allegedly placing defendant in another location at the time of death, was irrelevant based on the

evidence at trial). Under the state’s theory, and based on the evidence presented at trial, it would

be expected that Curry would be excluded as the source of the DNA in the untested samples —

those samples would have revealed the accomplice’s identity.         Curry has not demonstrated

substantial prejudice caused by the untested samples.

       {¶14} Curry’s remaining claims of faded memories or of an incomplete investigation,

standing alone, are not sufficient to demonstrate prejudice. Id. at ¶ 105, citing Marion, 404 U.S.
307, 325-326, 92 S.Ct. 455, 30 L.Ed.2d 468. Curry has not met his burden of demonstrating

prejudice caused by the delay, and the second assignment of error is overruled.

       {¶15} In the third assignment of error, Curry claims his convictions were against the

manifest weight of the evidence.

       {¶16} When reviewing a claim challenging the manifest weight of the evidence, the court,

reviewing the entire record, must 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. State v. Thompkins, 78 Ohio St.3d, 380, 387, 1997-Ohio-52,

678 N.E.2d 541.      Generally, determinations of credibility and weight of the testimony are

reserved for the trier of fact.        State v. Lipkins, 10th Dist. Franklin No. 16AP-616,

2017-Ohio-4085, ¶ 36, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus.

       {¶17} In other words, the “jury may take note of the inconsistencies and resolve them

accordingly, ‘believing all, part, or none of a witness’s testimony.’” Id., quoting State v. Raver,

10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61,

67, 197 N.E.2d 548 (1964). We must remember that

       [a]n appellate court considering a manifest weight challenge “may not merely
       substitute its views 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 ¶ 37, quoting State v. Harris, 10th Dist. Franklin No. 13AP-770, 2014-Ohio-2501, ¶ 22,

citing Thompkins at 387. A conviction will only be reversed as being against the manifest weight
of the evidence “in the most ‘exceptional case in which the evidence weighs heavily against the

conviction.’” Id., quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist.1983).

       {¶18} Curry largely focuses on the inconsistent testimony between the four victims and

the investigating police officer, and the lack of a thorough police investigation. None of that

explains the DNA evidence — the only evidence identifying Curry as one of the assailants. On

that point, the jury was tasked with assessing Curry’s vague assertion of having consensual sex

with the victim as it weighed against the victim’s testimony that she never met Curry.

Essentially, Curry is asking this court to believe his testimony over that of the victim. The jury

did not find Curry credible. “A conviction is not against the manifest weight of the evidence

because the trier of fact believed the state’s version of events over the defendant’s version.”

Lipkins at ¶ 39, citing State v. Gale, 10th Dist. Franklin No. 05AP-708, 2006-Ohio-1523, ¶ 19.

This is not the exceptional case in which we can find the jury lost its way. We overrule the third

assignment of error.

       {¶19} In the fourth assignment of error, Curry challenges the sufficiency of the state’s

evidence.

       {¶20} A claim of insufficient evidence raises the question whether the evidence is legally

sufficient to support the verdict as a matter of law.      Thompkins, 78 Ohio St.3d 380, 386,

1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, “[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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The
appellate inquiry under the current circumstances focuses on the sufficiency of the state’s

evidence on each element to support the convictions.

       {¶21} Curry claims that his identity was not sufficiently proven, that there is no evidence

of an actual theft as it pertains to three of the four victims in support of the four aggravate robbery

charges, and that he cannot be convicted of complicity in the rape of the other victim. None of

those claims have merit.

       {¶22} Curry’s identity was sufficiently established through the DNA evidence.                His

explanation for the DNA evidence boils down to his credibility and the weight of the evidence.

Thus, his sufficiency of the evidence argument is essentially one challenging the weight of the

evidence, which is overruled.

       {¶23} With respect to the aggravated robbery counts, Curry claims that an offender must

actually commit a theft offense against each victim, otherwise there is insufficient evidence

supporting the aggravated robbery charge. R.C. 2911.01(A)(1) provides that no person, either by

attempting or committing a theft offense, shall have, possess, or control a deadly weapon that is

brandished. An offender need only attempt to commit a theft offense. Actual theft of property is

not an element. R.C. 2911.01(A)(1). In addition, the victims testified to losing property during

the robbery. Although the police report differs from their trial testimony, their credibility is not a

consideration with regard to the sufficiency of the state’s evidence.

       {¶24} Finally with respect to the sufficiency of the evidence, Curry offers no legal

authority in support of his claim that he cannot be found guilty of complicity in the rapes

committed by his accomplice as required under App.R. 16(A)(7).                It is not this court’s

responsibility to provide support for an appellant’s argument. The fourth assignment of error is

overruled.
       {¶25} In the fifth assignment of error, Curry claims that the trial court was required to

merge the kidnapping, as charged in Count 15, with the attempted rape charge, as charged in

Count 6 of the indictment. The kidnapping relates to the asportation of the victim to the bedroom

to facilitate the sexual assault. The state claimed Curry was a co-conspirator for the unknown

accomplice’s crimes.    On appeal, Curry contends that because the trial court merged the

kidnapping with the rape, it must also merge the kidnapping with the separate attempted rape

charge. At sentencing, however, Curry expressly requested that the kidnapping be merged with

either the rape or the attempted rape, but not both. Tr. 842:4-6; 847:1-12 (Curry affirmatively

responded to the trial court’s request for confirmation that the attempted rape charged merged

with no other count if the kidnapping merged with the rape charge). The trial court merged the

offenses as requested by Curry.     Any error in this regard was, therefore, invited.     State v.

Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 100, citing Hal Artz

Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph

one of the syllabus (“A party will not be permitted to take advantage of an error which he himself

invited or induced”).

       {¶26} Nevertheless, not all kidnapping charges merge with the related sexual assault

charges. In State v. Dennis, 8th Dist. Cuyahoga No. 104742, 2017-Ohio-4437, ¶ 23, we affirmed

separate convictions for kidnapping and rape when the evidence demonstrated that the offender

marched the victim through a field to facilitate the rape.     Id.   In this case, Curry has not

demonstrated that the counts relating to the accomplice’s conduct in forcing the victim to the

bedroom from the backyard to facilitate the sexual assault constituted allied offenses of similar

import. We overrule the final assignment of error.

       {¶27} The convictions are affirmed.
       It is ordered that 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. 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.



SEAN C. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
