[Cite as State v. White, 2017-Ohio-1243.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-

JOHNNY C. WHITE                                    Case No. 2016CA00107

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2015CR1481


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         March 31, 2017




APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO,                               WAYNE E. GRAHAM, JR.
Prosecuting Attorney,                          4450 Belden Village St., N.W.
Stark County, Ohio                             Suite 703
                                               Canton, Ohio 44718
By: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016CA00107                                                      2

Hoffman, P.J.


       {¶1}   Defendant-appellant Johnny C. White appeals his conviction and sentence

entered by the Stark County Court of Common Pleas on one count of rape, in violation of

R.C. 2907.02(A)(2). Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   In 2015, S.H. was seventeen years-old and living with her mother and

siblings in Alliance, Ohio. Her mother was incarcerated in August of 2015.

       {¶3}   S.H. met Appellant in a park. Appellant was twenty seven years-old and

homeless. Appellant represented to S.H. he was nineteen years-old, and his entire family

was deceased, including his children. Appellant gave S.H. a cell phone so he could talk

to her. S.H. permitted Appellant to stay at her house on at least two occasions. S.H. and

Appellant engaged in consensual sexual conduct, including digital penetration.

       {¶4}   Appellant's ex-girlfriend contacted S.H. informing her Appellant was in fact

twenty seven years-old and had living children. The ex-girlfriend told S.H. everything

Appellant had told to S.H. was a lie.

       {¶5}   On August 6, 2015, S.H. was home alone sitting on the front porch when

Appellant walked past her home. S.H. maintains she did not want to talk to Appellant due

to her conversation with his ex-girlfriend, and went inside. She prepared for bed in the

bathroom, and when she came out Appellant was on the couch. Appellant pressured S.H.

to have sex, and she said no. Appellant then put her on the floor, wrapped his arms

around her arms, kissed her neck, and removed her pants and underwear. He then

engaged in vaginal intercourse. S.H. maintains she told Appellant no, and he persisted

wrapping his arms around her arms, and pressing his legs against her legs.
Stark County, Case No. 2016CA00107                                                          3


       {¶6}   In the morning, S.H. contacted the Alliance Police Department. S.H.

underwent a rape examination. The Y-STR test detected a single male DNA profile

consistent with Appellant's on the vaginal swab. The police contacted Appellant, who

denied sexual conduct with S.H. Following the return of the DNA evidence, Appellant

admitted to consensual sexual intercourse with S.H.

       {¶7}   Following a jury trial, Appellant was found guilty of rape, in violation of R.C.

2907.02(A)(2), and not guilty of aggravated burglary, in violation of R.C. 2911.11(A)(2).

       {¶8}   On May 13, 2015, the trial court sentenced Appellant to ten years in prison

on the offense of rape. The trial court further designated Appellant a Tier III sex offender.

       {¶9}   Appellant appeals, assigning as error,

       {¶10} “I. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE.

       {¶11} “II. THE TRIAL COURT'S FINDING THAT APPELLANT IS A TIER III SEX

OFFENDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                                 I.

       {¶12} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence 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.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
Stark County, Case No. 2016CA00107                                                        4


       {¶13} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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,

paragraph two of the syllabus (1991). Because the trier of fact is in a better position to

observe the witnesses' demeanor and weigh their credibility, the weight of the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass

(1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the

syllabus.

       {¶14} Appellant was convicted of rape, in violation of R.C. 2907.02(A)(2), “(A)(2)

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.”

       {¶15} S.H. testified at trial when she came out of the bathroom on the night in

question and found Appellant in her house, she was scared and Appellant kept saying he

wanted to have sex. Tr. at 202. Appellant told her, "You know you want it." S.H. told

Appellant she did not want to have sex, and told him to get off of her. Tr. 204. He then

laid S.H. on the floor and started kissing and touching her leg. S.H. testified she tried to

push his hand away, but he was too strong. Tr. at 203. When he took her pants off,

Appellant engaged in vaginal intercourse.       Id. S.H. testified Appellant's arms were

completely around her, wrapped tight, and there was "no way of [her] getting out." Tr. at

207. S.H. eventually “gave up” testifying Appellant was too strong for her. Tr. at 205. On

physical examination after the incident, S.H. had various marks on her neck and arms.
Stark County, Case No. 2016CA00107                                                         5


       {¶16} During his interview with law enforcement, Appellant initially denied any

sexual conduct with S.H. However, he later admitted to consensual sexual intercourse

after the DNA evidence returned.

       {¶17} Again, the weight of the evidence and the credibility of the witnesses rests

with the trier of fact. Viewing the evidence in a light most favorable to the State, we find

a reasonable jury could find the elements of rape proven beyond a reasonable doubt. We

find Appellant's conviction was not against the manifest weight of the evidence, nor based

upon insufficient evidence.

       {¶18} The first assignment of error is overruled.

                                                II.

       {¶19} Appellant maintains the trial court's designation of Appellant as a Tier III sex

offender subject to registration is against the manifest weight of the evidence. We

disagree.

       {¶20} R.C. 2950.01(G)(1)(a) requires the trial court designate an offender

convicted of a sexually oriented offense a Tier III sex offender, by operation of law. The

classification is based solely on the offense for which Appellant was convicted, and the

trial court does not have discretion in imposing the classification on the offender. Miller

v. Cordray, 184 Ohio App.3d 754, 2009-Ohio-3617.

       {¶21} The second assignment of error is overruled.



       {¶22} Appellant's conviction and sentence entered by the Stark County Court of

Common Pleas is affirmed.
Stark County, Case No. 2016CA00107   6


By: Hoffman, P.J.

Wise, John, J. and

Baldwin, J. concur
