[Cite as State v. Jeffries, 2018-Ohio-162.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 105379




                                        STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   CEDRIC N. JEFFRIES
                                                     DEFENDANT-APPELLANT




                               JUDGMENT:
                    AFFIRMED IN PART; REVERSED IN PART
                             AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-16-606245-A

        BEFORE: Keough, P.J., Laster Mays, J., and Jones, J.

        RELEASED AND JOURNALIZED: January 18, 2018
ATTORNEY FOR APPELLANT

Eric M. Levy
55 Public Square, Suite 1600
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Jeffrey Schnatter
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Cedric Jeffries (“Jeffries”), appeals from the trial

court’s judgment finding him guilty of rape and kidnapping and sentencing him to 15

years to life in prison. For the reasons that follow, we affirm in part; reverse in part; and

remand for a hearing regarding the imposition of court costs.

                                       I. Background

       {¶2} Jeffries was charged in a four-count indictment as follows: Count 1, rape

in violation of R.C. 2907.02(A)(1)(b); Count 2, kidnapping in violation of R.C.

2905.01(A)(4) with a sexual motivation specification; Count 3, rape in violation of R.C.

2907.02(A)(2); and Count 4, kidnapping in violation of R.C. 2905.01(A)(4) with a sexual

motivation specification.       Counts 1 and 2 related to an incident that occurred on

December 23, 2011, the victim’s twelfth birthday, and Counts 3 and 4 related to an

incident that occurred in March 2016, when the victim was 16 years old. 1 Jeffries

pleaded not guilty and the case proceeded to a jury trial.

       {¶3} The evidence adduced at trial demonstrated that Jeffries and R.S., the

victim’s mother, had an on and off relationship for several years. During those years,

R.S. had one child with Jeffries and two children with other men, including D.S., the


       1
         Counts 1 and 2 of the indictment originally charged that the offenses occurred on December
23, 2012. Both the prosecutor and defense counsel agreed on the record that the correct date of the
alleged offense was December 23, 2011, and informed the trial court that the indictment should be so
amended.     Although the trial court never journalized the amendment, it is clear that Counts 1 and 2
were tried with the amended date. Jeffries does not raise any argument on appeal that he was
prejudiced by the amendment.
victim in this case. R.S. eventually lost custody of the children, and they went to foster

care.

        {¶4} D.S. testified that she lived in three different foster homes before she was

six years old, when she went to live with H.G., Jeffries’s mother, who had obtained

custody of R.S.’s three children. Jeffries also lived in the home. D.S. was not Jeffries’s

biological child but she testified that she considered him to be her father and called him

“Dad.”

        {¶5} D.S. testified that about a year after she moved in, Jeffries began touching

her inappropriately. She said the first incident she remembered was when Jeffries lay on

his back on the couch, placed her on his stomach, placed his hand on her buttocks, and

then moved his hand around. Both D.S. and Jeffries were clothed during this incident.

        {¶6} D.S. testified that the inappropriate touching continued as she grew older.

She recalled an incident when she was about nine years old when Jeffries came into the

living room while she was watching television and forced her to take her clothes off and

sit on his lap on the couch. She testified that there were other incidents where Jeffries

would force her to take her clothes off and sit on his lap; she said that sometimes he was

dressed during these incidents but at other times he would have his pants down. She said

that during these incidents, Jeffries would touch her buttocks, breasts, and vagina. D.S.

testified that the incidents occurred when H.G. left the house on the weekends or after her

brothers were in bed.
       {¶7} D.S. testified that on December 23, 2011, her twelfth birthday, Jeffries

instructed her to take her clothes off and lay on the couch. She said that Jeffries, who

was undressed, laid on top of her and after touching her vagina, inserted his fingers and

then his penis into her vagina. D.S. testified that she did not feel like she could leave or

get away from Jeffries during this incident.

       {¶8} D.S. testified that this type of sexual activity continued for “years.” She

said that she never told anyone about the abuse because she was afraid that no one would

believe her, or she would be sent back to foster care.

       {¶9} In March 2016, when she was sixteen years old, D.S. finally told Jacqueline

Bell, the principal at her high school, about the abuse because she “was just tired of it.”

D.S. testified that one or two weeks before she told Ms. Bell, Jeffries came into her

bedroom one night as she was sleeping. She said she was sleeping on her stomach,

dressed in pajama pants, underwear, and a tee-shirt, when she awoke to Jeffries lying on

top of her. D.S. testified that Jeffries pulled her pajama pants and underwear down, and

then pulled his own pants off. She said that he then got back on top of her and put his

penis in her vagina. She testified that during this incident, she did not feel like she could

leave and had no choice but to stay.

       {¶10} After Jeffries left her room, D.S. decided to run away. She packed two

bags and left home at approximately 11 p.m. D.S. said she took Jeffries’s cell phone

with her because he had hidden her phone.
       {¶11} During the hours after D.S. ran away, Jeffries called her over 30 times but

D.S. did not answer. He also texted her at approximately 10:30 a.m. the following

morning, telling her “police on way” and asking her to “don’t tell on me.”

       {¶12} After she ran away, D.S. walked to her high school and when it opened at 7

a.m., told Bell about the abuse. Bell called Cuyahoga County Department of Children

and Family Services (“CCDCFS”), and CCDCFS social worker Shannon Sneed

responded to the school and interviewed D.S. The police were called, and Jeffries was

eventually arrested.

       {¶13} At trial, Jeffries denied that he ever sexually abused D.S. He admitted

sending a text to her the morning after she ran away, but said that he texted “police on

way” only because he did not want D.S. to be scared when the police arrived at her

school. He also said he intended to text “just talk to me” but the old cell phone he was

using somehow changed his text to “don’t tell on me.”

       {¶14} The jury found Jeffries guilty of all counts. The prosecutor and defense

                       counsel agreed that for purposes of sentencing, Counts 1 and 2

                       merged and Counts 3 and 4 merged. The state elected to proceed to

                       sentencing on Counts 2 and 3. The trial court sentenced Jeffries to

                       life in prison on Count 2, with parole eligibility after 15 years, to run

                       concurrent to 10 years incarceration on Count 3. The court also

                       imposed court costs. This appeal followed.

                              II.    Law and Analysis
A.     Evidence of Victim’s Prior Allegations of Nonconsensual Sexual Abuse
       Precluded From Trial

       {¶15} Prior to trial, the trial court held an in camera hearing pursuant to State v.

Boggs, 63 Ohio St.3d 418, 588 N.E.2d 318 (1992), to determine the admissibility at trial

of evidence regarding D.S.’s prior allegations of sexual misconduct against a foster

brother. At the hearing, D.S. testified that when she was in a foster home at age four or

five, one of her foster brothers sexually abused her, including putting his penis in her

vagina. She said that the activity was not consensual, and that she honestly disclosed the

abuse to a CCDCFS social worker. The trial court then denied Jeffries’s request to allow

defense counsel to ask questions of D.S. regarding these prior allegations of sexual abuse

by the foster brother, concluding that cross-examination on this issue was precluded by

Ohio’s rape shield statute. In his first assignment of error, Jeffries contends that the trial

court erred in denying his request because it violated his Sixth Amendment right to

confront the witnesses against him.

       {¶16} R.C. 2907.02(D), Ohio’s rape shield statute, states, in relevant part, that:

       Evidence of specific instances of the victim’s sexual activity, opinion
       evidence of the victim’s sexual activity, and reputation evidence of the
       victim’s sexual activity shall not be admitted under this section unless it
       involves evidence of the origin of semen, pregnancy, or disease, or the
       victim’s past sexual activity with the offender, and only to the extent that
       the court finds that the evidence is material to a fact at issue in the case and
       that its inflammatory or prejudicial nature does not outweigh its probative
       value.

       {¶17} Jeffries cites to State v. Stoffer, 7th Dist. Columbia No. 09-CO-1,

2011-Ohio-5133, in which the Seventh District found that the rape shield statute address
only prior consensual sexual activity of the victim and not prior sexual abuse suffered by

the victim. Id. at ¶ 98. Thus, in Stoffer, although it ultimately found the error to be

harmless, the Seventh District held that the trial court erred in applying the rape shield

statute to preclude the defendant from introducing evidence that the victim had previously

been sexually abused by someone other than the defendant. In State v. Sledge, 6th Dist.

Lucas No. L-15-1109, 2016-Ohio-4904, the Sixth District, citing Stoffer, found that

where alleged prior sexual abuse of the victim does not result from “volitional sexual acts

* * * it may not fall within the general prohibition mandated by R.C. 2907.02(D).” Id. at

¶ 19. In reliance on Stoffer and Sledge, Jeffries asserts that the rape shield statute did not

preclude his cross-examination of D.S. regarding her prior allegations of sexual abuse

against a foster brother. We disagree because the Ohio Supreme Court has made it clear

that both prior nonconsensual and consensual sexual activity of the victim are protected

by the rape shield statute.

       {¶18} In Boggs, supra, the Ohio Supreme Court considered whether the rape shield

statute prohibits a defendant from cross-examining an alleged rape victim about prior

false rape allegations. The court held that before cross-examination of a rape victim

regarding prior false rape accusations may proceed, “the trial judge shall hold an in

camera hearing to ascertain whether such testimony involves sexual activity and thus is

inadmissible under R.C. 2907.02(D), or is totally unfounded and admissible for

impeachment of the victim.” Boggs, 63 Ohio St. at 424, 588 N.E.2d 318.
       {¶19} The Supreme Court also held that the burden is on the defendant to

demonstrate that the accusations were false. The court stated:

       the initial inquiry must be whether the accusations were actually made by
       the prosecutrix. Moreover, the trial court must also be satisfied that the
       prior allegations of sexual misconduct were actually false or fabricated.
       That is, the trial court must ascertain whether any sexual activity took place,
       i.e., an actual rape or consensual sex. If it is established that either type of
       activity took place, the rape shield statute prohibits any further inquiry into
       this area. Only if it is determined that the prior accusations were false
       because no sexual activity took place would the rape shield law not bar
       further cross-examination.

(Emphasis added.) Id. at 423. In short, if any type of sexual activity occurred and the

allegation was not false, the victim is protected by the rape shield statute, and the

defendant may not question the victim about the prior sexual activity.

       {¶20} Here, the trial court conducted an in camera hearing at which it learned that

the incident involving D.S.’s foster brother had occurred one or two years before she

moved in with H.G. and Jeffries. D.S. never wavered from her claims that the incident

occurred, and that she honestly reported it to CCDCFS. After hearing from D.C., the

trial court decided that the incident was protected by the rape shield statute because it

involved sexual activity, and there was no evidence whatsoever that the allegation was

false. On this record and in light of Boggs, we find no abuse of discretion in the trial

court’s ruling. The first assignment of error is therefore overruled.

B.     Other Acts Evidence

       {¶21} In his second assignment of error, Jeffries contends that the trial court erred

by admitting evidence of his prior bad acts; specifically, in allowing D.S. to testify about
prior instances of sexual abuse against her other than the two incidents for which he was

indicted.   Jeffries contends this evidence was “classic bad-man evidence” that was

unrelated to the two incidents for which he was indicted and allowed the jury to convict

him on the charged offenses merely because it assumed that he acted in conformity with

his bad character.

       {¶22} Defense counsel did not object to the admission of this evidence at trial and

therefore has waived all but plain error on appeal. State v. Jones, 91 Ohio St.3d 335,

343, 744 N.E.2d 1163 (2001); State v. Tibbs, 8th Dist. Cuyahoga No. 89723,

2008-Ohio-1258, ¶ 9. Plain error exists where, but for the error, the outcome of the trial

clearly would have been different. Tibbs at id. Appellate courts find plain error only in

exceptional cases where it is necessary to prevent a manifest miscarriage of justice. Id.

       {¶23} “Evidence that an accused committed a crime other than the one for which

he is on trial is not admissible when its sole purpose it to show the accused’s propensity

or inclination to commit crime, or that he acted in conformity with bad character.” State

v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15. However,

there are exceptions that allow other acts of wrongdoing to be admitted.

       {¶24} First, R.C. 2945.59 provides that:

       [i]n any criminal case in which the defendant’s motive or intent, the absence
       of mistake or accident on his part, or the defendant’s scheme, plan, or
       system in doing an act is material, any acts of the defendant which tend to
       show his motive or intent, the absence of mistake or accident on his part, or
       the defendant’s scheme, plan, or system in doing the act in question may be
       proved, whether they are contemporaneous with or prior or subsequent
       thereto, notwithstanding that such proof may show or tend to show the
       commission of another crime by the defendant.
       {¶25} Also, Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts

is permitted to show proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or the absence of mistake or accident.

       {¶26} In deciding whether to admit other acts evidence, trial courts should conduct

a three-step analysis:

       The first step is to consider whether the other acts evidence is relevant to
       making any fact that is of consequence to the determination of the action
       more or less probable than it would be without the evidence. Evid.R. 401.
       The next step is to consider whether evidence of the other crimes, wrongs,
       or acts is presented to prove the character of the accused in order to show
       activity in conformity therewith or whether the other acts evidence is
       presented for a legitimate purpose, such as those stated in Evid.R. 404(B).
       The third step is to consider whether the probative value of the other acts
       evidence is substantially outweighed by the danger of unfair prejudice. See
       Evid.R. 403.

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278 at ¶ 20.

       {¶27} Applying this test to the challenged testimony, we find no abuse of

discretion by the trial court in admitting the evidence. First, the other acts evidence was

relevant because it tended to show Jeffries’s plan for grooming D.S. for sexual activity.

“‘Shaping and grooming describes the process of cultivating trust with a victim and

gradually introducing sexual behaviors until reaching the point of intercourse.’” Id. at ¶

21, quoting United States v. Johnson, 132 F.3d 1279, 1280, fn. 2 (9th Cir.1997). D.S.’s

testimony established that the grooming started at six years of age when Jeffries held her

and touched her buttocks; progressed through the years to Jeffries having her take her
clothes off and sit naked on his lap; escalated to Jeffries touching her breasts and vagina;

and finally, culminated in incidents when Jeffries would insert his penis in D.S.’s vagina.

       {¶28} Next, the testimony was elicited for a legitimate purpose under Evid.R.

404(B), which provides that other acts evidence may be admitted to show motive, intent,

plan, scheme and absence of mistake. D.S.’s testimony was relevant to Jeffries’s plan

and scheme to groom her over the years from touching to sexual intercourse.

       {¶29} And the probative value of the evidence was not outweighed by the danger

of unfair prejudice. Rather than inflaming the jury and appealing only to its emotions

(the general test for unfairly prejudicial evidence), the evidence of Jeffries’s grooming of

D.S. provided a basis for the jury to recognize his ongoing scheme for sexual activity with

D.S. And although the trial court did not give a limiting instruction regarding the other

acts evidence, D.S. was subject to cross-examination, and defense counsel challenged her

credibility and testimony regarding Jeffries’s sexual motives and actions. Likewise,

Jeffries testified in his own defense that D.S. was lying. The jury was free to judge the

credibility of the witnesses.

       {¶30} Finally, Jeffries did not request that the trial court give a limiting instruction

regarding the other acts evidence. His failure to do so waives all but plain error. State

v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 136. Where the

defense fails to request a limiting instruction on other acts evidence, the trial court’s

failure to give such an instruction is not plain error where nothing suggests the jury used

other acts evidence to convict the defendant because he was a bad person. Id. Jeffries
points to nothing that suggests the jury did so. Accordingly, we find no plain error in the

trial court’s failure to give a limiting instruction and in admitting the other acts evidence.

       {¶31} The second assignment of error is therefore overruled.

C.     Jury Instruction — Kidnapping

       {¶32} Under R.C. 2905.01(C)(3)(a), if the victim of a kidnapping was under 13

years of age and the offender is also convicted of a sexual motivation specification, as

Jeffries was, kidnapping is a felony of the first degree, and the offender shall be

sentenced to an indefinite term of 15 years to life in prison. If, however, the victim was

released in a safe place unharmed, the offender shall be sentenced to an indefinite term of

10 years to life in prison.

       {¶33} In his third assignment of error, Jeffries contends that he was deprived of his

Sixth Amendment right to trial by jury because the trial court did not instruct the jury with

respect to Count 2 that it should make a determination as to whether D.S. was released in

a safe place unharmed. He argues that the “released in a safe place unharmed” provision

of R.C. 2905.01(C)(3)(a) is a factual sentencing determination that the finder of fact is

required to make because it controls which of the two sentencing terms the trial court is

required to impose. He asserts that the trial court therefore erred in not instructing the

jury to make this determination. Jeffries did not request such a jury instruction, however,

and has waived all but plain error, which we do not find.

       {¶34} This court considered and rejected a similar argument in State v. Bolton, 8th

Dist. Cuyahoga No. 96385, 2012-Ohio-169. In Bolton, the defendant argued that he was
denied due process because the trial court did not instruct the jury to determine whether

the victim was released in a safe place unharmed, a factor that would have reduced the

kidnapping offense in that case from a felony of the first degree to a second-degree

felony.    We found that the “released in a safe place unharmed” provision of R.C.

2905.01(C) is not an element of the offense of kidnapping; instead the defendant “must

plead and prove that assertion as an affirmative defense.” State v. McKnight, 107 Ohio

St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 233. See also State v. Singleton, 8th Dist.

Cuyahoga No. 103478, 2016-Ohio-4696, ¶ 35.

       {¶35} We also found that “‘the court has no duty to give jury instructions that are

neither supported by the facts nor that assist the jury.’” Bolton at ¶ 56, quoting State v.

Ogletree, 8th Dist. Cuyahoga No. 79882, 2002-Ohio-4070, ¶ 14. Because the appellant

had failed to provide any evidence that the victim was released unharmed, we held that

the trial court did not err by not giving a jury instruction on the “released in a safe place

unharmed” issue. Bolton at id.

       {¶36} In this case, as in Bolton, Jeffries never argued that D.S. was released

unharmed nor did he provide any evidence that she was released unharmed. Instead,

ample evidence provided by the state demonstrated that D.S. was indeed harmed — she

was raped by Jeffries before she was released.             Further, she was referred for

psychological counseling after the abuse was discovered.2 As this court stated in Bolton,



       2
        For purposes of R.C. 2905.01, “harm” includes both physical and
psychological harm. State v. Mohamed, Slip Opinion No. 2017-Ohio-7468, ¶ 14.
“‘it is difficult indeed to imagine that one may engage in sexual activity with another

against their will and still argue that such a person is left ‘unharmed.’” Id., quoting State

v. Arias, 9th Dist. Lorain No. 04CA008428, 2004-Ohio-4443, ¶ 38. Because there was

no evidence that D.S. was released unharmed, the trial court did not err in not instructing

the jury on this issue.   The third assignment of error is overruled.

D.     Ineffective Assistance of Counsel

       {¶37} Jeffries next argues that his counsel was ineffective for not (1) objecting to

the admission of other acts evidence; (2) objecting to the lack of a “released in a safe

place unharmed” jury instruction; and (3) filing an affidavit of indigency and asking the

court to waive the imposition of court costs at sentencing.

       {¶38} To establish ineffective assistance of counsel, a defendant must demonstrate

that counsel’s performance fell below an objective standard of reasonable representation

and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668,

80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). Prejudice is established when the defendant

demonstrates “a reasonable probability that but for counsel’s unprofessional errors, the

result of the proceeding would have been different.           A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland at 694.

       {¶39} Having found no error in the admission of other acts evidence, we find no

ineffective assistance in counsel’s failure to object to this evidence. Likewise, having

found no error in the trial court’s failure to give a “released in a safe place unharmed”
jury instruction regarding kidnapping, we find no ineffective assistance in counsel’s

failure to object to the lack of such an instruction.

       {¶40} With respect to counsel’s failure to move the court to waive court costs, we

note that R.C. 2947.23(A)(1) governs the imposition of court costs and provides that “[i]n

all criminal cases * * * the judge * * * shall include in the sentence the costs of

prosecution * * * and render a judgment against the defendant for such costs.” The

statute does not prohibit a court from assessing costs against an indigent defendant; rather

“it requires a court to assess costs against all convicted defendants.” State v. White, 103

Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8; State v. Brown, 8th Dist.

Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 12. Thus, a sentencing court must include the

costs of prosecution in the sentence and render a judgment for costs against the defendant

even if the defendant is indigent. White at id.

       {¶41} In its discretion, however, a trial court may waive court costs upon a

defendant’s motion if the defendant is indigent. R.C. 2949.092; State v. Walker, 8th

Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. To demonstrate prejudice regarding

counsel’s failure to move for the waiver of court costs to satisfy his ineffective assistance

of counsel claim, Jeffries must show that a reasonable probability exists that the trial

court would have waived payment of the costs if such motion had been filed. State v.

Graves, 8th Dist. Cuyahoga No. 103984, 2016-Ohio-7303, ¶ 13, citing State v.

Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762, ¶ 78; State v. Bonton, 8th

Dist. Cuyahoga No. 102918, 2016-Ohio-700, ¶ 20.
       {¶42} In State v. Gibson, 8th Dist. Cuyahoga No. 104368, 2017-Ohio-102, this

court held that a prior finding by a trial court that a defendant was indigent demonstrated

a reasonable probability that the trial court would have waived costs had counsel made a

timely motion. Id. at ¶ 16. The court found that under such circumstances, counsel’s

failure to move for waiver of costs was deficient and prejudiced the defendant. This

court applied Gibson recently in State v. Springer, 8th Dist. Cuyahoga No. 104649,

2017-Ohio-8861.

       {¶43} In this case, as in Gibson and Springer, the trial court found Jeffries to be

indigent and appointed counsel for him. Under such circumstances, counsel’s failure to

move for a waiver of costs was deficient and prejudiced Jeffries. Accordingly, we vacate

the costs and remand for a hearing regarding the imposition of costs.            The fourth

assignment of error is sustained in part.

E.     Insufficient Evidence and Manifest Weight of the Evidence

       {¶44} In his fifth assignment of error, Jeffries contends there was insufficient

evidence to support his convictions for rape and kidnapping. In his sixth assignment of

error, he asserts that his convictions are against the manifest weight of the evidence.

       {¶45} 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. The 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. Thompkins, 78

Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶46} A manifest weight challenge, on the other hand, questions whether the state

met its burden of persuasion.          State v. Hill, 8th Dist. Cuyahoga No. 98366,

2013-Ohio-578, ¶ 32. To determine whether a conviction is against the manifest weight

of the evidence, the reviewing court must look at the entire record, weigh the evidence

and all reasonable inferences, consider the credibility of the witnesses, and determine

whether in resolving the 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. Thompkins at 388.

       {¶47} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding the credibility of witnesses and

the weight given to the evidence are primarily matters for the trier of fact to decide.

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). 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.” State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.                  Thus, an

appellate court will overturn a conviction due to the manifest weight of the evidence only

in extraordinary circumstances where the evidence presented at trial weighs heavily

against the conviction. Thompkins at 388.
       {¶48} Although the concepts of the sufficiency of the evidence and weight of the

evidence are different, a determination that a conviction is supported by the manifest

weight of the evidence will also be dispositive of the issue of sufficiency. State v.

Buford, 8th Dist. Cuyahoga Nos. 97218 and 97529, 2012-Ohio-1948, ¶ 20.

       {¶49} Jeffries first challenges his conviction on Count 2, kidnapping in violation

of R.C. 2905.01(A)(4), which provides that “no person, by force, threat, or deception, or

in the case of a victim under the age of thirteen, by any means, shall * * * restrain the

liberty of the other person * * * to engage in sexual activity * * * with the victim against

the victim’s will.”

       {¶50} Jeffries contends that his kidnapping conviction was against the manifest

weight of the evidence and not supported by sufficient evidence because there was no

evidence that D.S. was required to submit by physical force or the threat of physical force,

that she ever rejected his advances or told him to stop, or that she was unable to get away.

 Thus, he asserts there was no evidence that she was restrained of her liberty.

       {¶51} But D.S. testified that Jeffries laid on top of her when he raped her on her

twelfth birthday. She testified further that she did not feel like she could leave or get

away from Jeffries during this incident.       This testimony is more than sufficient to

demonstrate that Jeffries physically restrained D.S.’s liberty while he raped her.

       {¶52} In any event, R.C. 2905.01(A)(4) does not require that the state demonstrate

that the defendant used physical force to restrain the liberty of a child under the age of 13.
 Rather, the statute provides that the state need only show that the child’s liberty was

restrained “by any means.”

       {¶53} The Ohio Supreme Court has recognized that “[t]he youth and vulnerability

of children, coupled with the power inherent in a parent’s position of authority, creates a

unique situation of dominance and control in which explicit threats and displays of force

are not necessary to effect the abuser’s purpose.” State v. Eskridge, 38 Ohio St.3d 56,

59, 526 N.E.2d 304 (1988). Likewise, this court has specifically held in relation to

kidnapping that “‘a child’s liberty may be restrained through the inherent

social/psychological pressures that accompany’” an adult-child familial relationship.

State v. Zimmer, 8th Dist. Cuyahoga No. 104946, 2017-Ohio-4440, ¶ 15, quoting State v.

Weems, 8th Dist. Cuyahoga No. 102954, 2016-Ohio-701, ¶ 25. See also State v. Diaz,

2016-Ohio-5523, 69 N.E.3d 1182 (8th Dist.).

       {¶54} Even assuming for argument’s sake that Jeffries did not physically threaten

D.S. with respect to the rape on her twelfth birthday, she testified that she was fearful she

would be sent back to foster care if she refused Jeffries’s advances. This testimony,

coupled with D.S.’s age, her testimony that she considered Jeffries to be her father and

called him “Dad,” and Jeffries’s acknowledgment that he considered D.S. to be his child

and that he helped care for and discipline her, proved that Jeffries restrained D.S.’s liberty

by psychological pressure inherent in his position as D.S.’s “father.” Accordingly, his

conviction for kidnapping is supported by sufficient evidence and not against the manifest

weight of the evidence.
       {¶55} Jeffries also contends that his conviction on Count 3, rape in violation of

R.C. 2907.02(A)(2), was not supported by sufficient evidence and is against the manifest

weight of the evidence. Under R.C. 2907.02(A)(2), “[n]o person shall engage in sexual

conduct with another when the offender purposely compels the other person to submit by

force or threat of force.” For the same reasons argued with respect to his kidnapping

conviction, Jeffries contends that there was no evidence that he compelled D.S. to submit

by force or threat of force with respect to the rape.

       {¶56} We disagree. The evidence demonstrated that D.S. awoke to find Jeffries

on top of her, and that he then pulled her pajama pants and underwear off and inserted his

penis in her vagina. D.S. testified that during this incident, she did not feel like she could

leave and had no choice but to stay. We find this evidence sufficient to establish that

Jeffries used physical force to rape D.S. And as discussed above, Jeffries’s position as a

father-figure to D.S. restrained her liberty through the psychological pressure he exerted

as her “Dad.” And despite Jeffries’s argument otherwise, there is no requirement that to

find the element of force, a rape victim must tell her rapist that she does not want the rape

to happen.

       {¶57} The jury did not lose its way in convicting Jeffries of kidnapping and rape,

nor is this the exceptional case where the evidence weighs heavily against the

convictions. The fifth and sixth assignments of error are overruled.

F.     Testimony of a Witness Stricken
       {¶58} During trial, D.S. testified that once when she was sitting on Jeffries’s lap

while naked, C.J., one of Jeffries’s sons, walked into the living room and saw her and

Jeffries. Before trial, C.J. told a social worker that he had seen Jeffries and D.S. in the

living room engaged in sexual activity. However, when the state called C.J. to the stand,

he gave nonresponsive testimony as to whether he had ever seen Jeffries and D.S.

together. He also testified that he did not remember telling a social worker about an

occasion when he came downstairs, even though Jeffries had told him not to, and saw

Jeffries and D.S. engaged in sexual activity.

       {¶59} The trial court struck C.J.’s testimony, finding that his testimony provided

no relevant information. The trial court also found that although the state was surprised

by C.J.’s testimony, it did not amount to affirmative damage to the state’s case because

the incident allegedly observed by C.J. did not occur on either December 23, 2011 or in

March 2016, the dates charged in the indictment. Accordingly, the trial court held that

under Evid.R. 607, the state was precluded from bringing out any prior inconsistent

statements by C.J. Defense counsel did not object to the trial court’s ruling, telling the

court that she was not going to ask any questions of C.J. anyway.

       {¶60} Evid.R. 607(A) prevents a party from impeaching its own witness unless the

party is surprised by the testimony and the testimony is damaging. Jeffries agrees with

the trial court’s analysis that C.J.’s testimony, although a surprise to the state, was not

damaging to the state’s case because it was not connected to the two incidents charged in
the indictment. Thus, he asserts that the trial court properly ruled that the state could not

question C.J. regarding his prior inconsistent statements.

       {¶61} Nevertheless, in his seventh assignment of error, Jeffries argues that the trial

court erred in striking C.J.’s testimony because it directly refuted D.S.’s testimony that

C.J. had seen her and Jeffries together and, thus, was relevant to D.S.’s credibility.

Because Jeffries did not object to the trial court’s ruling striking C.J.’s testimony, he has

waived all but plain error, which again we do not find.

       {¶62} Our review of the record demonstrates that C.J.’s testimony did not refute

D.S.’s testimony that C.J. had once seen her and Jeffries engaging in sexual activity. The

record reflects that when he was asked if he remembered ever seeing his father and D.S.

together, C.J. first replied, “no, not really,” and then when asked what he meant by “not

really,” said, “no, I mean, I mean, all — used to, I mean —,” and then “I mean, all of us.”

 When asked if he remembered a time when he wanted to go downstairs but Jeffries told

him he could not, C.J. replied “no.” Finally, when he was asked if he remembered telling

a social worker about that incident, C.J. said he could not remember.

       {¶63} We find no plain error in the trial court’s judgment to exclude this

testimony. Because C.J.’s testimony was nonresponsive, it did not refute D.S.’s testimony

that C.J. had once seen her and Jeffries together and thus was not relevant to her

credibility.

       {¶64} Jeffries also contends that his counsel was ineffective for not objecting to

the trial court’s ruling excluding C.J.’s testimony. We disagree. In evaluating a claim
of ineffective assistance of counsel, a court must give great deference to counsel’s

performance.     Strickland, 466 U.S. at 689, 104 S.Ct. 2052,                 80 L.Ed.2d 674.

Furthermore, trial tactics and strategies do not constitute a denial of effective assistance

of counsel. State v. Gooden, 8th Dist. Cuyahoga No. 88174, 2007-Ohio-2371, ¶ 38,

citing State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).

       {¶65} Here, counsel’s failure to object to the trial court’s ruling was clearly a

strategic decision. Had the trial court allowed C.J.’s testimony, the state would have

used his prior statements to the social worker to impeach him, testimony that clearly

would have been detrimental to Jeffries’s defense that he never sexually abused D.S. In

fact, counsel told the court she had not planned to ask C.J. any questions, presumably to

avoid opening the door to any damaging testimony. It is apparent that counsel’s decision

not to object to the court’s ruling was a matter of trial strategy to which we must afford

great deference. Accordingly, we find no ineffective assistance of counsel, and the

seventh assignment of error is overruled.

       {¶66} Judgment affirmed in part; reversed in part; and remanded for a hearing

regarding the imposition of court costs.

       It is ordered that the parties share equally the 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 convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for a hearing on costs and execution of sentence.

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

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR
