[Cite as State v. Maultsby, 2014-Ohio-5479.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       14CA010526

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
TERENCE D. MAULTSBY                                   COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   13CR086806

                                 DECISION AND JOURNAL ENTRY

Dated: December 15, 2014



        BELFANCE, Presiding Judge.

        {¶1}     Terence Maultsby appeals from his convictions in the Lorain County Court of

Common Pleas. For the reasons set forth below, we affirm.

                                                 I.

        {¶2}     A grand jury indicted Mr. Maultsby on two counts of kidnapping with attendant

sexual motivation and sexually violent predator specifications and one count of rape. Prior to

trial, the sexually violent predator specifications were dismissed. Following his trial, the jury

found Mr. Maultsby guilty on all counts and remaining specifications. The trial court merged the

kidnapping counts for purposes of sentencing and sentenced Mr. Maultsby to an aggregate term

of eight years in prison.

        {¶3}     Mr. Maultsby has appealed, raising a single assignment of error for our review.
                                                 2


                                  ASSIGNMENT OF ERROR

       THE GUILTY VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE IN VIOLATION OF MR. MAULTSBY’S RIGHTS UNDER
       THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO
       STATE CONSTITUTION.

       {¶4}    Mr. Maultsby argues that his convictions are against the manifest weight of the

evidence. In reviewing a challenge to the weight of the evidence, the appellate court

       [m]ust 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.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶5}    The jury found Mr. Maultsby guilty of violating R.C. 2905.01(A)(2) and

2905.01(A)(4), which provide that

       [n]o 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:

       ***

       (2) To facilitate the commission of any felony or flight thereafter;

       ***

       (4) To engage in sexual activity, as defined in section 2907.01 of the Revised
       Code, with the victim against the victim’s will[.]

“‘Sexual activity’ means sexual conduct or sexual contact, or both.” R.C. 2907.01(C).

       “Sexual conduct” means vaginal intercourse between a male and female; anal
       intercourse, fellatio, and cunnilingus between persons regardless of sex; and,
       without privilege to do so, the insertion, however slight, of any part of the body or
       any instrument, apparatus, or other object into the vaginal or anal opening of
       another. Penetration, however slight, is sufficient to complete vaginal or anal
       intercourse.
                                                3


R.C. 2907.01(A). “‘Sexual contact’ means any touching of an erogenous zone of another,

including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a

female, a breast, for the purpose of sexually arousing or gratifying either person.”         R.C.

2907.01(B). The jury also found Mr. Maultsby guilty of rape pursuant to R.C. 2907.02(A)(2),

which provides that “[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.”

       {¶6}    S.P. testified that, on February 18, 2013, she went to her friend’s home in the

morning for coffee and spent the entire day at her house, leaving only to go to the store to buy

beer and cigarettes. The women went to the store a second time in the afternoon to get more

beer. While they were walking to the store, the women encountered Mr. Maultsby in his front

yard. According to S.P., although she had seen Mr. Maultsby before because he performed

maintenance work for her landlord, she did not know his name or that he lived just down the

street from her. S.P.’s friend stopped to talk to Mr. Maultsby, and S.P. continued walking to the

store. S.P.’s friend caught up with S.P. and asked it if would be permissible for Mr. Maultsby

come to join them at S.P.’s house. S.P. told her friend that Mr. Maultsby could come to her

house, and Mr. Maultsby arrived at her house a short time after the women did.

       {¶7}    According to S.P., the three of them sat at her dining room table and drank. S.P.’s

friend and Mr. Maultsby also smoked marijuana, which Mr. Maultsby had brought. Because S.P.

did not know Mr. Maultsby, she had to repeatedly ask him what his name was. Mr. Maultsby

stayed at S.P.’s house for about an hour. During that time, Mr. Maultsby tried to kiss S.P. while

they were sitting at the table. Later, when S.P. went to check if someone was at the front door,

Mr. Maultsby tried to dance with her and tried to kiss her again. Both times, S.P. told him no
                                               4


and pushed him away. Eventually, Mr. Maultsby left but not before he had programmed his

number into S.P.’s phone.

       {¶8}   After Mr. Maultsby left, S.P.’s friend discovered that she could not locate her

phone or her wallet. S.P. and her friend searched the house but could not find the items. S.P.’s

friend called Mr. Maultsby on S.P.’s phone, and he returned to help them look. Mr. Maultsby

returned to the house and found the phone and the wallet under a chair. However, S.P. testified

that she and her friend had previously searched that location and the wallet and phone had not

been there.

       {¶9}   S.P. testified further that everyone left her house around 8:30, including Mr.

Maultsby. S.P. shut her front door but did not lock it because her daughter who lived with her

did not have a key. She went upstairs to take a shower before going out to meet a friend. S.P.

removed her pants in the bedroom before using the restroom. While she was seated on the toilet,

she heard her bird making noise downstairs and saw Mr. Maultsby climbing the stairs. When

Mr. Maultsby looked at her through the open bathroom door, S.P. asked him what he was doing,

and Mr. Maultsby responded that he was there to spend time with her.

       {¶10} S.P. told Mr. Maultsby to leave, but Mr. Maultsby entered the bathroom and

grabbed S.P. just beneath her chin. S.P. stood up and Mr. Maultsby grabbed her by her t-shirt

and took her to the bedroom. He forced S.P. to lie on the bed and pinned her by lying on top of

her. Then Mr. Maultsby engaged in sexual intercourse with S.P., eventually ejaculating onto her

stomach and sheets.

       {¶11} According to S.P., she told Mr. Maultsby that she needed to have a cigarette, and

he let her leave the bedroom. S.P. took her jeans from the bedroom and put them on when she

went downstairs. Mr. Maultsby called down to her, asking why she was taking so long, and S.P.
                                                 5


replied that she was calling the police. S.P. testified that she ran to the abandoned house next

door and stood in the pouring rain waiting for the police to come. Mr. Maultsby ran back to his

house.

         {¶12} Officer Wesley Fordyce testified that he arrived at S.P.’s house and found her

sitting inside near the front door. According to Officer Fordyce, S.P. “was very upset. She was

crying, shaking, almost hysterical.” S.P. did not have any shoes on, and her socks were wet and

muddy. Officer Fordyce had S.P. sit in his cruiser while he interviewed her. He testified that,

when he was escorting S.P. to his cruiser, she refused to let him touch or assist her.

         {¶13} According to Officer Fordyce, S.P. told him about what had happened, identified

Mr. Maultsby by name, and pointed out Mr. Maultsby’s house. Officer Fordyce went to Mr.

Maultsby’s house, and Mr. Maultsby answered the door. Mr. Maultsby was sweating profusely

but claimed to have been sleeping. S.P. subsequently identified Mr. Maultsby as the man who

had raped her, and Officer Fordyce placed him under arrest.

         {¶14} After S.P. was transported to have a rape kit performed, Officer Fordyce entered

her house and, with the assistance of other officers, took pictures of her bed sheets and collected

them for evidence. Officer Fordyce testified that the bed sheets had a wet stain on them. Officer

Fordyce also took pictures of the sidewalk in front of S.P.’s house because there were “footprints

leading from * * * the front of her house and down the sidewalk around the corner right up to his

steps and into [Mr. Maultsby’s] house.”

         {¶15} Officer Fordyce testified that he spoke with Mr. Maultsby at the police station

later that evening. During that interview, Mr. Maultsby initially denied ever being at S.P.’s

house that evening but eventually told Officer Fordyce that he had brought marijuana to S.P.’s

house and that he had been “partying, drinking and smoking.” Mr. Maultsby also told Officer
                                                  6


Fordyce that he had left but came back when S.P.’s friend had called him saying she had lost her

wallet. However, Mr. Maultsby was adamant that “he hadn’t had sex of any kind with anyone,

and he specified that he hadn’t had sex with [S.P.’s friend], he hadn’t had sex with [S.P.], and he

hadn’t had sex with * * * his wife and clarified it was his girlfriend.”

       {¶16} Sergeant Dennis Camarillo testified that he interviewed Mr. Maultsby the

morning of February 19, 2013, and a video recording of the interview was played for the jury. In

the video, Mr. Maultsby denied that any sexual activity occurred the prior evening, claiming that

he had only danced with the women and kissed them on their cheek or forehead. At the end of

the interview, Sergeant Camarillo asked Mr. Maultsby again if any sexual activity had taken

place, and Mr. Maultsby again denied that it had.

       {¶17} Sarah Griffith testified that she was a Sexual Assault Nurse Examiner and had

examined S.P. the night of the incident. Ms. Griffith did not observe any physical injuries on

S.P. but testified that injuries are not always noticeable until a number of hours after an incident.

Ms. Griffith discovered traces of semen below S.P.’s navel and collected samples. She also took

samples from S.P.’s vaginal and anal areas.

       {¶18} Mr. Maultsby stipulated to the admission of reports from the Bureau of Criminal

Investigation, which indicated that DNA testing had been performed on the vaginal and anal

samples collected by Ms. Griffith. According to the reports, it was a near certainty that Mr.

Maultsby was the source of the semen found on those samples.

       {¶19} Mr. Maultsby’s appellate argument appears to be that his convictions for

kidnapping and rape are against the manifest weight of the evidence because S.P.’s testimony

lacked credibility. Notably, Mr. Maultsby does not address any of S.P.’s testimony about the

alleged offenses. Instead, he points to potential contradictions in her testimony about issues
                                                 7


tangential to the offense, essentially arguing that these inconsistencies call her entire testimony

into doubt.

       {¶20} Specifically, Mr. Maultsby points to differences between S.P.’s testimony that she

stood in the rain waiting for the police and Officer Fordyce’s testimony that he found S.P. inside

her house when he arrived and that it had not been raining. Mr. Maultsby also points to S.P.’s

testimony that she knew him only in passing despite living nearby and knowing his full name.

Finally, he argues that her testimony is not credible because, if she was standing at the front door

or at the house next door, she would have seen him leave “[b]ut[ S.P.] did not testify that she saw

Mr. Maultsby leave[] or where he went.”

       {¶21} We initially note that S.P. did testify that Mr. Maultsby ran back to his house

without his shirt on. Thus, while S.P. may not have directly testified that she saw Mr. Maultsby

leave her house, that fact was implicit in her testimony, making Mr. Maultsby’s argument to the

contrary tenuous at best. Similarly, although Officer Fordyce’s testimony contradicted S.P.

regarding whether it was raining on the night in question, Officer Fordyce also testified that

S.P.’s socks were wet and muddy, from which a reasonable juror could conclude that S.P. had

run outside only in her socks. Furthermore, given the testimony of Officer Fordyce that S.P. was

“almost hysterical[,]” the jury could have reasonably believed that S.P.’s memory of the events

immediately following the assault could have been affected by her emotional state. See State v.

Williams, 9th Dist. Lorain No. 12CA010298, 2014-Ohio-971, ¶ 17 (The trier of fact is “entitled

to believe all, part, or none of the testimony of each witness.”) (Internal quotations and citations

omitted.).

       {¶22} In any case, the jury was aware of these potential issues with S.P.’s testimony and

could weigh them in assessing her credibility. See id. (“This Court has recognized that the trier
                                                8


of fact is best able to view witnesses and observe their demeanor, gestures and voice inflections,

and use these observations in weighing the credibility of the proffered testimony.”) (Internal

quotations and citations omitted.). Furthermore, none of the evidence at trial contradicted S.P.’s

account of the attack, specifically, that Mr. Maultsby grabbed her while she was in her bathroom

and dragged her to her bedroom to have sexual intercourse with her. Semen found on vaginal

and anal swabs taken from S.P. almost certainly came from Mr. Maultsby, and Nurse Griffith’s

examination of S.P. revealed semen on her navel, which was consistent with S.P.’s testimony.

Additionally, Officer Fordyce testified that Mr. Maultsby initially denied having been at S.P.’s

house before admitting that he had been there; in other words, Officer Fordyce testified that Mr.

Maultsby had lied to him. Similarly, the DNA evidence in this case suggests that Mr. Maultsby

almost certainly engaged in sexual intercourse with S.P. notwithstanding his repeated denials.

Given the physical evidence undermining Mr. Maultsby’s statements, the jury could well have

concluded that portions of the statements Mr. Maultsby gave to the police corroborated S.P.’s

testimony and that Mr. Maultsby’s absolute denial that any sexual activity took place with S.P.

was not credible.

       {¶23} Accordingly, after a thorough review of the record and in light of Mr. Maultsby’s

appellate arguments, we cannot conclude that the jury lost its way and created a manifest

miscarriage of justice when it found Mr. Maultsby guilty of kidnapping and rape.              His

assignment of error is overruled.

                                             III.

       {¶24} In light of the foregoing, the judgment of the Lorain County Court of Common

Pleas is affirmed.

                                                                              Judgment affirmed.
                                                 9




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



MOORE, J.
CARR, J.
CONCUR


APPEARANCES:

NICHOLAS HANEK, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
