[Cite as State v. Wellman , 2020-Ohio-2876.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO Appellee

v. JOSEPH J. WELLMAN Appellant C.A. No. 19CA011527

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 18CR099547
DECISION AND JOURNAL ENTRY Dated: May 11, 2020

HENSAL, Judge. {¶1} Joseph Wellman appeals his convic tions in the Lorain County Cou rt of Common Pleas. For the following reas ons, this Court affirms.
I. {¶2} K.H. had been out jogging for several hours on the evening of A ugust 31, 2018, when she noticed a man on the opposite side of the street stand ing at a corner of the intersection she was approaching. Because it was close to midnight, she slo wed down to a walk and turned down the volume on her headphones to assess the situation. Acc ording to K.H., because it was a man she had seen before several times in the area and he did no t seem to notice her, she resumed her pace. As K.H. reached the intersection, however, the man b egan crossing the road toward her trying to get her attention. {¶3} According to K.H., she took out her headphones, but a different man suddenly grabbed her from behind, put her arms behind her back, and put what she believed was his pelvis2 against her. The man she had seen on the corner came up to the front of her and asked her if she wanted to party. K.H. thought it must be some sort of joke, bu t when she tried to pull away, the man behind her pushed into her h arder, making her bend slightly forward. The man in front of her asked her again to go party with them and told her that he woul d give her a blast, which she interpreted as something having to do with drugs. When K.H. de clined and asked to just go home, the man behind her laughed and th e man in front of her grabbed her vagina over her shorts. K.H. testified that she could tell th at he was trying to get his fin gers under her shorts, but they were too tight. The man in front of her got very close to her face and continued encouraging her to go have a good time with them. Thinking t hat the men intended to rape her, K.H. stomped on the foot of man holding her, which allowed her to free one of her arms. Sh e used that arm to elbow the man behind her in the groin, freeing her other arm. She then punch ed the man in front of her in the throat and began running back to her house. Because her family members were sleeping and she did not want the men to find out where she lived, K.H. did not contact the police until her family members convinced her to when s he returned home from work the n ext day. {¶4} Officer Brandon Szymanski testif ied that, after he spoke with K .H., he went to the apartment complex where she said that she had seen the man befo re. He intended to canvass the apartments, but then noticed a man, Mr. Wellman, who matched th e description that K.H. provided. The officer decided to confirm or eliminate Mr. Well man as a suspect before he continued his investigation, so h e prepared a photo array and h ad another officer who was unfamiliar with the situation administer it to K.H. K.H. ident ified Mr. Wellman as the man who was in front of her during the attack and rated her confidence in her identification as 100%. The Grand Jury subsequently indicted Mr. Wellman for two counts of kidnapping and one count of gross sexual imposition. A jury found him guilty of the offens es, and the trial court sentenced him3 to a total of six years imprisonment. Mr. Wellman has appealed his convictions, assigning two errors, which we have reordered.
II. ASSIGNMENT OF ERROR II
THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF KIDNAPPING IN VIOLATION OF R.C. 2905.01(B) AS THE ELEMENT OF CREATING A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM WAS NOT PROVEN BEYOND A REASONABLE DOUBT. {¶5} Mr. Wellman argues that his ki dnapping conviction under Revised Code Section 2905.01(B) is not supported by sufficient evidence because ther e was no evidence that the offense occurred “under circumstances tha t create a substantial risk of serious physical harm to the victim[.]” Whether a convicti on is supported by sufficient ev idence is a question of law, which we review de novo. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). In making this determination, we must view the evidence in the light most favo rable to the prosecution: An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitt ed at trial to determine whether such eviden ce, if believed, would convince th e average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the pro secution, any rational trier of fact could have found the essential elements of the cr ime proven beyond a reasonable doubt.
State v. Jenks , 61 Ohio St.3d 259 (1991), paragrap h two of the syllabus. {¶6} Section 2905.01(B) provides that “[n]o person, by force, threat , or deception * * * shall knowingly do any of the fo llowing, under circumstances th at create a substantial risk of serious physical harm to the victim * * * (2) [r]estrain anothe r of the person’s liberty.” Under Section 2901.01(A)(5), “[s]erious physical harm” to a person me ans “[a]ny mental illness or condition of such gravity as woul d normally require hospitaliza tion or prolonged psychiatric treatment[,]” “[a]ny physical ha rm that carries a substantial r isk of death[,]” “[a]ny physical harm4 that involves some permanent in capacity * * * or that involves some temporary, substantial incapacity[,]” “[a]ny physical harm that involves some permane nt disfigurement or that involves some temporary, serious disfigurement[,]” or “[a]ny physical ha rm that involves acute pain of such duration as to result in substan tial suffering or that involves any degree of prolonged or intractable pain.” “‘Substantial risk’ means a strong possibility, as cont rasted with a remote or significant possibility, that a certain result may occur or that certain ci rcumstances may exist.” R.C. 2901.01(A)(8). {¶7} According to Mr. Wellman, K.H. did not testify about any physic al harm that she suffered during the incident. He argues that the only indicati ons that K.H. experienced any mental harm was her testimony that she had stopped jogging because she is afraid to go out by herself and that she and her family had decided to move to a new home. Mr. Wellman notes that there was no evidence that K.H. sought any medical or psychiatric treatment for what occurred. Under Section 2905.01(B)(2), however, the State does not have to establish th at a victim suffered serious physical harm, it only has to show that the restraint of the victim’s li berty occurred under circumstances that created a substantial risk of serious physical harm to the victim. See State v. Oldaker , 4th Dist. Meigs No. 16CA3, 2017-Ohio-1201, ¶ 46 (concluding evidenc e was sufficient because even though defendant did not cause v ictim’s injuries, he threatened victim with a gun and prevented him from seeking medical treatment for his injuries); State v. Garner , 9th Dist. Summit No. 25771, 2012-Ohio-1439, ¶ 13 (explaining that the analysis focuses on t he circumstances of the restraint instead of defenda nt’s conduct). {¶8} K.H. testified that she was grabbed from behind on an otherwise vacant road late at night. The man who grabbed her put her arms behind her back an d pushed against her with what K.H. believed was his pelvis, grinding it into her. Another ma n approached the front of K.H.,5 sandwiching her between them. When K.H. struggled to break fre e, the man holding her pushed into her, which had the effect of bending her forward and unabl e to twist to see who was holding her. Meanwhile, the man in front of her began asking her to go party with them and offered to give her a blast. She understood the term blast as something h aving to do with drugs. When she asked to be let go so that she could go home, the man who was h olding her laughed and told her no. The man in front of her gra bbed her vagina over her shorts , although she could feel him trying to work his fingers under her shorts. He invited her again to go and have a good time with them. At that point in time, K.H. belie ved that the men intended to d rug, rape, or kill her. She panicked and fought back against them, fre eing herself enough that she c ould run home. {¶9} Upon review of the record, we conclude that, viewing K.H.’s tes timony in a light most favorable to the prosecution, there was sufficient evidenc e from which a rational trier of fact could find that K.H. was restrain ed under circumstances that pr esented a substantial risk of serious physical harm to her. The men ’s words and conduct established that they were interested in engaging in both drug use and s exual activity with K.H., whethe r she consented to it or not. Such activities, if they had continued to occur without K.H.’s conse nt, would have had a substantial chance of causing K.H. to suffer multiple forms of serious phys ical harm. See R.C. 2901.01(A)(5)(a, c, e). In additi on, there does not appear to have been anyone else in the vicinity who could have come to K.H.’s ai d, if her attempt to free herse lf had failed. Accordingly, we conclude that Mr. Wellman’s conviction under Section 2905.01(B) (2) is supported by sufficient evidence. Mr. Wellman’s second a ssignment of error is overrule d.6

ASSIGNMENT OF ERROR I THE GUILTY VERDICTS ON COUNTS ONE, TWO, AND THREE WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶10} Mr. Wellman also argues that his convictions are against the ma nifest weight of the evidence. If a defendant asserts that his convictions are agai nst the manifest weight of the evidence, an appellate court must review the entire record, weigh the evi dence and all reasonable inferences, consider the credibility of witnesses an d determine whether, in resolving conflicts in the evidence, the trier of fact clear ly lost its way and created such a manifest miscarriage of justice that the conviction[s] m ust be reversed and a new trial ordered.
State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evide nce pertains to the greater amount of credible evidence produced in a trial to supp ort one side over the other side. Thompkins , 78 Ohio St.3d 380, at 387. An appellate court should only ex ercise its power to reverse a judgment as against the manifest weight of the evidence in ex ceptional cases. State v. Carson , 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340. {¶11} Mr. Wellman argues that K.H.’s testimony that she was out joggi ng for four and a half hours and then was confronted by two men but was able to b eat them off and escape is incredulous. Even if it did ha ppen, he argues that K.H.’s iden tification of him as one of her attackers is a case of mistaken identity. He notes that K.H. d escribed the man in front of her as a pudgy, mixed-race male, who was approximately 5’10” and weighed 180-200 pounds. She also told police that the man had a f ade style haircut, possibly a t attoo on his arm, and that she thought that she had seen the man before at a certain apartment complex . She acknowledged that the attack occurred before she had reached a nearby streetlight, which mea nt that the light would have become from behind the man, ins tead of illuminating his face. She admitted that she was under a lot of stress and did not know how long the incident actually l asted. She also admitted that she7 had misrecognized people before and that the long period of exe rcise she had been engaging in could have affected her perception. Mr. Wellman also notes tha t, instead of canvassing the apartment complex like he initially intended, Officer Szymanski simply stopped the first man he saw at it and prepared a photo array including that man’s pictu re. According to Mr. Wellman, K.H.’s identification of him as one of her attackers is not bel ievable. {¶12} The State notes that, at trial, Mr. Wellman never challenged wh ether the attack happened, he only denied that he w as one of the men who perpetr ated it. The State points out that the man in front of K.H. was so close to her face that she coul d smell his breath and feel his words on her face. It notes that K.H. testified that this was not th e first time she had seen the man, and that her heart stopped when she s aw his picture in the photo ar ray. The jury was also provided an opportunity to have Mr. Wellman stand unobstructed in front of them, which allowed them to assess whether the description th at K.H. gave to police was rea sonably accurate. The State further notes that Mr. Wellman was the passenger of a vehicle that was stopped near the location of the attack two hours after it. {¶13} Mr. Wellman recognizes in his brief, “the weight to be given th e evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass , 10 Ohio St.2d 230 (1967), paragraph one of the s yllabus. “In reaching its ve rdict, the jury [i]s in the best position to evaluate the credibility of the witnesses and it [i]s entitl ed to believe all, part, or none of the testimony of each witness.” State v. Shank , 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. Upon review of the record, we cannot say that the jury l ost its way when it found that K.H.’s identification of Mr. Wellman as one of the men who attacked he r was credible. We conclude that Mr. Wellman’s convictions are not against the manifest weight o f the evidence. Mr. Wellman’s second assignment of error is overruled.8

III. {¶14} Mr. Wellman’s assignments of error are overruled. The judgment of the Lorain County Court of Comm on Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting 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 constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

CARR, P. J. SCHAFER, J. CONCUR.9

APPEARANCES: DENISE G. WILMS, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assi stant Prosecuting Attorney, for Appellee.