State v. Al-Dor

2013 Ohio 5731

Opinion

[Cite as State v. Al-Dor, 2013-Ohio-5731.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99747

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MALIK M. AL-DOR DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-557455

BEFORE: Celebrezze, J., Stewart, A.J., and Keough, J.

RELEASED AND JOURNALIZED: December 26, 2013 ATTORNEY FOR APPELLANT

Patricia J. Smith 4403 St. Clair Avenue The Brownhoist Building Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Jeffrey S. Schnatter Andrew Rogalski Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, Malik M. Al-Dor, appeals his convictions for rape and kidnapping.

He alleges that his convictions are against the manifest weight of the evidence. After a

thorough review of the record and law, this court disagrees and upholds his convictions

and sentence.

I. Factual and Procedural History

{¶2} Appellant was friends with Hector Olavarria. The two had known each other

for several months. Appellant met Olavarria’s girlfriend, R.W., and the three hung out

together a number of times. On May 11, 2011, R.W. was at a friend’s house when she

made plans to visit appellant. The two exchanged text messages, and appellant arranged

to walk over to meet R.W. and escort her back to his house to wait for Olavarria to get off

work, drink, and smoke marijuana. Olavarria planned to join them after he got home from

work at approximately 1:00 a.m.

{¶3} At approximately 10:00 p.m., appellant picked up R.W., and the two walked

back to appellant’s house in Lakewood, Ohio. On the way, they stopped at a store and

each purchased an alcoholic beverage.

{¶4} Appellant lived with his parents and other family members. His mother

maintained a strict household and did not allow unmarried females into the house to

fraternize with her sons. Therefore, appellant snuck R.W. in through a side door that

connected directly to the basement. The two hung out in a cramped room in the

basement that had a few chairs, a sleeping mat, a television, and a stereo. They were drinking and smoking marijuana. At first, R.W. was texting her friends and Olavarria,

but due to the poor reception in the basement, her phone battery depleted quickly and her

phone ceased functioning at approximately 1:00 a.m. She described the situation as two

friends hanging out while waiting for her boyfriend to get there.

{¶5} R.W. stated appellant began to steer the conversation to more prurient topics

and she became uncomfortable. She wanted to leave, but appellant told her that a friend

would give her a ride home if she waited a while longer. After more explicit statements

by appellant, R.W. attempted to leave at approximately 4:00 a.m. Appellant got between

her and the doorway. She kicked him and pulled his hair, but he pushed her down onto

the mat on the floor. According to R.W., appellant threatened her with death and great

bodily harm if she called out or attempted to leave. He cautioned her to remain quiet so

that his family did not hear her. He then raped her vaginally, anally, and orally. She

was allowed to leave around 6:00 a.m.

{¶6} R.W. stated she walked home sobbing. Once there, Olavarria, who had been

looking for her most of the night, let her in to their shared apartment. She hysterically

relayed the events of the night, and the two arranged a ride to the hospital.

{¶7} R.W. arrived at the hospital but was transferred to a different hospital where

she could be examined by a sexual assault nurse examiner (the “SANE”). She was also

interviewed by Lakewood police officer Robert Pickens, and her statement was taken.

Her clothes were collected by Officer Pickens after she arrived at an apartment where she

had other clothes to wear. {¶8} The case was investigated by Detective Larry Kirkwood, Jr. of the Lakewood

Police Department. Det. Kirkwood interviewed R.W., sent collected evidence for DNA

testing, and eventually conducted a recorded interview of appellant. After R.W. told the

detective the identity of her attacker, Det. Kirkwood asked appellant to voluntarily make a

statement. Appellant went to a Lakewood police station and was interviewed by Det.

Kirkwood after an explanation and waiver of rights. Det. Kirkwood also obtained a

voluntary DNA sample from appellant.

{¶9} The DNA evidence was sent to the Bureau of Criminal Investigation (“BCI”)

for analysis. A BCI technician forwarded the samples to an independent lab for analysis.

Once Det. Kirkwood received the lab report, which indicated appellant was the likely

contributor, he initiated appellant’s arrest.

{¶10} Appellant was indicted by a grand jury on January 4, 2012. He was

charged with two counts of rape in violation of R.C. 2907.02(A)(2) and one count of

kidnapping in violation of R.C. 2905.01(A)(3). The kidnapping count carried a sexual

motivation specification, and all counts carried sexually violent predator specifications.

Appellant chose to have the sexually violent predator specification tried to the bench.

The remaining charges were tried to a jury beginning on July 9, 2012.

{¶11} At trial, R.W. and Olavarria recounted the events of May 11 and 12, 2011.

The SANE, Barbara Gifford, also testified about her treatment of R.W. Det. Kirkwood

and Officer Robert Pickens also testified about their roles in the investigation. Finally,

Shawn Weiss, an employee of LabCorp, Inc., testified about the DNA analysis he conducted. He analyzed the samples collected and utilized a y-chromosome test, called

Y-STR, to determine that appellant, or a paternal male relative, could not be excluded as a

major contributor of the samples analyzed.

{¶12} The jury found appellant guilty of two counts of rape and one count of

kidnapping with sexual motivation. The court found appellant not guilty of the sexually

violent predator specification. On July 26, 2012, appellant was sentenced. The court

merged the kidnapping count and sentenced appellant to five years on one count of rape

and seven years on the other. These sentences were to be served concurrently, for a total

sentence of seven years. Appellant was labeled a Tier III sex offender and notified of

postrelease control. This delayed appeal followed with leave of this court where

appellant assigns one error for review:

I. The jury clearly lost its way when finding the appellant guilty of forcible rape where the evidence simply does not support such a verdict when the victim had motive to falsify the report and where the facts and circumstances surrounding the incident [do] not support the jury’s conclusion. II. Law and Analysis

{¶13} Appellant claims that the jury’s verdicts are against the manifest weight of

the evidence. A manifest weight challenge questions whether the state met its burden of

persuasion at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶

12. This court “weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the 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, 388, 678 N.E.2d 541 (1997). A conviction should be reversed as against the

manifest weight of the evidence only in the most “exceptional case in which the evidence

weighs heavily against the conviction.” Id.

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 of the testimony are primarily for the trier of fact. 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.”

(Citations omitted.) State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶

26, quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.

{¶14} Appellant was convicted of two counts of rape as defined under R.C.

2907.02(A)(2) and one count of kidnapping as defined in R.C. 2905.01(A)(3). These

statutes provide in pertinent part, respectively:

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. No person, by force, threat, or deception, * * * shall remove another from the place where the other person is found or restrain the liberty of the other person * * * [t]o terrorize, or to inflict serious physical harm on the victim or another[.]

Appellant claims the evidence offered at trial in support of these convictions is

unconvincing. We disagree.

{¶15} R.W. testified about the ordeal she endured on May 11 and 12, 2011. She

testified that she initially was just hanging out with a friend waiting around until her

boyfriend could join them for the evening. When she became uncomfortable and wished

to leave, appellant kept coming up with excuses as to why she should wait. He told her

she could not leave because his family members would see her and he would get in

trouble. He also indicated the door at the top of the stairs was locked. This went on for

some time until R.W. attempted to leave the basement. She was physically prevented

from leaving by appellant. He then threatened her that she had to remain quiet and have

sex with him if she wanted to leave. He threatened her with bodily harm and death if she

did not comply. She testified that appellant raped her vaginally, anally, and orally.

{¶16} At trial, appellant’s counsel attempted to color R.W.’s testimony as that of a

woman who had consensual sex and did not want to get in trouble with her boyfriend.

This defense contrasts greatly with appellant’s recorded statement that was played for the

jury. There, he denied having sex with R.W. and denied that she had ever been in his

basement. However, R.W. described to police officers the room in the basement in great

detail despite appellant’s claims that she had never been in the basement before. The DNA analysis performed on samples collected by the SANE from R.W.’s vagina and

anus also revealed that appellant was a likely contributor. This stands in stark contrast to

appellant’s statement to police that he did not have sex with R.W. and she had never been

in his basement. This is not a case where the evidence presented at trial weighs in

appellant’s favor. The evidence adduced demonstrates appellant’s guilt.

{¶17} R.W. clearly testified to all the elements of rape. She indicated that

appellant threatened her with bodily harm and death if she did not keep quiet and have

sex with him. She cried throughout the rape, and appellant told her to stop crying and be

quiet.

{¶18} The kidnapping subsection under which appellant was convicted is not the

usual one associated with rape, R.C. 2905.01(A)(4). It appears the state was attempting

to distinguish the conduct and charges in the present case from those where the

kidnapping and rape convictions would normally merge at sentencing.1 Despite this, the

testimony clearly met the elements of kidnapping under R.C. 2905.01(A)(3). R.W.

testified to being forcefully restrained from leaving the basement by appellant. It is also

difficult to imagine that the act of forcible rape would not qualify as terrorizing or

inducing terror in the victim, thereby satisfying that element of the kidnapping offense.

The Ninth District has found that captivity coupled with acts of violence, sexual assault,

threats, and acts inducing fear satisfy elements of kidnapping under R.C. 2905.01(A)(3).

The state’s attempt to avoid merger ultimately failed when the trial court 1

determined that the kidnapping was incidental to the rape and merged it at sentencing. State v. Razzano, 9th Dist. Lorain No. 96CA006630, 1998 Ohio App. LEXIS 1752 (Apr.

22, 1998). That case had more acts of violence and torture, but stands for the proposition

that acts such as those in the present case may constitute the elements of kidnapping

under R.C. 2905.01(A)(3). In the present case, appellant’s acts of hitting R.W., pushing

her, raping her, and threatening to kill her meet the “terrorize” element in this case.

{¶19} Appellant claims R.W.’s testimony cannot be believed because it was

inconsistent and incredible. He claims that at any time she could have yelled and his

family members would have heard her and she could have escaped. However, R.W.

testified that for most of the night, she remained in the basement and was quiet because

she was hanging out with a friend who she did not want to get in trouble. She testified

that, throughout the night, he came up with excuses as to why she needed to wait a bit

longer to leave. Once she attempted to leave, he assaulted her, threatened her, and made

her be quiet.

{¶20} After a review of the record, it is clear that the jury did not lose its way in

convicting appellant of rape and kidnapping.

III. Conclusion

{¶21} Appellant’s convictions for rape and kidnapping were established beyond a

reasonable doubt. The victim’s testimony was found to be credible by the jury and was

corroborated by her detailed description of the basement room, as seen in the photographs

introduced by the state. DNA evidence also corroborated R.W.’s testimony. The jury

did not clearly lose its way in this case. {¶22} Judgment 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 convictions 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.

FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR