## Facts

- Tamer El-Berri was 31 years old and owned a business where a 16-year-old girl (the victim) worked.
- On December 22, 2004, during a heavy snowfall, El-Berri offered to drive the victim home because she lacked experience driving in snowstorms.
- El-Berri and his girlfriend were family friends of the victim’s mother, and the mother allowed El-Berri to drive the victim home.
- While driving, El-Berri asked to stop at his house to get something; the victim agreed.
- El-Berri drove the victim to his house, removed her clothes, forced her over a couch, and engaged in vaginal intercourse with her.
- The victim testified she was very scared, did not know what El-Berri was going to do, and did not want to have sexual relations with him.
- El-Berri’s car became stuck in the snow, and the victim returned home by taxi.
- The victim’s mother testified that when the victim arrived home she looked “white as a ghost” and “scared to death,” and the victim reported that El-Berri had raped her.
- At the hospital, vaginal swabs confirmed seminal fluid; testing did not yield a male DNA profile.
- El-Berri was indicted for rape and kidnapping with a sexual-motivation specification, convicted by a jury, sentenced to concurrent seven-year prison terms, and classified as a sexually oriented offender.
- El-Berri appealed, challenging (among other things) the denial of his Crim.R. 29 motion for acquittal and the sufficiency/weight of the evidence, and raising sentencing/classification error.

## Issues

1. Did the trial court err by denying El-Berri’s Crim.R. 29 motion for acquittal because the evidence was insufficient to support the rape and kidnapping convictions?
2. Were the rape and kidnapping convictions against the manifest weight of the evidence?
3. Did the trial court commit reversible error in the sentencing and/or sex-offender-classification portion of the judgment?

## Decision

- The court held the State presented sufficient evidence, if believed, to allow a rational juror to find the elements of rape and kidnapping proven beyond a reasonable doubt; the trial court properly denied the Crim.R. 29 motion.
- The court held the convictions were not against the manifest weight of the evidence; the jury was entitled to credit the victim’s testimony and other supporting evidence despite the defense challenges and the absence of a male DNA profile.
- The court affirmed the convictions for rape and kidnapping (including the sexual-motivation specification).
- The court reversed in part as to sentencing/sex-offender-classification matters and remanded for further proceedings consistent with the opinion.

## Legal Principles

- Under Crim.R. 29 and sufficiency review, the question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements proven beyond a reasonable doubt; if reasonable minds could differ, acquittal is not required.
- On sufficiency review, the appellate court does not decide whether the testimony should be believed; it asks whether the evidence, if believed, meets the elements of the offense.
- A rape conviction may be supported by the victim’s testimony describing sexual conduct by force or threat of force; medical or DNA evidence may support the State’s proof but is not required in every case to sustain a conviction.
- Manifest-weight review permits the appellate court to review the whole record and consider credibility, but reversal is reserved for the exceptional case where the jury clearly lost its way and a miscarriage of justice occurred.
- Evidence that a defendant drove a victim past her intended destination and took her to his home, where a sexual assault occurred, may support kidnapping when it shows restraint of liberty for a sexual purpose.
- When a trial court errs in the sentencing or sex-offender-classification portion of the judgment, an appellate court may affirm the convictions yet reverse that portion and remand for correction.

## Conclusion

The Eighth District held that the victim’s testimony, her mother’s observations, and supporting medical evidence were enough for a rational jury to convict El-Berri of rape and kidnapping and that the jury’s verdicts were not against the manifest weight of the evidence; however, the court found error in part of the sentencing/sex-offender-classification disposition, affirmed the convictions, reversed that portion of the judgment, and remanded for further proceedings.


State v. El-Berri, 2008 WL 2764873 (2008)