State v. James , 2017 Ohio 7861 ( 2017 )

[Cite as State v. James, 2017-Ohio-7861.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2016CA00144
:
VARLONUS JAMES :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, case no. 2015CR2009
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 26, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. EUGENE M. CAZANTES
STARK CO. PROSECUTOR 101 Central Plaza S., Ste. 1000
RONALD MARK CALDWELL Canton, OH 44702
110 Central Plaza S., Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2016CA00144 2
Delaney, P.J.
{¶1} Appellant Varlonus James appeals from the judgment entry of conviction
and sentence entered in the Stark County Court of Common Pleas on May 19, 2016.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on December 12, 2015 when victim Jane Doe went to
appellant’s apartment for a party. After other guests left, appellant held Doe against her
will for several hours and beat and raped her. The following facts are adduced from the
record of appellant’s jury trial.
Doe Attends a Party
{¶3} Doe and appellant knew each other for some length of time. Their
relationship was described as casual and the two had been intimate in the past but not
recently. On December 12, 2015, appellant’s friend brought Doe and a female friend to
appellant’s apartment on Arch Street in Alliance. Doe’s friend left shortly after arriving,
but two others were present in addition to appellant and Doe: “Bob” and “Peggy.” The
group drank beer and listened to music. Bob and Peggy smoked crack cocaine; Doe
testified she took two hits from the crack pipe but there was not enough substance left in
the pipe to get her high. At some point she and Peggy briefly left the apartment to buy
cigarettes and crack. Doe testified appellant drank vodka and smoked crack, causing
him to behave erratically and pace around the apartment.
{¶4} Throughout the party, appellant repeatedly asked Doe to come into the
bedroom with him and she refused. Bob told appellant to leave Doe alone.
Stark County, Case No. 2016CA00144 3
{¶5} Around 2:00 a.m., appellant came into the bathroom where Doe was and
told her Bob and Peggy had left, so they could go into the bedroom now. Doe again
refused and the two returned to the living room and sat on the couch, listening to music.
Doe picked up her cell phone intending to Google the singer they were listening to.
Appellant became enraged; he grabbed the cell phone and threw it at the door. Doe
picked up the phone and saw the screen was cracked. Doe was shocked because she
had never seen appellant angry or violent before. She testified she believed appellant
was angry because he thought she wanted to call someone for a ride home.
{¶6} Doe reached down to pick up her phone case from the floor, and appellant
grabbed her by the neck and began beating her and choking her. He forcefully pushed
her onto the couch and grabbed the phone and bent it back and forth. Doe grabbed at
appellant in an attempt to get him off her and ripped his sweater. Appellant squeezed her
neck hard, choking her, and hit her in the face.
{¶7} Doe could not breathe or talk but tried to get away. Appellant called her
“horrible names” as the assault continued, and made statements such as “everyone in
town has had a piece, now I’m getting one;” “you’re going to die being my wife;” “you
think I’m a game but I’m not one to play with;” and “you’ll see your kids in heaven.”
Appellant punched Doe repeatedly in the face. She testified the assault went on for about
three hours.
{¶8} Doe’s face was bleeding profusely and she wiped a bloody handprint onto
the wall while on her knees. At one point she wiped blood off herself with a towel. Finally
appellant told Doe she had five seconds to take her clothes off and he started counting
down backwards. Doe testified appellant raped her vaginally and the sexual assault
Stark County, Case No. 2016CA00144 4
transpired over five minutes, on the couch in the living room. Appellant did not ejaculate.
He suddenly jumped off her, stating “what have I done?” Appellant hugged and kissed
Doe, telling her he was sorry.
{¶9} Doe pretended “everything was all right” in an attempt to get out of the
apartment. She told appellant no one needed to know what happened and “it was fine.”
Appellant asked her if she wanted anything and she asked for cigarettes. Appellant got
his wallet out to count money and told Doe to get dressed.
{¶10} The two left the apartment and walked to a nearby Walgreen’s drugstore
that was open for business, even though it was early in the morning. Doe told appellant
she couldn’t go into the store looking visibly beaten, so he went into the store alone to
buy cigarettes. Doe watched him inside the store and saw him get in line at the cash
register. She took off running toward the nearby Alliance Community Hospital parking
lot, where she saw two people getting into their cars.
Doe Seeks Help
{¶11} Eric Morrison is a nurse at Alliance Community Hospital and had just
completed his shift. He walked out with a co-worker and they were both getting into their
cars when a woman came running “frantically” across a grassy area bordering the parking
lot. The woman ran up and tried to get into Morrison’s car; at first he locked the doors
because he didn’t realize what was happening. The woman said “this guy is trying to kill
me” and Morrison saw a black male coming toward them across the grassy area, holding
out a pack of cigarettes.
{¶12} Morrison walked around his car with Doe hovering behind him as he listened
to her story. He described Doe as distraught, obviously injured, and very scared.
Stark County, Case No. 2016CA00144 5
Appellant approached and tried to give Doe the cigarettes, speaking to Doe continuously
but Morrison couldn’t understand what he was saying because appellant seemed to have
a speech impediment. Morrison felt the situation was dangerous and signaled to his co-
worker in the other car to call hospital security and 911. Morrison tried to encourage
appellant to leave but he was adamant about speaking to Doe.
{¶13} Morrison described Doe as afraid for her life and crying. He observed
apparent serious injuries including multiple bruises on the left side of her face, abrasions,
and scratches on her neck as if she had been choked. Morrison remained with Doe until
police and security arrived.
Investigation, Search, and Statements
{¶14} Ptl. Donald Bartolet of the Alliance Police Department responded to the
parking lot and observed Doe with a badly swollen left eye, red marks, and scratches on
her face and torso. Doe appeared to have been badly beaten. Hospital security advised
Bartolet she had been held by appellant for some length of time before she was able to
get away, and she had been sexually assaulted.
{¶15} Appellant told Bartolet that Doe was crazy and had attacked him; he tapped
the hood of the police cruiser to demonstrate how he “barely” struck her to get off him.
Bartolet told appellant Doe’s injuries were too significant to support his story. Bartolet
noticed blood on appellant’s hands. He cuffed appellant, secured him in the cruiser,
Mirandized him, and called a detective to the scene. Bartolet’s conversations with Doe
and appellant were captured on his point-of-view camera and a DVD was played at trial
as appellee’s Exhibit 3.
Stark County, Case No. 2016CA00144 6
{¶16} Bartolet’s interaction with Doe was quick because she needed to be
transported by ambulance to Aultman Hospital, despite the fact that she was found in the
parking lot of Alliance Community Hospital. Bartolet explained that the extent and severity
of her injuries mandated transport to Aultman Hospital. Additionally, the allegation of
sexual assault required transport because Alliance does not have a sexual-assault nurse
examiner. Bartolet photographed Doe, who remained upset and crying. She was holding
her face but Bartolet could see that her left eye was completely swollen shut.
{¶17} Bartolet transported appellant back to the apartment and appellant
consented to a search. Inside the apartment, police found evidence consistent with Doe’s
account, including a bloody handprint on the wall, a significant bloodstain on the couch
cushion, a woman’s broken fingernail, a bloody towel, a torn shirt, and a broken cell
phone. Police took photos and samples of blood throughout the small apartment.
{¶18} Appellant was interviewed at the Alliance Police Department by Detective
Shatzer and a DVD of the interview was introduced as appellee’s Exhibit 4. Appellant
denied striking Doe but admitted putting his hands around her throat, purportedly to get
her off him. Appellant said this accounted for the blood on his hands. Despite appellant’s
allegations that Doe assaulted him, Shatzer found no injuries other than scratches on his
chest consistent with the tear in his shirt. Appellant claimed Doe’s eye was not injured
when they left the apartment to get cigarettes. At various points in the interview, appellant
acknowledged he and Doe were the only occupants in the apartment while the assault
occurred, but other times he implied another person was present who may have caused
Doe’s injuries, but he was unable or unwilling to identify that person. He admitted they
had intercourse, although he said it was consensual, and he denied being forceful with
Stark County, Case No. 2016CA00144 7
Doe. He claimed the blood on the towel came from Doe’s bloody nose. When confronted
by Shatzer with the fact that there was too much blood throughout the apartment to have
come from a bloody nose, appellant insisted he did not punch Doe and only struck her
lightly with an open palm because she had a “crack fit.”
{¶19} In the meantime, that morning Doe was transported to Aultman Hospital
where she was found to have a broken nose and a concussion. She was in pain from a
broken bone in her face. She made contact with a sexual assault nurse examiner (SANE)
and told the nurse she was raped, but left before a rape exam could be completed. The
nurse testified at trial that Doe had to be “medically cleared” before the exam could take
place, and the extent of her injuries made everything take longer. The nurse told Doe
before she left that she essentially had 72 hours to have the exam to preserve evidence.
Doe left the hospital, though, because she had a ride and was worried how she would get
back to Alliance.
{¶20} Doe did return to Aultman on December 14 and a second SANE nurse,
Kimberly Heffner, was able to complete a rape kit. Heffner testified she documented
Doe’s injuries including abrasions and bruising to her neck, chest, and wrist; a swollen
and bruised tongue; fingernails ripped off;1 a swollen nose; and her left eye was bruised
and swollen to the extent that medical personnel could not open it. Heffner did not
observe any vaginal injuries but she testified this is not uncommon in a rape exam and is
not dispositive of whether the subject was sexually assaulted.
1Heffner testified Doe had the type of artificial nails which are cemented onto the nail bed,
not “press-on” nails. Heffner estimated it would take significant force to rip the nails off.
Stark County, Case No. 2016CA00144 8
{¶21} Evidence collected from appellant’s apartment, the rape kit, the parties’
D.N.A. standards, and their clothing was submitted to B.C.I. for forensic analysis. D.N.A.
analysis indicated Doe’s blood was on appellant’s hands and the apartment wall. Other
samples were inconclusive.
{¶22} One witness testified for the defense at trial, a friend of appellant’s with
whom he used to live. The witness testified he had a party “4 or 5 years ago,” both
appellant and Doe attended, and they seemed to know each other.
{¶23} Appellant did not testify on his own behalf.
Indictment, Trial, and Conviction
{¶24} Appellant was charged by indictment as follows: one count of rape with a
repeat violent offender specification pursuant to R.C. 2907.02(A)(1) and 2941.149, a
felony of the first degree [Count I]; one count of kidnapping with a sexual motivation
specification and a repeat violent offender specification pursuant to R.C. 2905.01(A)(3)
and/or (A)(4), 2941.147, and 2941.149, a felony of the first degree [Count II]; one count
of felonious assault with a sexual motivation specification and a repeat violent offender
specification pursuant to R.C. 2903.11(A)(1), 2941.147, and 2941.149, a felony of the
second degree [Count III]; and one count of disrupting public services pursuant to R.C.
2909.04(A)(1), a felony of the fourth degree [Count IV].
{¶25} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury. The repeat violent offender specifications were bifurcated and heard separately by
the trial court. Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at the
close of appellee’s evidence and at the close of all of the evidence; the motions were
Stark County, Case No. 2016CA00144 9
overruled. Appellant was found guilty as charged and sentenced to an aggregate prison
term of 38 years. The trial court also designated appellant a Tier-III sex offender.
{¶26} Appellant now appeals from the judgment entries of his convictions and
sentence.
{¶27} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶28} “I. THE APPELLANT WAS DENIED A FAIR TRIAL DUE TO PREJUDICIAL
INTERRUPTIONS BY THE TRIAL COURT.”
{¶29} “II. THE TRIAL COURT ERRED BY IMPROPERLY ADMITTING
HEARSAY TESTIMONY.”
{¶30} “III. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.”
{¶31} “IV. THE TRIAL COURT’S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
{¶32} “V. THE TRIAL COURT ERRED IN NOT FINDING THE CHARGES OF
RAPE AND KIDNAPPING TO BE ALLIED OFFENSES AND MERGING THOSE
COUNTS FOR SENTENCING.”
ANALYSIS
I.
{¶33} In his first assignment of error, appellant argues interjections by the trial
court prejudiced the jury and denied him a fair trial. We disagree.
Stark County, Case No. 2016CA00144 10
{¶34} During a jury trial, the comments and manner of the trial court may have a
strong impact on the jury. If the trial court’s comments rise to the level of prejudicing the
jury, the defendant is denied a fair trial. The conduct of the trial court may affect the
impartiality of the jury. The Due Process Clause of the Fourteenth Amendment to the
United States Constitution requires that a criminal defendant shall be tried before a panel
of fair and impartial jurors. State v. Stevens, 5th Dist. Morgan No. 14 AP 0005, 2015-
Ohio-307, ¶ 14, appeal not allowed, 142 Ohio St.3d 1519, 2015-Ohio-2341, 33 N.E.3d
66, citing State v. Johnson, 5th Dist. Stark No. 2011–CA–237, 2012–Ohio–3227, ¶ 24.
{¶35} The trial court’s control of a trial is circumscribed by statutes and the Rules
of Evidence. R.C. 2945.03 states, “[t]he judge of the trial court shall control all
proceedings during a criminal trial, and shall limit the introduction of evidence and the
argument of counsel to relevant and material matters with a view to expeditious and
effective ascertainment of the truth regarding the matters in issue.” In addition, Evid.R.
611(A) provides that “[t]he court shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.” Evid.R. 614 further permits the court to “interrogate witnesses, in an
impartial manner, whether called by itself or by a party.”
{¶36} In exercising the duty to control a criminal trial, the trial judge is to remain
impartial and refrain from making comments which may influence a jury. State v. Boyd,
63 Ohio App.3d 790, 794, 580 N.E.2d 443 (8th Dist.1989). “[T]he judge must be cognizant
of the effect of [ ] comments upon the jury [.]” State v. Wade, 53 Ohio St.2d 182, 187, 373
Stark County, Case No. 2016CA00144 11
N.E.2d 1244 (1978), vacated and remanded on other grounds. “[T]he Court's participation
by questioning or comment must be scrupulously limited, lest the court, consciously or
unconsciously, indicate to the jury its opinion on the evidence or on the credibility of a
witness.” State ex rel. Wise v. Chand, 21 Ohio St.2d 113, 256 N.E.2d 613 (1970), at
paragraph three of the syllabus. Furthermore, “juries are highly sensitive to every
utterance by the trial judge.” Wade at 188.
{¶37} Appellant in this case argues certain comments by the trial court went
beyond the court’s power to control the trial and were inappropriate, to the extent that the
comments prejudiced the jury. In deciding whether a trial judge's comments were
appropriate, we must determine whether the comments were prejudicial to the
defendant's right to a fair trial. Wade, 53 Ohio St.2d at 188. “Where a jury might infer the
court's opinion of a witness through the persistence, tenor, range, or intensity of its
questions, the interrogation is prejudicially erroneous. While the court can ask neutrally
phrased questions, its questions should not suggest disbelief in a witness's testimony.”
State v. Prokos, 91 Ohio App.3d 39, 44, 631 N.E.2d 684 (4th Dist.1993), citing Chand,
supra, 21 Ohio St.2d 113 at paragraph four of the syllabus.
{¶38} Generally, in determining whether a trial judge's remarks were prejudicial:
(1)the burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is
presumed that the trial judge is in the best position to decide when a breach is committed
and what corrective measures are called for, (3) the remarks are to be considered in light
of the circumstances under which they are made, (4) consideration is to be given to their
possible effect upon the jury, and (5) to their possible impairment of the effectiveness of
counsel. State v. Petrone, 5th Dist. Stark No. 2011CA00067, 2012-Ohio-911, ¶ 40, appeal
Stark County, Case No. 2016CA00144 12
not allowed, 132 Ohio St.3d 1463, 2012-Ohio-3054, 969 N.E.2d 1231, citing Wade, supra,
53 Ohio St.2d at 188.
{¶39} An appellate court reviewing a trial court's interrogation of witnesses and
comments must determine whether the trial court abused its discretion. State v. Davis, 79
Ohio App.3d 450, 454, 607 N.E.2d 543 (4th Dist.1992). However, the failure to object to
the content of the judicial statements as being prejudicial to the appellant's rights has
been held to constitute a waiver of the error and arguably precludes consideration of the
issue upon appeal, for, absent an objection, the trial judge is denied an opportunity to
give corrective instructions as to the error. Wade, 53 Ohio St.2d at 188, citing State v.
Williams, 39 Ohio St.2d 20, 313 N.E.2d 859 (1974). Accordingly, any errors not brought
to the attention of the trial court by objection or otherwise are waived and may not be
raised on appeal unless they rise to the level of plain error. Petrone, supra, 2012-Ohio-
911 at ¶ 41; Hamilton v. Clemans, 121 Ohio App.3d 337, 339, 700 N.E.2d 33 (12th
Dist.1997), citing State v. Williford, 49 Ohio St.3d 247, 251, 551 N.E.2d 1279 (1990). To
constitute plain error, it must appear from the record that an error occurred and that except
for that error the outcome of the trial would have been different. Clemans at 339, citing
State v. Long, 53 Ohio St .2d 91, 97, 372 N.E.2d 804 (1978).
{¶40} Without citation to the record, appellant notes a number of interjections by
the trial court which he claims to be prejudicial. In order to determine the prejudicial effect,
if any, from these interjections, we have examined the entire context of each of these
instances. See, State v. Spencer, 3rd Dist. Marion No. 9–13–50, 2015-Ohio-52, ¶ 75,
appeal not allowed, 143 Ohio St.3d 1479, 2015-Ohio-3958, 38 N.E.3d 900.
{¶41} Upon our review of the record, we note the following statements in context:
Stark County, Case No. 2016CA00144 13
1) [Defense counsel is cross-examining Jane Doe about her
statements to the nurse at Aultman Hospital:]
* * * *.
[DEFENSE COUNSEL]: Now, you testified previously that
you and [appellant] had been intimate and fooled around with one
another; is that correct?
[DOE]: A few times, yeah.
[DEFENSE COUNSE]L: Pardon me?
[DOE]: A few times, yes.
[DEFENSE COUNSEL]: Did you—when you went in,
discussing the same medical assessment that we just talked about *
* * did [the nurse] * * * ask you if [in] terms of this incident, if you had
any sexual relationship with the alleged perpetrator?
[DOE]: She asked me if—what, that night? [* * * *.] That
morning? Yeah, I told her he raped me; she never asked prior.
[DEFENSE COUNSEL]: Okay. So if the medical records
again, and I don’t know if you want to see this, the medical records
indicate Patient states she was drinking with a friend and that she
has known for three months and she has no prior sexual relationship
with, how did the nurse come to that conclusion?
THE COURT: Well, objection. She wouldn’t know how
the nurse came to that conclusion. Maybe rephrase it.
(Emphasis added).
Stark County, Case No. 2016CA00144 14
[DEFENSE COUNSEL]: [Okay.] Did you state that to the
nurse?
[DOE]: I don’t even remember her asking me that.
[DEFENSE COUNSEL:] So you don’t remember saying that
at all?
[DOE]: No, and it’s irrelevant anyways.
THE COURT: Okay. Well, just you didn’t remember saying it.
The Court will determine what’s relevant, okay.
* * * *.
T. I., 209-210.
2) [Defense counsel is questioning Jane Doe about her testimony
on direct that the physical assault went on for about 3 hours and she
sustained approximately 30 blows to the head:]
* * * *.
[DEFENSE COUNSEL]: Now, you testified he was using his
fist to hit you?
[DOE]: Yes.
[DEFENSE COUNSEL]: And what fist was that?
[DOE]: Both.
[DEFENSE COUNSEL]: He was using both fists?
[DOE]: Yep.
[DEFENSE COUNSEL]: Was he using both fists equally or
was he using one more than the other?
Stark County, Case No. 2016CA00144 15
[DOE]: I don’t know.
THE COURT: Well, that’s kind of hard to determine if
you’re getting hit. I mean that’s, that’s speculative. (Emphasis
added).
[DEFENSE COUNSEL]: I’ll withdraw the question, Your
Honor.
THE COURT: Yeah, let’s ask a new question.
[DEFENSE COUNSEL]: So at—when all this is happening
several hours at some point did somebody come to the door of the
building?
[DOE]: No. * * * *.
T. I., 213-214.
3 and 4) [Defense counsel questions Jane Doe about what she told
detectives about how long the assault transpired and what she said
to appellant:]
* * * *.
[DEFENSE COUNSEL]: And again in speaking with the
detective in this matter did you indicate to him how long you were
raped?
[DOE] I just said it was very short.
[DEFENSE COUNSEL]: Did you tell him that you were raped
a couple hours?
[DOE]: No, I said I was beat a couple hours.
Stark County, Case No. 2016CA00144 16
[DEFENSE COUNSEL]: So if his report says otherwise, is
that a, a typo on his part?
[DOE]: Apparently.
THE COURT: She wouldn’t know what—whether it’s a
typo or what his report is. You should ask the officer that if he’s
brought into court. (Emphasis added).
[DEFENSE COUNSEL]: I’ll withdraw the question, Your
Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: At some time prior to this * * * did
you * * * tell him to get it over with? [ ] To just get it over with; were
those your words?
[DOE]: I don’t know.
[DEFENSE COUNSEL]: May I have one moment, Your
Honor?
THE COURT: Sure.
[DEFENSE COUNSEL]: Thank you. [ ]. So is it your
testimony, just to clarify, you never told Detective Shatzer that you
told him to just get it over with?
[DOE]: For who to get it over with?
[DEFENSE COUNSEL]: That you told [appellant]—
[DOE]: I’m not sure if I did, but if he’s raping me, I would hope
that he would get it over with.
Stark County, Case No. 2016CA00144 17
THE COURT: Okay. Well, let’s calm down. She’s already
answered that and so we know what—she said she didn’t recall
during the rape whether she had told him to get it over with or
not. (Sic in original). We’ll let the detective if he has to testify
as to what and what comments may have been, so I think we
should go to a, a different question. (Emphasis added).
[DEFENSE COUNSEL]: So you testified that you were
bleeding. Where were you bleeding from?
* * * *.
T. I., 218-220.
{¶42} Our review of the trial court’s statements reveals that they are limited to
keeping witnesses and counsel on track with relevant issues in the case, preventing
mischaracterization of witnesses’ testimony, and keeping heated exchanges from getting
out of control, “all fairly common ground in any criminal trial and within the trial court's
discretion to control.” Spencer, supra, 2015-Ohio-52 at ¶ 76. We note with approval the
assessment of the Third District Court of Appeals in Spencer, in which it reviewed a trial
with a greater number of instances of sua sponte interjection than the instant case:
The primary issue [appellant] raises with regard to these
interjections beyond the mere sua sponte nature of the interjections
alone, centers upon the admonitions, comments and remarks the
trial court often made directly to defense counsel along with the
interjections. In conducting our own review of these interjections in
the context of the trial and what was going on with each witness at
Stark County, Case No. 2016CA00144 18
the time, it is our conclusion that while perhaps overly aggressive
and preemptive, and certainly annoying to trial counsel, the behavior
of the trial court in this case is more about the chosen style of certain
judges in conducting a jury trial, rather than the substantive
deprivation of any legal rights during this trial.
State v. Spencer, 3rd Dist. Marion No. 9–13–50, 2015-Ohio-
52, ¶ 78, appeal not allowed, 143 Ohio St.3d 1479, 2015-Ohio-3958,
38 N.E.3d 900.
{¶43} In the instant case, we note the trial court’s interjections and sua sponte
comments cutting off counsel mid-stream applied to appellee as well. For example, the
trial court admonished the victim when she refused to reveal where she and Peggy went
to get cigarettes and crack and prevented appellee from asking witnesses to interpret
unintelligible portions of the DVDs. (T. I, 223-224, T. II, 70-73).
{¶44} Taken in context, “we cannot say in this case that these interjections, either
individually or cumulatively, went so far beyond the legitimate scope of the discretion and
prerogative of a trial court in conducting a jury trial, so as to constitute prejudicial error
and thereby deprive the defendant of a fair trial under the standards of review set forth
earlier.” Spencer, supra, 2015-Ohio-52 at ¶ 81.
{¶45} The trial court gave a general curative instruction that the jury was to
disregard anything the court said or did which they might consider an indication of the
court's view of the facts. T. 239. The effect of the jury instruction is to minimize any
prejudicial effect the court’s comments may have had upon the jurors. State v. Scott, 26
Ohio St.3d 92, 96, 497 N.E.2d 55 (1986) (per curiam); State v. Lucky, 5th Dist. Delaware
Stark County, Case No. 2016CA00144 19
No. 07CAA040018, 2008-Ohio-331, ¶ 50. The jury is presumed to follow the instructions
of the trial court. Pang v. Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990),
paragraph four of the syllabus. Appellant has not pointed to any evidence in the record
that the jury failed to do so in this case.
{¶46} Upon review of the judge's comments in light of the evidence presented to
the jury in this matter, we are not persuaded that the outcome of the trial clearly would
have gone the other way but for the alleged error. State v. Turner, 5th Dist. Richland No.
2010-CA-0016, 2010-Ohio-5420, ¶ 35. The remarks at issue, when analyzed in light of
the circumstances under which they were made, did not cast an aspersion upon
appellant's innocence, the burden of proof or any other fundamental constitutional right
of the parties. Id. We cannot conclude that the outcome of the trial clearly would have
been different but for the comments. Id.; see also, State v. Woods, 5th Dist. Richland No.
05 CA 46, 2006-Ohio-1342, ¶ 32; State v. Evege, 5th Dist. Ashland No. 99-COA-01287,
unreported, 2000 WL 93640, *6–7 (Jan. 21, 1999). Under the circumstances of this case,
we find that no plain error was committed.
{¶47} Appellant’s first assignment of error is overruled.
II.
{¶48} In his second assignment of error, appellant argues the trial court
improperly admitted hearsay testimony. We disagree.
{¶49} The admission or exclusion of relevant evidence is a matter left to the sound
discretion of the trial court. Absent an abuse of discretion resulting in material prejudice
to the defendant, a reviewing court should be reluctant to interfere with a trial court’s
decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
Stark County, Case No. 2016CA00144 20
{¶50} Appellant’s argument is premised upon the testimony of Detective Shatzer;
specifically, Shatzer’s testimony about what Doe told him when he spoke to her in the
Alliance Hospital parking lot in the immediate aftermath of the assault and her escape
from appellant. We note only once was an objection raised: appellee asked whether Doe
told him appellant broke her phone; Shatzer stated she did; appellee asked if she told him
why appellant broke her phone, and appellant objected. The objection was overruled and
Shatzer answered Doe was attempting to call for help. (T.II, 50-51).
{¶51} We find the statements by Doe to Shatzer, including about the broken
phone, were properly admitted by the trial court as exceptions to the hearsay rule.
Hearsay is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C).
Hearsay is generally not admissible subject to several exceptions. Evid.R. 802, 803.
{¶52} Appellant summarily argues the statements of Doe admitted through
Shatzer are hearsay but appellee responds the statements were properly admissible as
excited utterances, and we agree. Evid.R. 803(2) describes hearsay exceptions and
defines an excited utterance as “[a] statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition.” A four-part test is applied to determine the admissibility of statements as an
excited utterance:
(a) that there was some occurrence startling enough to
produce a nervous excitement in the declarant, which was sufficient
to still his reflective faculties and thereby make his statements and
declarations the unreflective and sincere expression of his actual
Stark County, Case No. 2016CA00144 21
impressions and beliefs, and thus render his statement of declaration
spontaneous and unreflective,
(b) that the statement or declaration, even if not strictly
contemporaneous with its exciting cause, was made before there
had been time for such nervous excitement to lose a domination over
his reflective faculties so that such domination continued to remain
sufficient to make his statements and declarations the unreflective
and sincere expression of his actual impressions and beliefs,
(c) that the statement or declaration related to such startling
occurrence or the circumstances of such starling occurrence, and
(d) that the declarant had an opportunity to observe personally
the matters asserted in his statement or declaration.
State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984
N.E.2d 948, ¶ 166 (citations omitted).
{¶53} The statement need not be made during the course of the startling event.
Rather, it is only necessary that the declarant still appeared nervous or distraught and
that there was a reasonable basis for continuing to be emotionally upset. In addition, we
note that there is no specific amount of time after which a statement can no longer be
considered as an excited utterance and not the result of reflective thought. State v. Taylor,
66 Ohio St.3d 295, 612 N.E.2d 316 (1993).
{¶54} We find no error in the trial court's admission of Doe’s statements to
Shatzer; she had firsthand knowledge of the event and the statements were made while
she was under the stress of the excitement caused by the sustained assault. At trial,
Stark County, Case No. 2016CA00144 22
Shatzer testified he spoke with Doe very briefly prior to her transport to the hospital; she
appeared very badly beaten and was upset and crying. The conversation occurred within
minutes of her escape from appellant. We find that the statements to Shatzer were made
while Doe was still upset, nervous and distraught over the incident. State v. Boss, 5th
Dist. Ashland No. 16–COA–026, 2017-Ohio-697, ¶ 27. We therefore concur with appellee
that Doe’s statements to the detective qualified as an excited utterance because she still
remained under the stress of a violent event. Id. at ¶ 28.
{¶55} Appellant’s second assignment of error is overruled.
III.
{¶56} In his third assignment of error, appellant argues he received ineffective
assistance of counsel. We disagree.
{¶57} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158(1955).
{¶58} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
Stark County, Case No. 2016CA00144 23
{¶59} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Absence of Motion in Limine
{¶60} First, appellant argues he received ineffective assistance of counsel
because counsel failed to file a motion in limine “to exclude references regarding anger
management classes [he] attended during his taped statement to police.” Again,
appellant fails to cite to the portion of the record where the error is found. See, App.R.
16(A)(7). This omission is significant because in his brief, appellant refers to the recording
of his statement made to an officer “captured by the Officer’s body cam * * *.” (Brief, 13).
Appellee’s Exhibit 3 is the recording made by Ptl. Bartolet from his point-of-view body
camera; appellant argues he made damaging statements about anger management
classes during this recording, and counsel was ineffective in preventing the recording
from being played for the jury.
{¶61} This argument does not align with events at trial. Appellant actually refers
to appellee’s Exhibit 4, which is the recording of appellant’s statement to Shatzer, which
was played during Shatzer’s testimony. When appellee asked to play the DVD, the trial
court asked whether the DVD had been redacted and defense trial counsel responded he
didn’t object to playing the DVD because it had been redacted. As the recording played,
the prosecutor asked Shatzer to narrate and explain appellant’s statements on the tape.
This conversation then occurred:
Stark County, Case No. 2016CA00144 24
* * * *.
[PROSECUTOR]: What was he saying there?
[Shatzer]: That he didn’t ball up his fist and hit her, that he
has been through anger management and knows he’s not supposed
to—you know, you’re not supposed to hit people with his—with your
fists. But, and my partner actually caught onto this a little bit before
I did, you can see him going like this (indicating).
[Defense trial counsel asks to approach and a bench
conference ensues.]
[DEFENSE TRIAL COUNSEL]: I tried to let the anger
management part slide before I, before I approached, but I hope
we’re not going that route again. They found like a certificate in the
house that said like Men’s Challenge or it—
[PROSECUTOR]: I’m not asking anything about that.
[DEFENSE TRIAL COUNSEL]: Just trying to delay it.
THE COURT: Let me ask you this. He’s giving his
interpretation of the tape. I don’t think he should be doing that. You
can say what he did tell you; do it that way.
* * * *.
[Bench conference ends.]
T. II, 68-69.
{¶62} We have reviewed both DVDs, appellee’s Exhibits 3 and 4, and it is not
apparent to us which portions were redacted, if any. Defense trial counsel seemed to
Stark County, Case No. 2016CA00144 25
reference a conversation in appellee’s Exhibit 3, the Bartolet recording, when officers
entered the apartment to search and briefly discussed what they found inside, including
a certificate of completion of an anger management course. Again, it is not clear from the
record what portion of the video was played. The record indicates the jury heard the
conversation between Bartolet and appellant about appellant’s consent to search the
apartment.
{¶63} Regardless of where the anger-management evidence came from, we
perceive appellant’s argument here to be that defense trial counsel should have filed a
motion in limine to keep it out. The significance of the introduction of two DVDs is that
defense trial counsel made some effort to redact portions viewed by the jury but Shatzer’s
anger-management statement slipped in anyway. Counsel immediately approached and
the trial court shut down the line of inquiry. It is not apparent to us from the record what
anger-management evidence came in, if any, other than Shatzer’s statement above.
{¶64} Additionally, as appellee points out, a motion in limine would have been
merely a preliminary ruling on the admissibility of the evidence anyway. As we have
explained, the record is too unclear as to what evidence was admitted for us to determine
what effect a motion in limine would have had, if any. We are therefore unwilling to find
defense trial counsel was ineffective with respect to the issue of anger management
references
{¶65} We find appellant has failed to demonstrate trial counsel was ineffective
with regard to Shatzer’s statement; nor has he established that the outcome of the trial
would have been different but for the statement.
Failure to Object
Stark County, Case No. 2016CA00144 26
{¶66} Appellant’s second ineffective-assistance claim arises from defense trial
counsel’s failure to object when the prosecutor asked Shatzer, “And did he—did she also
tell you that then he said you’re going to die being my wife?” and Shatzer replied “Yes.”
(T. II, 113). This question was posed on redirect, after it was established on direct and on
cross that appellant had “waited” for Doe for a year and wasn’t going to “wait” anymore,
i.e. to have a sexual relationship with her.
{¶67} We note defense trial counsel objected to other leading questions. T. II, 72.
We are unable to conclude in the context of direct, cross, redirect, and re-cross
examinations that trial counsel's failure to object to this single question fell below an
objective standard of reasonable representation. State v. Ward, 5th Dist. Richland
No.2011–CA–100, 2012–Ohio–4807, ¶ 30; see also, State v. McCoy, 5th Dist. Richland
No.2005–CA–0025, 2006–Ohio–1320; State v. Rogers, 5th Dist. Licking No. 07–CA–152,
2009–Ohio–1956. Evid.R. 611(C) provides, “[l]eading questions should not be used on
the direct examination of a witness except as may be necessary to develop the witness'
testimony.” The failure to object to leading questions does not usually constitute
ineffective assistance of counsel. State v. Jackson, 92 Ohio St.3d 436, 449, 2001–Ohio–
1266, 751 N.E.2d 946. The failure to object is not a per se indicator of ineffective
assistance of counsel because sound trial strategy might well have been not to interrupt.
State v. Gumm, 73 Ohio St.3d 413, 428, 653 N.E.2d 253 (1995). The failure to object to
this question is not ineffective assistance.
{¶68} Appellant has not demonstrated that any claimed deficiencies of trial
counsel created “a reasonable probability that, but for counsel's unprofessional errors,
Stark County, Case No. 2016CA00144 27
the result of the proceeding would have been different.” Jackson, supra, 92 Ohio St.3d at
449, citing Strickland, 466 U.S. at 694.
{¶69} Appellant's third assignment of error is overruled.
IV.
{¶70} In his fourth assignment of error, appellant argues his convictions are
against the manifest weight and sufficiency of the evidence. We disagree.
{¶71} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the 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 prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶72} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Stark County, Case No. 2016CA00144 28
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶73} Appellant argues generally his convictions for rape, felonious assault, and
kidnapping are against the manifest weight and sufficiency of the evidence because Doe
made “inconsistent statements” and the D.N.A. test results were inconclusive.2 He argues
specifically that his conviction for disrupting public services is against the manifest weight
and sufficiency of the evidence because appellee’s evidence does not meet the statutory
elements. We will examine each argument separately.
{¶74} With regard to the rape, felonious assault, and kidnapping offenses,
appellant points to alleged inconsistencies in Doe’s testimony and what she told other
witnesses about her history with appellant; specifically, whether they had a sexual
relationship in the past. We fail to perceive, and appellant does not explain, the relevance
of this information to the convictions. Appellant also points to alleged inconsistencies in
the physical evidence, including the facts that appellant had no injuries to his hands
despite repeatedly punching Doe in the face and items didn’t appear to be out of order in
the tiny apartment. We find the physical evidence compelling, however: appellant had
Doe’s blood on his hands and despite the lack of disarray in the apartment, there was a
significant amount of blood in the living room. The large bloodstains on the couch and
wall, the bloody towel, the broken phone, and the torn fingernail are compelling evidence
corroborating Doe’s statements. We also find appellant’s arguments that Doe herself
2Appellant does not challenge his convictions upon the repeat-violent-offender or sexual-
motivation specifications.
Stark County, Case No. 2016CA00144 29
likely smoked crack that night and appellant did not flee from police to be unpersuasive
in light of the amount of incriminating evidence against him.
{¶75} It is axiomatic that the weight of the evidence and the credibility of the
witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 231,
2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. Upon our review of the record, we find appellant's
convictions for rape, kidnapping, and felonious assault are supported by sufficient
evidence. We further find the trial court did not clearly lose its way and create a manifest
miscarriage of justice requiring that appellant's convictions be reversed and a new trial
ordered. Appellant's convictions upon those offenses are not against the manifest weight
of the evidence.
{¶76} We turn now to appellant’s conviction upon one count of disrupting public
services. R.C. 2909.04(A)(1) states: “No person, purposely by any means or knowingly
by damaging or tampering with any property, shall * * * [i]nterrupt or impair * * * telephone
* * * service; police, fire, or other public service communications; * * * being used for public
service or emergency communications[.]” “Telephone service” includes both the initiation
and receipt of calls. State v. Brown, 97 Ohio App.3d 293, 301, 646 N.E.2d 838 (8th
Dist.1994). The destruction of even a single private telephone is enough to constitute a
violation of R.C. 2909.04. See, State v. Thomas, 2nd Dist. Montgomery No. 19435, 2003–
Ohio–5746. The statute is aimed at conduct which prevents a victim from using public
services to seek emergency assistance. For example, where a defendant grabs the
victim's phone and throws it into a toilet, and then removes the battery from a second
phone, such conduct “falls squarely within the types of behaviors the statute was
Stark County, Case No. 2016CA00144 30
designed to punish: he interrupted telephone use for emergency communications.” State
v. White, 2nd Dist. Montgomery No. 21795, 2007–Ohio–5671, ¶ 15.
{¶77} Appellee’s argument at trial was that appellant broke Doe’s cell phone to
prevent her from “calling for help.” (T. II, 207, 209, 212). Shatzer testified several times
that Doe told him she was attempting to reach her cell phone to call for help but appellant
broke the phone to prevent her from calling police. (T. II, 34, 50-51). Doe’s phone was
broken and police found it in pieces in the apartment where she said it would be.
{¶78} We have reviewed Doe’s testimony regarding the destruction of the phone.
Doe testified she initially picked up the phone to google the singer whose music she and
appellant were listening to; this was the gesture that initiated appellant’s rage and the
ensuing assault. Doe speculated he thought she was calling someone for a ride home.
During the assault appellant told her it was “rude” to be on the phone when she was
spending time with someone. (T. I, 158-159).
{¶79} Further testimony established Doe intended to use the phone to call 911.
She further testified as follows:
* * * *.
[PROSECUTOR]: Did you ever try to get to your phone again
after he threw it the first time?
[DOE]: Yeah, that’s that—the second time that’s when he
start—when he bent the phone and I knew it wasn’t turning on; I had
tried to push the button.
[PROSECUTOR]: And why did you want to get to your
phone?
Stark County, Case No. 2016CA00144 31
[DOE]: To get help. I was scared.
[PROSECUTOR]: So who would you have called if you would
have been able to use your phone?
[Doe]: 911.
* * * *.
[The prosecutor asks Doe to take an object out of an evidence
envelope.]
[PROSECUTOR]: * * * *. Can you tell us what that is?
[DOE]: My phone.
[PROSECUTOR]: Okay. Is that the phone [appellant] broke?
[DOE]: Yes.
[PROSECUTOR]: Okay. And [appellant] did that to your
phone, correct?
[DOE]: Yes.
[PROSECUTOR]: All right. And that was the phone that you
were trying to get to to call 911, correct?
[DOE]: Um-hum.
[PROSECUTOR]: And whenever you attempted to get to that
phone he would hit you or choke you?
[DOE]: Yeah. He was like a maniac when he was trying to
bend it.
[PROSECUTOR]: Okay.
[DOE]: I knew it wasn’t going to work.
Stark County, Case No. 2016CA00144 32
* * * *.
T. I, 169-171.
{¶80} In the instant case, appellant argues his conviction must be reversed
because there is no evidence he broke the phone with the intention of preventing Doe
from calling 911. In State v. Yoakum, we held appellee is not required to prove that an
actual 911 emergency call was in progress when the telephone was disabled by the
defendant throwing it against the wall. 5th Dist. Holmes No. 01 CA005, 2002–Ohio–249,
at *2, citing State v. Brown, 97 Ohio App.3d 293, 301, 646 N.E.2d 838 (8th Dist.1994).
Here, we find sufficient evidence to prove appellant broke the phone to prevent Doe from
calling 911.
{¶81} Appellant further argues his conviction fails because “[h]is subsequent
alleged attempt to break the phone in half did not affect [Doe’s] ability to seek help.” We
note Doe was able to seek help only after fleeing from appellant after tricking him into
leaving the apartment with her to get cigarettes. Doe’s successful escape from appellant
is irrelevant to whether he disrupted public services. “The statute prohibits purposeful or
knowing damaging or tampering with property that interrupts or impairs telephone
service.” Thomas, supra, 2003–Ohio–5746 at ¶ 62. Appellant’s conduct here falls
squarely within that the statute is designed to prevent.
{¶82} Appellee established appellant committed the conduct prohibited by R.C.
2909.04(A)(1): he grabbed Doe’s phone and threw it, breaking it the first time, and then
“bent it back and forth,” succeeding in completely disabling it. Doe was prevented from
calling police or seeking emergency assistance until she could escape from the
apartment. See, State v. Galindo, 5th Dist. Stark No. 2011CA00258, 2012-Ohio-3626.
Stark County, Case No. 2016CA00144 33
{¶83} We have reviewed the record and are satisfied that the jury did not lose its
way in resolving any conflicts in the evidence. Appellant's conviction for one count of
disrupting public services is supported by sufficient evidence in the record and is not
against the manifest weight of the evidence.
{¶84} Appellant’s fourth assignment of error is overruled.
V.
{¶85} In his fifth assignment of error, appellant argues the counts of rape and
kidnapping are allied offenses of similar import which should have merged for sentencing.
We disagree.
{¶86} R.C. 2941.25 states:
(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶87} Appellant argues his convictions of rape and kidnapping should have
merged for sentencing purposes. In State v. Jackson, the Ohio Supreme Court instructed
Ohio courts to utilize the allied-offenses analysis of State v. Ruff, in which the Court
Stark County, Case No. 2016CA00144 34
applied a three-part test to determine whether a defendant can be convicted of multiple
offenses:
As a practical matter, when determining whether offenses are
allied offenses of similar import within the meaning of R.C. 2941.25,
courts must ask three questions when the defendant's conduct
supports multiple offenses: (1) Were the offenses dissimilar in import
or significance? (2) Were they committed separately? and (3) Were
they committed with separate animus or motivation? An affirmative
answer to any of the above will permit separate convictions. The
conduct, the animus, and the import must all be considered.
State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73
N.E.3d 414, ¶ 128, reconsideration denied, 147 Ohio St.3d 1439,
2016-Ohio-7677, 63 N.E.3d 157, and cert. denied, 137 S.Ct. 1586,
197 L.Ed.2d 714 (2017), citing State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, 34 N.E.3d 892, ¶ 31.
{¶88} In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), at the
syllabus, the Ohio Supreme Court established a framework to analyze whether
kidnapping and another offense were committed with a separate animus as to each
pursuant to R.C. 2941.25(B):
(a) Where the restraint or movement of the victim is merely
incidental to a separate underlying crime, there exists no separate
animus sufficient to sustain separate convictions; however, where
the restraint is prolonged, the confinement is secretive, or the
Stark County, Case No. 2016CA00144 35
movement is substantial so as to demonstrate a significance
independent of the other offense, there exists a separate animus as
to each offense sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects
the victim to a substantial increase in risk of harm separate and apart
from that involved in the underlying crime, there exists a separate
animus as to each offense sufficient to support separate convictions.
{¶89} The issue in the instant case, therefore, is whether the restraint was “merely
incidental” to the rape. The sexual assault was five minutes of a prolonged, lengthy
ordeal. Appellant restrained Doe in the apartment for hours, beating her, choking her,
and eventually raping her. Upon our review of the record, we agree with appellee that “*
* * the duration of [appellant’s] restraint of [Doe] subjected her to a substantial increase
in the risk of harm to her that was separate and apart from that involved in the underlying
crime” of rape.
{¶90} We are convinced appellant committed the rape and kidnapping offenses
with separate animus. The offenses, therefore, are not allied offenses of similar import
and the trial court properly sentenced appellant on both.
{¶91} Appellant’s fifth assignment of error is overruled.
CONCLUSION
{¶92} Appellant’s five assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas is affirmed.
Stark County, Case No. 2016CA00144 36
By: Delaney, P.J.,
Baldwin, J. concur and
Hoffman, J., concurs separately
Stark County, Case No. 2016CA00144 37
Hoffman, J., concurring
{¶93} I concur in the majority’s analysis and disposition of Appellant’s second,
third, fourth and fifth assignments of error.
{¶94} I further concur generally with the majority’s analysis of Appellant’s first
assignment of error and do concur in its decision to overrule it. I write separately only
with respect to the one comment by the trial court during cross-examination of Jane Doe
regarding the blows she received at Appellant’s hand. I am troubled by the trial court’s
comment, “Well, that’s kind of hard to determine if you’re getting hit. I mean that’s, that’s
speculative.”
{¶95} The majority finds the trial court’s “…remarks, at issue, when analyzed in
light of the circumstance under which they were made, did not cast an aspersion upon
appellant’s innocence, the burden of proof or any other fundamental constitutional right
of the parties.” (Majority Opinion at ¶46 citing State v. Turner, 5th Dist. Richland No. 2010-
CA-0016, 2010-Ohio-5420, ¶35.)
{¶96} I find this particular comment by the trial court indirectly, if not directly,
suggests to the jury it found Jane Doe’s testimony regarding the physical assault to be
credible. I do not think the trial court did so consciously given its comment “that’s
speculative.”
{¶97} Unlike the majority, I find the trial court’s comment did cast an aspersion
upon Appellant’s innocence as it had the effect, at least indirectly, of vouching for the
victim’s credibility.
Stark County, Case No. 2016CA00144 38
{¶98} Nevertheless, I concur with the majority’s conclusion we cannot conclude
that the outcome of the trial clearly would have been different but for the comments.