State v. Jones , 2021 Ohio 2601 ( 2021 )

[Cite as State v. Jones, 2021-Ohio-2601.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO, :
: Case Nos. 20CA2, 20CA3, 20CA4
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
JEFFERY W. JONES, :
: RELEASED: 07/26/2021
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Kathryn Cornelius-Blume, Lancaster, Ohio, for Appellant.
Ryan R. Black, Hocking County Prosecuting Attorney, and Ryan W. Stickel,
Assistant Hocking County Prosecutor, Logan, Ohio, for Appellee.
_____________________________________________________________
Wilkin, J.
{¶1} This is a consolidated appeal from three Hocking County Court of
Common Pleas judgments memorializing jury verdicts that found appellant,
Jeffery W. Jones, guilty of multiple criminal offenses, and the accompanying
entries that sentenced him to an aggregate prison term of 20 to 28 ½ years.
{¶2} In case no. 20CA2, the trial court imposed a 12-month prison
sentence for aggravated possession of drugs to be served concurrent to the
prison sentences in case nos. 20CA3 and 20CA4. Appellant asserts a single
assignment of error in this case: appellant’s conviction for aggravated possession
of drugs is against the manifest weight of the evidence.
{¶3} In case no. 20CA3, the trial court imposed a 12-month prison
sentence for breaking and entering to be served consecutive to the prison
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 2
sentence in case no. 20CA4. Appellant has not asserted any assignments of
error in this case.
{¶4} In case no. 20CA4, the trial court imposed a 19 to 28 ½ year prison
sentence for kidnapping and attempted rape to be served consecutive to the
1-year prison sentence in case no. 20CA3, for an aggregate prison term of 20 to
28 ½ years. Appellant asserts five assignments of error in this case: (1) the trial
court violated appellant’s Fifth Amendment rights when it failed to merge
appellant’s attempted rape and kidnapping convictions, (2) there was insufficient
evidence presented at trial to convict appellant of kidnapping, (3) appellant’s
convictions for attempted rape, kidnapping, and abduction were against the
manifest weight of the evidence presented at trial, (4) the trial court abused its
discretion when it excluded evidence to impeach the alleged victim, and (5) the
trial court erred as a matter of law, whereas appellant’s sentence was contrary to
law.
{¶5} Having reviewed the record, appellant’s arguments, and the
applicable law, in case no. 20CA2, we overrule appellant’s sole assignment of
error. In case no. 20CA4, we sustain appellant’s first assignment of error and
remand for resentencing, overrule his next three assignments of error, and
decline to rule on his fifth assignment of error because it has been rendered moot
by our decision sustaining appellant’s first assignment. Therefore, we affirm in
part, and reverse in part, the trial court’s judgment entries herein, and remand
this cause for the trial court to merge appellant’s convictions for attempted rape
and kidnapping and to resentence appellant accordingly.
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 3
{¶6} We will address appellant’s appeal by case number, starting with
case no. 20CA2 and then case no. 20CA4.
1. Case No. 20CA2
BACKGROUND
{¶7} The state charged appellant with aggravated possession of drugs
(Methamphetamine) in violation of R.C. 2925.11(A) & (C)(1)(a), a fifth-degree
felony. During appellant’s trial, Officer Scott Mingus, of the Logan Police
Department, testified that on the evening of December 11, 2018, he stopped a
blue Pontiac because its license plate indicated that it belonged to a silver
Honda. The stop was recorded on both the officer’s cruiser cameras and his
body camera. There were four individuals in the car. Appellant was sitting in the
right rear passenger seat. Mingus learned that the driver had an outstanding
warrant, as did appellant. Mingus called for backup. He stated that when Officer
Alford arrived, he informed the occupants of the vehicle that a drug-detecting
canine was going to circle the vehicle. Mingus testified that the canine “indicated
on the right rear passenger door.” The officers removed the driver, Jeremy
Haybron, and appellant from the vehicle. Mingus did a pat-down search of
Haybron for weapons, and then placed him in the back seat of his cruiser.
Officer Mingus’ body camera recorded this conversation after appellant was out
of the vehicle:
Officer Mingus: What’s this, a flashlight?
Appellant: Flashlight. In [the vehicle] is drug paraphernalia in that blue
case. It is mine.
Officer Mingus: Okay. The blue case has drug paraphernalia and it is
yours?
Appellant: It is mine.
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 4
***
Officer Mingus: Go ahead and just put your hands behind your back.
Appellant: All right.
***
Officer Mingus: Here’s what I want you to do. Turn – turn your wrists like
you are praying. I think it will be more comfortable that way. Okay. What
just fell out of your pocket there, partner?
Appellant: Out of my pocket? There’s nothing in my pocket.
Officer Mingus: No, it just fell because I got it on camera so let’s not – it’s
not the time to lie. What’s in the pink baggie?
Appellant: Ice.1
Officer Mingus: Ice?
Appellant: Yeah. It didn’t fall out of my pocket, though, but that’s what it
looks like.
Officer Mingus: Okay.
Appellant: I – I didn’t have – I got holes in my pockets.
After he finished handcuffing appellant, Mingus picked up the pink baggie, and
placed appellant in the back seat of his cruiser with Haybron.
{¶8} The video from the rear-facing camera in Officer Mingus’ cruiser was
then played for the jury, which recorded the appellant and Haybron having the
following conversation:
Appellant: Fucking fell out of my jacket. I couldn’t get it stopped. Fuck.
Did they find yours?
Haybron: Don’t say anything here.
Appellant: Man, being recorded.
ASSIGNMENT OF ERROR
APPELLANT’S CONVICTION FOR AGGRAVATED POSSESSION OF
DRUGS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
{¶9} Appellant alleges that his conviction for aggravated possession of
drugs was against the manifest weight of the evidence because the state did not
prove that he possessed the methamphetamine found in the pink baggie.
1
“ ’Ice’ means crystal methamphetamine.” State v. Anderson, 4th Dist. Lawrence No. 17CA6, 2018-Ohio-2013, ¶ 11.
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 5
Although the officers were operating body cameras as well as a dash camera on
a cruiser, there was no video of appellant dropping the pink baggie. Appellant
claims that other passengers were less than truthful regarding their ownership of
illegal substances found in the car. He states that he was “honest” in admitting
that a blue bag of drug paraphernalia inside the vehicle was his; therefore, his
statement that the pink baggie was not his should be interpreted truthfully as
well. Appellant also cites the fact that he had various holes in the pockets of his
pants and thus could not have possessed the baggie.
{¶10} In response, the state argues that the officer’s drug-detecting canine
indicated that drugs were present outside of the rear passenger door, which is
where appellant was seated. Officer Mingus testified that when he was patting
down appellant he heard something smack the ground and saw a pink baggie
that was not there previously and it contained methamphetamine. Finally, the
state asserts that appellant admitted that he dropped the baggie that Mingus had
recovered.
Law and Analysis
{¶11} “ ‘When an appellate court considers a claim that a conviction is
against the manifest weight of the evidence, the court must dutifully examine the
entire record, weigh the evidence, and consider the credibility of witnesses.’ ”
State v. Griffith, 4th Dist. Pickaway No. 17CA4, 2017-Ohio-8855, ¶ 26, quoting
State v. Topping, 4th Dist. Lawrence No. 11CA6, 2012-Ohio-5617, ¶ 60. “ ‘The
reviewing court must bear in mind, however, that credibility generally is an issue
for the trier of fact to resolve.’ ” Id., quoting State v. Issa, 93 Ohio St.3d 49, 67,
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 6
752 N.E.2d 904 (2001). A “ ‘court may reverse the judgment of conviction only if
it appears that the fact-finder, when resolving the conflicts in evidence, clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’ ” Id., quoting Issa at 67. “ ‘A
reviewing court should find a conviction against the manifest weight of the
evidence only in the exceptional case in which the evidence weighs heavily
against the conviction.’ ” Id., quoting Issa at 61.
{¶12} Appellant was convicted of aggravated possession of drugs in
violation of R.C. 2925.11(A), which states: “No person shall knowingly obtain,
possess, or use a controlled substance or a controlled substance analog.”
Possession is defined as “having control over a thing or substances, but may not
be inferred solely from mere access to the thing or substance through ownership
or occupation of the premises upon which the thing is found.” R.C. 2925.01(K).
{¶13} The evidence shows that a drug-detecting canine indicated the
presence of drugs outside the right rear passenger door of the vehicle where
appellant was sitting. Further, based on Officer Mingus’ testimony, as well the
audio from his body and cruiser cameras, it is reasonable to infer that appellant
dropped the pink baggie that contained methamphetamine while being searched.
Finally, it appears that appellant admitted the baggie was his when he told
Haybron, “fell out of my jacket. I couldn’t get it stopped. * * * Did they find
yours?”
{¶14} Appellant alleges that he could not have possessed the baggie
because he had holes in his pockets. However, having holes in his pockets may
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 7
be the reason why the baggie dropped to the ground during the pat-down search.
Furthermore, the mere fact that appellant was “honest” regarding ownership of
drug paraphernalia is not necessarily indicative of whether he would be honest in
also admitting he possessed methamphetamine, which is a more serious
offense.
{¶15} Having examined the entire record, weighed the evidence, and
considered the credibility of witnesses, we conclude that this is not the
exceptional case in which the evidence weighs heavily against conviction.
Instead, we find a significant amount of evidence supports the jury’s conclusion
that appellant did possess the pink baggie of methamphetamine before it was
dropped onto the ground thereby supporting his conviction for aggravated
possession of drugs. Therefore, because appellant’s conviction is not against
the manifest weight of the evidence, we overrule his sole assignment of error.
2. Case No. 20CA4
BACKGROUND
{¶16} On August 26, 2019, the state charged appellant with five criminal
counts: (1) attempted rape in violation of R.C. 2923.02, 2907.02(A)(2) and (B), a
second-degree felony; (2) attempted sexual battery in violation R.C. 2923.02,
2907.03(A)(1) and (B), a fourth-degree felony; (3) attempted gross sexual
imposition in violation of R.C. 2923.02, 2907.05(A)(1) and (C)(1), a fifth-degree
felony; (4) kidnapping in violation of R.C. 2905.01(A)(2) and (C)(1), a first-degree
felony; and (5) abduction in violation of R.C. 2905.02(B) and (C), a third-degree
felony. The case went to trial and the state presented several witnesses.
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 8
{¶17} The state’s first witness was a sexual assault nurse who examined
the victim C.E. The nurse testified that C.E. told her she heard a noise in the
basement of her apartment complex and when C.E. investigated, she
encountered appellant who demanded she perform fellatio. The nurse further
testified that when C.E. refused, appellant slapped her in the face several times.
The nurse explained to the jury that C.E. said she managed to get out of her
basement and ring a neighbor’s doorbell, but while waiting for an answer,
appellant pinned her against the stairs and ejaculated on her head. The nurse
took samples from C.E., including her hair to check for DNA. The nurse
indicated that she did not see any physical injuries but she did notice red welts
on C.E.’s face, which she noted as hives. She further noted that the doctor who
examined C.E. issued a report that described her face as having “redness and
edema.” The nurse also stated that in her opinion C.E.’s “mental capabilities of
what was happening to her [while in the basement] were slowed down.”
{¶18} The state’s next witness was C.E. She testified that she heard a
noise in the basement of her apartment complex and she discovered her friend at
the time, S.B., and appellant. C.E. stated that after S.B. went to the bathroom,
appellant told her to “suck his dick” three times, and if she refused he would “hit”
her. She refused appellant’s demand, and S.B. returned from the bathroom and
stopped appellant from slapping C.E. C.E. went on to say that she “got away
from [appellant] and was starting to go up the steps, he followed me, pinned my
knees together where I couldn’t move and then he proceeded to ejaculate on me”
and also “touched my breast.” C.E. called 9-1-1 to report the assault, but when
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 9
police arrived she did not initially mention that the assault was sexual in nature
because she was embarrassed.
{¶19} On cross-examination, C.E. confirmed that after denying appellant’s
initial demand for fellatio, she walked over to the stairs and sat down. When
asked why she did not just continue up the stairs after appellant’s assault, C.E.
said she was “freaked out.” She further stated that it wasn’t until police informed
her appellant could potentially return to the apartment that she told officers his
assault was sexual in nature.
{¶20} Next to testify was Officer Stump, who responded to C.E.’s 9-1-1
call. Stump testified that the report C.E. filled out indicated appellant “hit” her.
However, he could not recall what word she used in describing how appellant
struck her in the face, but did describe her cheek as being red. Stump stated
that when he arrived it seemed unusual that C.E. was standing near appellant,
but he also said that it appeared she did not completely understand what was
going on at the time. When asked how C.E. “presented” to him, Stump testified
“she was a little unsure of herself. Kind of slow. I don’t know if she just wasn’t
processing what was going on very fast.”
{¶21} Next to testify was Officer Burchfield, who also responded to
appellant’s call. Burchfield testified that C.E. said appellant punched or hit her.
Burchfield admitted that he used the word “punched” in his report; however, he
also stated that he was not sure whether he heard C.E. actually use the word
“punch.” But he did testify that C.E. said her face hurt and she went to the
hospital.
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 10
{¶22} The state’s next witness was Timothy Augusback, a forensic
scientist for the Ohio Bureau of Criminal Investigation. Augusback testified that a
“head-hair-comb” sample taken from C.E. tested positive for appellant’s DNA.
{¶23} The jury convicted appellant of attempted rape, attempted sexual
battery, kidnapping, and abduction, but found appellant not guilty of attempted
gross sexual imposition. At sentencing, the trial court merged the attempted
sexual battery into attempted rape and abduction, and merged the abduction into
kidnapping. The court then sentenced appellant for both kidnapping and
attempted rape for an aggregate prison term of 19 to 28 ½ years.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT VIOLATED APPELLANT’S FIFTH AMENDMENT
RIGHTS WHEN IT FAILED TO MERGE APPELLANT’S ATTEMPTED
RAPE AND KIDNAPPING CONVICTIONS
II. THERE WAS INSUFFICIENT EVIDENCE PRESENTED AT TRIAL TO
CONVICT APPELLANT OF KIDNAPPING
III. APPELLANT’S CONVICTIONS FOR ATTEMPTED RAPE, KIDNAPPING,
AND ABDUCTION WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE PRESENTED AT TRIAL
IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT EXCLUDED
EVIDENCE TO IMPEACH THE ALLEGED VICTIM
V. THE TRIAL COURT ERRED AS A MATTER OF LAW, WHEREAS
APPELLANT’S SENTENCE WAS CONTRARY TO LAW
ASSIGNMENT OF ERROR I
{¶24} Appellant argues that the trial court erred in not merging his
attempted rape and kidnapping convictions under R.C. 2941.25. Appellant
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 11
claims that when a kidnapping is committed during the commission of another
crime they are committed with the same animus if the restraint or movement of
the victim is merely incidental to the underlying offense. In this instance,
appellant asserts, because the kidnapping was committed during the attempted
rape, they are allied offenses of similar import and must merge, which means
that he can only be sentenced for one offense or the other, but not both.
{¶25} In response, the state claims that the kidnapping is a separate
incident from the attempted rape. Therefore, the state argues that the
kidnapping and attempted rape were committed with a separate animus and the
kidnapping in the stairs caused an increased chance of harm to C.E.
Accordingly, the state maintains that the trial court did not err in failing to merge
appellant’s attempted rape and kidnapping convictions.
Law and Analysis
{¶26} “R.C. 2941.25 ‘codifies the protections of the Double Jeopardy
Clause of the Fifth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution, which prohibits multiple punishments for the
same offense.’ ” State v. Osman, 4th Dist. Athens No. 13CA22, 2014-Ohio-294,
¶ 17, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 23. 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
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 12
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.
“By its enactment of R.C. 2941.25(A), the General Assembly has clearly
expressed its intention to prohibit multiple punishments for allied offenses of
similar import.” State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d
182, ¶ 8, citing State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999),
paragraph three of the syllabus, overruled on other grounds, 128 Ohio St.3d 153,
942 N.E.2d 1062. “By contrast, the General Assembly exercised its power to
permit multiple punishments by enacting R.C. 2941.25(B).” Id. at ¶ 9, citing State
v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 17.
{¶27} “An appellate court should apply a de novo standard of review in
reviewing a trial court's R.C. 2941.25 merger determination.” State v. Williams,
134 Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. A de novo
standard of review means we “ ‘ “independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” ’ ” State v. Gillman, 2015-Ohio-4421, 46 N.E.3d 130, ¶ 13 (4th Dist.),
quoting State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E.2d
1245, ¶ 26, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8.
{¶28} The Ohio Supreme Court has set out a tripartite test to determine
when multiple criminal offenses must merge under R.C. 2941.25 in State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. In making a merger
determination under Ruff “within the meaning of R.C. 2941.25, courts must
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 13
evaluate three separate factors - the conduct, the animus, and the import.” Id. at
paragraph one of the syllabus. The tripartite test is as follows:
Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses [i.e. they
do not merge] if any one of the following is true: (1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows
that the offenses were committed separately, or (3) the conduct
shows that the offenses were committed with separate animus.
(Emphasis added.)
Id. at paragraph three of the syllabus.
Ruff explains that “[t]wo or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses
involving separate victims or if the harm that results from each offense is
separate and identifiable.” Id. at ¶ 23.
{¶29} In 1979, years before Ruff was decided, the Supreme Court
addressed the issue of merger of kidnapping and rape convictions in State v.
Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979). The Court recognized that
“implicit within every forcible rape R.C. 2907.02(A)(1) is a kidnapping.” Id. at
130. In determining whether the rape and kidnapping convictions should merge,
the court stated:
The primary issue * * * is whether the restraint or movement of
the victim is merely incidental to a separate underlying crime or,
instead, whether it has a significance independent of the other
offense. In the instant case, the restraint and movement of the
victim had no significance apart from facilitating the rape. The
detention was brief, the movement was slight, and the victim was
released immediately following the commission of the rape. In
such circumstances, we cannot say that appellant had a
separate animus to commit kidnapping.
Id. at 135.
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 14
The Court adopted the following guidelines for determining when a kidnapping
conviction and another similar offense are committed should merge:
(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 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.
Id. at syllabus.
{¶30} “Ohio courts still apply the test found in [Logan] to determine
whether rape and kidnapping convictions merge for sentencing even though this
test predates Ruff.” State v. Thacker, 4th Dist. Lawrence No. 18CA21, 2020-
Ohio-4620, ¶ 125, appeal not accepted, 161 Ohio St. 3d 1408, 2021-Ohio-106,
161 N.E.3d 687. Consequently, this Court adopted the “guidelines” set out in
Logan to determine when kidnapping and similar offenses - like rape - are
committed with the same animus and must merge. Id., quoting Logan at
syllabus. Therefore, kidnapping and rape convictions merge if the restraint of the
victim is merely incidental to the rape, but do not merge if the restraint subjected
the victim to a harm beyond that of the rape.
{¶31} The evidence indicates that while in the basement of the apartment
complex, appellant threatened he would hit C.E. if she did not perform fellatio,
and when she refused, he struck her several times. C.E., on her own volition,
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 15
then immediately proceeded to the stairs that lead out of the basement, and sat
down. However, appellant followed C.E., pinned her in the stairs, then
masturbated and ejaculated on her head. The evidence also shows that while
pinning her in the stairs, appellant again demanded she perform fellatio while
also threatening to hit her.
{¶32} We find that this evidence indicates that the appellant pinned C.E.
by force in the stairs thereby restraining her liberty, and demanded C.E. perform
fellatio by threat of force. We further find that the kidnapping involved only a
relatively brief restraint with no asportation, was committed to facilitate
appellant’s attempt to rape C.E., and did not subject C.E. to additional danger
aside from the rape. Therefore, under Logan, the offenses must merge.
{¶33} We reach the same result in applying the tripartite test from Ruff.
First, the kidnapping and attempted rape convictions involved a single victim and
the harm caused by the two offenses was not separate and identifiable, so the
offenses are not dissimilar. Second, both offenses were also committed at the
same time, not separately. Lastly, the kidnapping was committed merely to
facilitate the attempted rape, so the conduct did not show that these offenses
were committed with a separate animus. Therefore, under Ruff, the offenses
must merge.
{¶34} In conclusion, we find that under both Logan and Ruff, appellant’s
kidnapping and attempted rape convictions must merge, and the trial court erred
in failing to do so. For this reason, we sustain appellant’s first assignment of
error. Accordingly, we reverse the trial court's imposition of separate sentences
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 16
on these counts and remand this matter to the trial court to merge the attempted
rape and kidnapping convictions for purposes of sentencing.
ASSIGNMENT OF ERROR II
{¶35} Appellant alleges that there is insufficient evidence that the victim
was “restrained” to support his kidnapping conviction. Appellant argues that
there were two incidents of potential restraint. The first was when he slapped
C.E. after she refused to perform fellatio, and the second was when C.E. was on
the stairs. But he alleges that under both scenarios, C.E. was not restrained
because she testified that she was free to leave at any time. As a result,
appellant maintains that there is insufficient evidence to support his kidnapping
conviction.
{¶36} In response, the state claims that when appellant pinned C.E.’s
knees on the stairs that was evidence of restraint to support the kidnapping
conviction. Thus, the state argues that there is sufficient evidence of restraint to
support appellant’s kidnapping conviction.
Law and Analysis
{¶37} “A claim of insufficient evidence * * * raises the question of whether
the evidence is legally sufficient to support the verdict as a matter of law.” State
v. Benge, 4th Dist. Adams No. 20CA1112, 2021-Ohio-152, ¶ 25, citing State v.
Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 13 (4th Dist.); State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The standard of review of a
sufficiency of the evidence claim is “after viewing the probative evidence and
inferences reasonably drawn therefrom in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential elements
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 17
of the offense beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio
St.3d 259, 273, 574 N.E.2d 492 (1991). “A reviewing court will not overturn a
conviction on a sufficiency-of-the-evidence claim unless reasonable minds could
not reach the conclusion that the trier of fact did.” Id. at ¶ 26, citing State v.
Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 326 (2001).
{¶38} Appellant was convicted of kidnapping under R.C. 2905.01(A)(2),
which in pertinent part requires proof that “by force, threat, or deception,” the
offender did “restrain the liberty of [the victim] * * * [t]o facilitate the commission of
any felony or flight thereafter.” (Emphasis added). The Ohio Revised Code does
not define “restraint,” but the Tenth District Court of Appeals has stated that
“[r]estraining an individual's liberty means limiting or restraining their freedom of
movement.” State v. Williams, 2017-Ohio-5598, 93 N.E.3d 449, ¶ 19 (10th Dist.)
{¶39} The evidence indicates that appellant used force by pinning C.E.’s
knees together on the stairs, which restrained her liberty for the purpose of
committing attempted rape, which is a felony. In viewing this evidence in a light
most favorable to the prosecution, we find that any rational trier of fact could
have found appellant guilty of kidnapping. Therefore, we overrule appellant’s
second assignment of error.
ASSIGNMENT OF ERROR III
{¶40} Appellant’s third assignment of error alleges that his kidnapping,
attempted rape, and abduction convictions are against the manifest weight of the
evidence. Specifically, appellant argues that there is insufficient evidence that he
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 18
used “force” to support his kidnapping or abduction convictions, or used “force” or
“threat of force” to support his attempted rape conviction. It appears that
appellant claims that a slap is insufficient to constitute force for purposes of these
offenses. He maintains that slapping C.E. did not restrain her liberty and she
testified that she was free to leave. Appellant also asserts that there was
insufficient evidence to prove that he restrained C.E. for purposes of his
kidnapping or abduction convictions.
{¶41} In response, the state argues that while there is conflicting testimony
as to how the force was applied (punch, hit, slap), the testimony was sufficient for
the jury to conclude that appellant used force in committing the attempted rape,
kidnapping, and abduction. The state also asserts that appellant’s act of pinning
C.E. in the stairs restrained her liberty for purposes of abduction and kidnapping.
Therefore, the state argues that these convictions are not against the manifest
weight of the evidence.
Law and Analysis
{¶42} Because we set forth the manifest weight of the evidence standard
of review earlier in this decision, we will not repeat the standard or accompanying
citations here. Appellant challenges the manifest weight of evidence regarding
his kidnapping, abduction, and attempted rape convictions. We first note that the
trial court merged abduction with the kidnapping conviction. Therefore, if
sufficient evidence supports appellant’s kidnapping conviction and if the
conviction is not against the manifest weight of the evidence, then an erroneous
abduction finding of guilty by the jury would be harmless. See State v.
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 19
Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 21, citing State v.
Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990). As such, we will review
appellant’s evidentiary challenge to abduction only if we find that appellant’s
kidnapping conviction is against the manifest weight of the evidence.
{¶43} The offense of kidnapping required the state to prove the appellant
used “force” “by any means” to “restrain the liberty of the [victim]” for the purpose
of committing a felony. R.C. 2905.01(A)(2). The offense of attempted rape
requires the state to prove that the offender attempted to “engage in sexual
conduct with another when the offender purposely compels the other person to
submit by force or threat of force.” R.C. 2903.02 and R.C. 2907.02(A)(2). R.C.
2901.01(A)(1) defines “force” as “any violence, compulsion, or constraint
physically exerted by any means upon or against a person or thing.”
{¶44} C.E. testified that shortly after appellant initially demanded she
perform fellatio and struck her for refusing to comply, he “pinned” her legs in the
stairs, and again demanded she perform fellatio. We find that the jury could have
reasonably construed this evidence as indicating that appellant used “force” by
physically constraining C.E.’s liberty for purposes of finding appellant guilty of
kidnapping. We further find the jury could have reasonably found appellant’s
threat to slap, and then actually slapping C.E., was “force” because it was
“violence” that he used in an attempt to compel her to perform fellatio, which is
attempted rape.
{¶45} Nevertheless, appellant cites State v. Pierce, 3rd Dist. Seneca No.
13-87-27, 1989 WL 86258 (Aug. 3, 1989) apparently for the proposition that a
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 20
slap is insufficient to constitute force for purposes of his convictions. [Appellant’s
brief p. 19] In Pierce, the court of appeals affirmed an adult offender’s rape
conviction of a 13-year old child, reasoning that the appellant’s threat to slap the
child was sufficient to constitute force. (Emphasis added.) Id. at *2. And, the
court in Pierce further stated that “[a] slap in the face is, in any event, ‘violence,
compulsion, or constraint physically exerted by any means * * * against a
person.’ ” Id. at *2. Pierce simply does not support appellant’s argument that a
slap is insufficient to constitute a use of force for purposes of R.C. 2901.01(A)(1).
{¶46} Because we find that the jury did not lose its way in finding
appellant guilty of kidnapping and attempted rape so as to create a manifest
injustice requiring a reversal of his convictions, we hold that appellant’s
convictions are not against the manifest weight of the evidence. Accordingly, we
overrule appellant’s third assignment of error.
ASSIGNMENT OF ERROR IV
{¶47} In his fourth assignment of error, appellant argues that the trial court
violated his due process rights when it precluded admission of Officer
Burchfield’s police report. Appellant claims that the trial court abused its
discretion in refusing to admit Officer Burchfield’s police report to impeach C.E.’s
testimony under Evid.R. 613(B). Appellant asserts that Burchfield’s police report,
which indicated that appellant “punched” C.E., would have impeached C.E.’s
testimony that appellant “slapped” her.
{¶48} The state argues that the report does not impeach C.E.’s testimony
because the report did not include a direct statement from C.E. The report was a
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 21
recitation of what Burchfield recalled C.E. saying. Burchfield testified about his
report and nowhere in his testimony does he claim C.E. used the word “punch.”
Therefore, the state contends that the trial court did not abuse its discretion in
denying appellant from using the report to impeach C.E.
Law and Analysis
{¶49} “A trial court has broad discretion in the admission or exclusion of
evidence, and so long as such discretion is exercised in line with the rules of
procedure and evidence, its judgment will not be reversed absent a clear
showing of an abuse of discretion with attendant material prejudice to defendant.”
State v. Ward, 4th Dist. Gallia No. 3CA2, 2003-Ohio-5650, ¶ 32, citing Rigby v.
Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). “[T]rial witnesses
may be impeached pursuant to Evid.R. 613(B) through the use of their own prior
inconsistent statements.” (Emphasis added.) State v. Byrd, 4th Dist. Scioto No.
96CA2427, 1998 WL 2403, *2 (Jan. 6, 1998), citing State v. Hill, 75 Ohio St.3d
195, 207, 661 N.E.2d 1068 (1996).
{¶50} Officer Burchfield’s police report does state that appellant “punched”
C.E. And C.E. testified that she told officers that appellant “hit” her with “his
palm,” but did not “punch” her. She further testified that to the extent an officer
indicated that appellant “punched” her, he was wrong. However, Officer
Burchfield could not verify that his use of the word “punched” in his report was
directly attributable to C.E. Consequently, it does not appear that the report
contains a prior statement from C.E. that conflicted with her trial testimony.
Therefore, we find that the trial court’s exclusion of the police report from being
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 22
used to impeach C.E.’s testimony was not unreasonable, arbitrary, or
unconscionable. Accordingly, because we find that the trial court did not abuse
its discretion in precluding admission of the police report, we overrule appellant’s
fourth assignment of error.
ASSIGNMENT OF ERROR V
{¶51} Finally, appellant argues that his aggregate sentence of a 20-year
minimum and 28 ½ years maximum in prison, received in case nos. 20CA3, and
20CA4, violates R.C. 2929.144 (The Reagan Tokes Law). The state agrees that
appellant’s sentencing does not conform with the requirements of R.C. 2929.144.
However, appellant admits that if we find that his kidnapping and attempted rape
convictions merge, as we have held, this assignment of error becomes moot
because the trial court will need to resentence him. Therefore, we decline to
address appellant’s fifth assignment of error as it has become moot.
CONCLUSION
{¶52} In case no. 20CA2, we overrule appellant’s sole assignment of
error. In case no. 20CA4, we sustain appellant’s first assignment of error,
reversing his sentences for kidnapping and attempted rape, and remand the
matter for the trial court to merge those convictions and re-sentence appellant
accordingly. On remand, the state will have the option of deciding whether the
trial court sentences appellant for kidnapping or attempted rape. Additionally, we
overrule appellant’s second, third, and fourth assignments of error in case no.
20CA4, and we decline to address his fifth assignment of error, which is moot.
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 23
JUDGMENTS AFFIRMED IN PART AND REVERSED IN PART AND CAUSE
REMANDED FOR MERGER AND RESENTENCING.
Hocking App. Nos. 20CA2, 20CA3, and 20CA4 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART AND
REVERSED IN PART AND CAUSE REMANDED FOR MERGER AND
RESENTENCING and costs be split equally between the parties.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Hocking County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to
expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Kristy S. WIlkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.