State v. Gardner ( 2011 )

[Cite as State v. Gardner, 2011-Ohio-2644.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 10 MA 52
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
FRANK GARDNER, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 09CR1159.
JUDGMENT: Affirmed in part; Reversed and Remanded
in part.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Attorney J. Dean Carro
Appellate Review Office
University of Akron School of Law
Akron, Ohio 44325-2901
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: May 25, 2011
VUKOVICH, J.
¶{1} Defendant-appellant Frank Gardner appeals from his convictions entered
in the Mahoning County Common Pleas Court after a jury trial. Appellant argues that
various convictions should have been merged prior to sentencing. Appellant also
contends that verdicts were contrary to the manifest weight of the evidence because
the victim was not credible; however, the jury could rationally believe the testimony of
the victim.
¶{2} Regarding merger, the trial court did not substantively err in its merger
decisions. Procedurally, however, because the trial court merged the two kidnapping
counts, it should not have entered a sentence on both kidnappings. This procedural
error requires remand for the state to choose which kidnapping it would like the court
to use for purposes of sentencing. Thus, the judgment of the trial court is affirmed in
part and reversed and remanded in part.
STATEMENT OF THE CASE
¶{3} The victim testified to the following. She dated appellant for a year. (Tr.
265). After she broke up with him, he arrived at her house and struck her while she
was holding her daughter; when he tried to strike her again, he ended up hitting her
daughter. (Tr. 239, 241 366). He apparently took her cellular telephone with him
when he left. (Tr. 366, 374). The next day, September 15, 2009, the victim was
driving her normal route to school when appellant pulled alongside her vehicle and
pointed at her repeatedly. When she made a turn, he cut her off by slanting his
vehicle in front of hers. (Tr. 239). He instructed her to get out of her car and declared,
“You ain’t gonna run. You think you’re gonna run.” (Tr. 242).
¶{4} When he moved his vehicle, she proceeded onto the freeway. Upon
exiting, she intended to turn toward the police station but he swerved his vehicle to
thwart her turn. He then waved a gun and screamed for her to go straight. (Tr. 242).
When he thereafter instructed her to turn left, she tricked him into thinking she was
turning with him. She then tried to get to a nearby friend’s house, but he anticipated
this. He cut her off, approached her vehicle, ordered her out, grabbed her arm, and
forced her into his vehicle. (Tr. 245).
¶{5} Appellant repeatedly asked about a person the victim had been seeing
and threatened that he was going to “fuck [her] up.” (Tr. 247, 254, 270). He brought
her to his cousin’s house, which had recently been abandoned. (Tr. 253-254). Upon
exiting his vehicle, she attempted to run, but he stopped her, reiterating, “You pull
some shit like that again, I’m gonna fuck you up.” (Tr. 248). He led her to the front
porch where he slapped her while asking why she was dressed so “cute.” He then
removed her shirt and ordered her to take off her pants. (Tr. 250). When he noticed
that she was not wearing underwear, he called her a “slut” and a “ho.” (Tr. 251).
¶{6} As a neighbor who knew appellant began walking over, appellant told the
victim to put her clothes back on. (Tr. 251-252). Because she had heard arguing, she
asked questions about whether the victim needed help and said she would return after
she got ready for work. (Tr. 252-253). The woman returned but did not alight from her
vehicle. The woman again asked if the victim wanted to leave. As appellant was
pointing at the victim’s back with what she assumed was the gun, the victim said that
she was okay. (Tr. 255-256).
¶{7} When the neighbor drove away, appellant then asked in a crude fashion
if they could have intercourse. (Tr. 256). The victim said no, but appellant pulled her
pants halfway down and told the victim to lie down. (Tr. 257). He then had intercourse
with her and ejaculated inside of her. He eventually brought her to her car and asked
her to take him to a store to have a prescription filled and then to a nursing home to
see his father. (Tr. 258). She testified that she agreed in order to trick him into
thinking she was fine with the situation. (Tr. 349). After she dropped him off, she
proceeded to the police station to file a report. (Tr. 268). When she described the
vehicle appellant had been driving to the police, they realized that this vehicle had
been reported stolen by a carjacking victim.
¶{8} Appellant was indicted on the following six counts, all with firearm
specifications: (1) felonious assault in violation of R.C. 2903.11(A)(2), which entails
knowingly causing or attempting to cause physical harm with a deadly weapon; (2)
kidnapping in violation of R.C. 2905.01(A)(4), which entails purposely removing a
person from the place they are found or restraining the liberty of a person by force,
threat, or deception with purpose to engage in sexual activity; (3) kidnapping in
violation of R.C. 2905.11(A)(1), which involves these same removal or restraint
elements but for the purpose of holding the person for ransom or as a shield or
hostage; (4) kidnapping in violation of R.C. 2905.11(A)(2), which involves those same
removal or restraint elements but for the purpose of facilitating a felony or flight
thereafter; (5) rape in violation of R.C. 2907.02(A)(2), which deals with purposefully
compelling another to submit to sexual conduct by force or threat of force; and (6)
aggravated robbery in violation of R.C. 2911.01(A)(1) for the carjacking.
¶{9} At trial, the victim testified to the facts set forth above. Video recordings
from the store were introduced. On cross-examination, defense counsel asked the
victim why it appeared she was holding her keys as she entered the store even though
she testified that he took her keys away from her. (Tr. 330). She responded that he
must have given them back. (Tr. 342). It was also pointed out that she went to buy
fruit while appellant waited at the pharmacy.
¶{10} The neighbor of the abandoned house testified that she approached the
porch because she heard arguing. The victim was covering her face when she
arrived. The neighbor asked appellant if he had hit the victim. (Tr. 396). Appellant
answered for the victim when the neighbor tried to speak to her. (Tr. 411). When the
neighbor returned, the victim looked upset, but both she and appellant stated that she
was okay. (Tr. 399).
¶{11} A friend of the victim testified that appellant later told her that the victim
was scared that day. (Tr. 420). She described appellant as obsessed with the victim,
noting that he expressed that the victim does not have a choice as to whether she is
going to be with him. (Tr. 420, 423). The victim’s cousin testified that appellant called
her twenty times late at night after the day of the incident. He admitted that he blocked
the victim’s car and revealed that if he cannot have the victim then “no one will.” (Tr.
487-488). He asked the cousin to tell the victim that if she does not call him, he would
“fuck her up.” (Tr. 489).
¶{12} The emergency room physician testified that the victim was depressed
and crying and had redness on the left side of her face. (Tr. 436, 444). A detective
testified that he directed the taking of photographs the day after the incident showing
bruising to the left side of the victim’s face and swelling on the right side. (Tr. 542-
544). A forensic scientist testified that the secretions submitted from the victim’s rape
kit were consistent with the samples obtained from appellant. (Tr. 595-596).
¶{13} The defense filed a motion for an acquittal. The court granted the motion
as to the ransom/shield/hostage kidnapping in count three. The jury returned a not
guilty verdict as to the aggravated robbery in count six. The jury convicted appellant of
the remaining counts (felonious assault, two kidnappings, and rape) and their firearm
specifications.
¶{14} At the sentencing hearing, the state asked for the maximum sentence,
which it calculated as thirty-one years based upon its statement that the maximum
sentences on the kidnapping counts should run concurrently. (Tr. 3-4). Defense
counsel argued that not only should the kidnapping counts merge with each other but
they should also merge with the rape conviction. (Tr. 6).
¶{15} The court sentenced appellant to eight years for felonious assault and
ten years for rape to run consecutive with each other. The court stated that the
kidnapping charges would merge for purposes of sentencing but then imposed a ten-
year sentence on each count to run concurrently with each other and concurrently with
the felonious assault and rape sentences. The firearms specifications were merged
and appellant was sentenced on one specification to three years, for a total of twenty-
one years in prison.
ASSIGNMENT OF ERROR NUMBER ONE
¶{16} Appellant’s first assignment of error provides:
¶{17} “THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED
TO MERGE THE ALLIED OFFENSES OF KIDNAPPING, FELONIOUS ASSAULT
AND RAPE FOR PURPOSES OF SENTENCING, AS REQUIRED BY R.C. 2941.45
[AND THE CONSTITUTION].”
¶{18} Appellant essentially argues here that all counts should merge so that
only one count is remaining. Since trial counsel only asked for the merger of the two
kidnapping counts with each other and the kidnapping with the rape, appellant relies
on the plain error doctrine to present appellate arguments regarding the other possible
combinations of merger. The judicial doctrine of merger is codified as follows:
¶{19} “(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.
¶{20} “(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.” R.C. 2941.25.
¶{21} First, the elements of the offenses are compared. If the elements do not
sufficiently coincide so that the defendant’s conduct constitutes offenses of dissimilar
import1, then the inquiry ends and the defendant can be found guilty and punished for
both crimes as the offenses are of dissimilar import. If the elements of one offense do
correspond to the required degree with the elements of another offense, then the court
proceeds to the second stage, which evaluates whether the offenses were committed
separately or with separate animus. See State v. Logan (1979), 60 Ohio St.2d 126,
130 (defining animus as purpose or immediate motive).
¶{22} In comparing the elements of the offenses under the first step of the
analysis, the Supreme Court previously required that the elements be compared in the
abstract without regard to the facts of the case to determine if the elements of the
offenses correspond to such a degree that the commission of one crime will
necessarily result in the commission of the other. State v. Rance (1999), 85 Ohio
St.3d 632, 636. See, also, State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625,
¶14-15, 23-27 (but modifying Rance so that an exact alignment of the elements or a
strict textual comparison was not required). Thus, the Court previously considered the
defendant's conduct only in the second stage and did not permit consideration of the
defendant’s conduct in comparing the elements. See id. See, also, State v. Jones
1
The Supreme Court skips this first step (or automatically finds the elements aligned) where the
defendant is charged with alternative means of committing an offense under the same code section.
State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶35, 37, 39.
(1997), 78 Ohio St.3d 12, 14 (considering defendant’s conduct in determining separate
animus).
¶{23} However, the Ohio Supreme Court recently overruled Rance. Although
the decision contained two plurality opinions and a minority opinion, a unanimous
Court signed the syllabus and held: “When determining whether two offenses are
allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of
the accused must be considered.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, syllabus. When combining opinions, a majority of the Court found that the
Rance test was contrary to the plain language of R.C. 2941.25, which specifically
instructs the court to view the defendant’s conduct. Id. at ¶41-42 (plurality) 78
(O’Donnell, J., concurring in syllabus and judgment and concurring separately). Not
much else from the various opinions can be considered precedent. See State v.
Bickerstaff, 7th Dist. No. 09JE33, 2011-Ohio-1345, ¶75. Our only new guidance is to
consider the defendant’s conduct and thus the particular facts of each case to
determine whether the offenses are of similar import.
¶{24} We begin with the two kidnapping counts. Appellant proceeds under the
assumption that the court merged these offenses but erred by entering sentence on
each as running the sentences concurrently is not the proper procedure for merger. As
appellant points out, where two offenses must be merged, this must be performed
prior to sentencing so that a sentence is only entered on one offense. State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶17-18 (a defendant may be indicted and
tried for allied offenses of similar import, but may be sentenced on only one of the
allied offenses). Sentencing concurrently on merged counts does not satisfy the
merger doctrine as no sentence at all should be entered on one of the two merged
counts. See id.¶{25} The state does not address this concept but instead sets forth arguments
as to why the two kidnapping offenses need not be merged. The state argues that a
kidnapping to facilitate a felony or flight thereafter and a kidnapping to engage in
sexual activity are not allied offenses of similar import because the elements of one
crime do not correspond to such a degree with the elements of the other crime that the
commission of one will necessarily result in commission of the other. Alternatively, the
state argues that appellant engaged in multiple instances of kidnapping and that the
two types of kidnapping were committed with a separate animus.
¶{26} However, the state’s position below essentially conceded that merger
was appropriate. That is, the state asked for the maximum sentence, which it explicitly
stated was thirty-one years. The state arrived at this number by adding the eight-year
maximum for felonious assault, the ten-year maximum for one kidnapping, the ten-
year maximum for rape, and three years for one of the firearm specifications. Although
the state characterized the kidnapping sentences as running concurrently with each
other, this appears to be a reflection of the common misperception that merger can be
satisfied by running sentences concurrent.
¶{27} Notably, after the state set forth its recommendation, defense counsel
stated, “The case law also apparently seems to allow and provide for not only the two
kidnapping charges but the rape * * * for that to merge as well as an allied offense of
similar import.” (Tr. 6). The state only responded to the argument concerning the rape
merging with the kidnapping, which suggested it agreed that the kidnappings should
be merged with each other. (Tr. 7). By calculating the maximum in the method it did
and by not refuting defense counsel’s belief that the kidnapping counts were conceded
to be merged, the state apparently agreed that the kidnappings should merge.
¶{28} More importantly, the trial court specifically stated that the kidnappings
were merged for purposes of sentencing. (Tr. 10). The imposition of ten years for
each kidnapping and then running them concurrently merely seems to be the court
following the aforementioned misconception that running sentences concurrently
satisfies the merger doctrine. This imposition of concurrent sentences does not erase
the court’s stated sentencing decision that the counts were to be merged. Thus, we
proceed under the position that the trial court merged the kidnappings on the state’s
request2 and that we are thus only reviewing the proper procedure to employ after the
merger, as opposed to the propriety of the merger itself.
¶{29} It thus follows that upon expressly merging the kidnapping counts, the
trial court erroneously imposed sentences on both counts. When two counts are
2
“Under [the invited-error] doctrine, a party is not entitled to take advantage of an error that he
himself invited or induced the court to make.” State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-
Ohio-4849, ¶27.
merged, a sentence can only be entered on one. State v. Whitfield, 124 Ohio St.3d
319, 2010-Ohio-2, ¶17-18. Running the sentences concurrently for two merged counts
is improper. See id. Because a new sentencing entry is required which imposes only
one kidnapping sentence and because we do not know which kidnapping conviction is
to receive the ten-year sentence, this specific sentencing issue must be remanded for
a new sentencing hearing where the state can determine which kidnapping the court
should use for purposes of sentencing. See id. at ¶21-25 (state’s right to elect which
offense should remain for purposes of sentencing on remand of judgment that
erroneously imposed concurrent sentences for merged offenses); State v. Fellows, 7th
Dist. No. 09JE36, 2010-Ohio-2699, ¶58.
¶{30} We turn now to the issue of whether the kidnapping and the rape should
have been merged. The state acknowledges that the elements of kidnapping
correspond to such a degree with forcible rape that the rape could not have been
committed without the commission of a kidnapping. See State v. Powell (1990), 49
Ohio St.3d 255, 262 (implicit in every forcible rape is a kidnapping; such offenses are
allied offenses of similar import). See, also, State v. Parker, 7th Dist. No. 03MA190,
2005-Ohio-4888, ¶24, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845. In
viewing the facts of the case under the new Johnson holding, the prior holdings
dealing with separate animus as to rape during a kidnapping are still relevant.
¶{31} When a kidnapping is committed during another crime, there exists no
separate animus where the restraint or movement of the victim is merely incidental to
the underlying crime. State v. Fears (1999), 86 Ohio St.3d 329, 344, citing Logan, 60
Ohio St.2d 126. The kidnapping must have a significance independence from the rape.
State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, ¶117. “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. Moreover,
where the restraint was prolonged, the confinement was secretive, or the movement
was substantial, a separate animus exists. State v. Lynch, 98 Ohio St.3d 514, 2003-
Ohio-2284, ¶135; Fears, 86 Ohio St.3d at 344, citing Logan, 60 Ohio St.2d at syllabus.
¶{32} “[W]here an individual's immediate motive is to engage in sexual
intercourse, and a so-called ‘standstill’ rape is committed, the perpetrator may be
convicted of either rape or kidnapping, but not both. In contradistinction, an individual
who restrains his intended rape victim for several days prior to perpetrating the rape,
or who transports her out of the state or across the state while intermittently raping
her, may well be considered to have a separate animus as to each of the offenses of
kidnapping and rape, and convictions on multiple counts could reasonably be
sustained.” Logan, 60 Ohio St.2d at 132 (describing the two extremes).
¶{33} In Logan, the Court found no separate animus for kidnapping where the
defendant forced a victim into an alley and down a flight of stairs before raping her.
Logan, 60 Ohio St.2d at 132. The Court found this movement to have no significance
except for facilitation of the offense of rape and determined that it did not present a
substantial increase in harm above that presented by the rape itself. Id. at 135. See,
also, State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, ¶93 (no evidence of
separate animus for kidnapping where the victim was not moved from her bedroom in
which the defendant found her or restrained in any way other than what was
necessary). Cf. State v. Rogers (1985), 17 Ohio St.3d 174, 181-182 (Court found a
separate animus for kidnapping where the defendant moved the victim from an outside
stairway into his apartment and then to his bedroom).
¶{34} Here, the force used was more than necessary, the movement was
substantial, the restraint was prolonged, and the confinement was at least attempted
to be kept secret. Specifically, as for the force used, appellant used a car and a gun to
facilitate the offense and he struck the victim repeatedly. Regarding the asportation,
appellant forced the victim to turn down certain streets while pointing a gun at her, he
forcibly dragged her from her car to his car, he drove her to a different location said to
be a mile away, and he then drove or had her drive him to other locations. Concerning
the prolonged restraint, he drove her to a house that was not nearby, he argued with
her for some time, and he waited twenty to thirty minutes for the neighbor to get ready
for work before engaging in sexual intercourse. Transporting her to an abandoned
house is a consideration in the secretive confinement evaluation. Finally, other
considerations are pertinent such as the fact that he wished to kidnap her for various
reasons besides merely to have sex with her (including his wish to criticize her, warn
her, and interrogate her). Combined, these factors result in a finding that appellant
had a separate animus for the kidnapping and the rape. As such, the court did not err
in refusing to merge the kidnapping with the rape.
¶{35} We now address appellant’s contention that kidnapping should merge
with felonious assault and that felonious assault should merge with rape. Appellant
acknowledges that he did not raise these argument below, and he thus asks only for a
plain error review. Crim.R. 52(B); State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-
4121, ¶39 (recognition of plain error must be done with the utmost of care by the
appellate court and only in exceptional circumstances where it is necessary to avoid a
manifest miscarriage of justice); State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044,
¶62 (plain error can be recognized if there existed an obvious error affecting such
substantial rights that it was outcome determinative). Notably, this is a discretionary
doctrine which may, but need not, be employed if warranted. Hughbanks, 99 Ohio
St.3d 365 at ¶39
¶{36} However, this is not a case where the merger issues were not argued
below. Rather, defense counsel specifically stated that felonious assault would stand
by itself and would not merge. (Sent. Tr. 6). Thus, the error was invited. A party
cannot take advantage of an error which the court was asked to make. State v.
Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶75; State v. Davis, 116 Ohio St.3d 404,
2008-Ohio-2, ¶86 (under the doctrine of invited error, a party cannot attempt to benefit
from an error at trial that he invited).
¶{37} In any event, kidnapping and felonious assault did not have
corresponding elements. Looking at the facts of the case as required by Johnson,
appellant did not necessarily kidnap the victim in order to assault her with a deadly
weapon and each of the assaults pointed out by the state were not committed solely to
kidnap her. Regardless, it is rational to find that appellant had a separate animus for
the kidnapping and the felonious assault.
¶{38} Moreover, the rape and felonious assault did not have corresponding
elements. Assaulting the victim by way of causing or attempting to cause physical
harm with a deadly weapon was at times an act of anger separate and apart from his
act of raping the victim. Regardless, there existed a separate animus for each offense
as appellant had a different purpose or motive to each; part of the reason for the
felonious assault was to express anger and to force her to speak to him whereas the
rape was committed later and was disconnected from the episodes of assault.
¶{39} For all of these reasons, the trial court’s substantive merger decisions
are affirmed. However, the procedural problem of imposing two sentences on the
merged kidnapping offenses and running these sentences concurrently requires the
kidnapping sentence to be reversed and remanded for resentencing where the state
shall choose which subsection it wishes the court to enter a sentence on.
ASSIGNMENT OF ERROR NUMBER TWO
¶{40} Appellant’s second assignment of error contends:
¶{41} APPELLANT’S CONVICTIONS FOR KIDNAPPING, RAPE, AND
FELONIOUS ASSAULT WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, AND THE JURY’S JUDGMENT SHOULD BE REVERSED PURSUANT
TO THIS COURT’S AUTHORITY UNDER SECTION 3(B)(3), ARTICLE IV, OF THE
OHIO CONSTITUTION.”
¶{42} Weight of the evidence deals with the inclination of the greater amount of
credible evidence to support one side of the issue over the other. State v. Thompkins
(1997), 78 Ohio St.3d 380, 387. In reviewing a manifest weight of the evidence
argument, the reviewing court examines 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 trial court clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered. Id. A reversal on weight of the evidence is ordered only in exceptional
circumstances. Id. In fact, where a criminal case has been tried by a jury, only a
unanimous appellate court can reverse on the ground that the verdict was against the
manifest weight of the evidence. Id. at 389, citing Section 3(B)(3), Article IV of the
Ohio Constitution (and noting that the power of the court of appeals is limited in order
to preserve the jury's role with respect to issues surrounding the credibility of
witnesses).
¶{43} In conducting our review, we proceed under the theory that when there
are two fairly reasonable views of the evidence or two conflicting versions of events,
neither of which is unbelievable, it is not our province to choose which one should be
believed. State v. Gore (1999), 131 Ohio App.3d 197, 201. Rather, we defer to the
jury who was best able to weigh the evidence and judge the credibility of witnesses by
viewing the demeanor, voice inflections, and gestures of the witnesses testifying
before it, including appellant himself. See Seasons Coal Co. v. Cleveland (1994), 10
Ohio St.3d 77, 80; State v. DeHass (1967), 10 Ohio St.2d 230, 231.
¶{44} Appellant’s sole argument here is that the victim’s story is not credible.
He urges that since she was in her own vehicle, she would have been able to elude
him if she really wanted to. He notes that this occurred in the middle of the day and
that a neighbor had approached the porch twice, which provided the victim with an
escape if she wanted it. He points to her statement that he took her keys from her at
the store but then a video showed that she had her keys as she entered the store. He
described her explanation (that he must have given her keys back) as essentially
incredible. He notes that she bought fruit while he was getting his prescription filled
and that she could have left the store at any time. He asks us to consider that she
filed the police report because she was mad that he gave her a sexually transmitted
disease prior to the break up and that he had not been treated before their last
encounter (this was the prescription he was ordering).
¶{45} However, the jury heard testimony that appellant had an obsession with
the victim and that he did not think she had a right to reject him. The jury heard that a
neighbor was concerned enough about the situation that she approached to inquire
about the argument and then returned before she went to work. The jury heard the
victim testify at length. The jury heard that the victim feared appellant on the day of
the incident due to his actions the prior day. She stated that he waved a gun at her,
ordered her where to turn, cut her vehicle off multiple times, dragged her from her
vehicle to his, drove her to an abandoned house, grabbed her when she tried to run,
stripped her twice, hit her in the face multiple times, pointed a gun at her back,
repeatedly threatened to “fuck her up,” and forced sexual intercourse upon her with the
gun in the front pocket of his hooded sweatshirt after she said no. The jury saw her
demeanor, voice inflection, eye movements, and gestures. They occupied the best
position to determine whether the story took place as she claimed it did.
¶{46} Although a rational juror could find the victim to lack credibility, a rational
juror could just as easily conclude that her version of events was credible. As such,
the verdict was not contrary to the manifest weight of the evidence. This assignment
of error is overruled.
¶{47} For the foregoing reasons, the judgment of the trial court is affirmed in
part, reversed and remanded in part. Because the trial court merged the two
kidnapping counts, it should not have entered a sentence on both kidnappings. This
procedural error requires remand for the state to choose which kidnapping it would like
the court to use for purposes of sentencing.
Donofrio, J.,
DeGenaro, J.,