[Cite as State v. Yoder,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : -vs- : : Case No. 2011-CA-00027 SAM YODER : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2010CR1447

JUDGMENT: Affirmed in part, Reversed in part & Remanded

DATE OF JUDGMENT ENTRY: September 26, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN FERRERO DEREK J. LOWRY STARK COUNTY PROSECUTOR Crawford, Lowry & Associates 110 Central Plaza S., Ste. 510 116 Cleveland Ave. N.W., Ste. 800 Canton, OH 44702 Canton, OH 44702 [Cite as State v. Yoder,

.]

Gwin, P.J.

{1} Defendant-appellant Sam Yoder appeals from his convictions and

sentences in the Stark County Court of Common Pleas on one count of Rape with a

sexually violent predator specification, a sexual motivation specification and repeat

violent offender specification, one count of Kidnapping with a sexually violent predator

specification, a sexual motivation specification and repeat violent offender specification

and one count of Assault. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{2} On the evening of September 17, 2010, Amanda Baker was walking down

Fulton Street in Canton, Ohio, with the intent to engage in prostitution. Ms. Baker

walked down 7th and Brown Street in Canton and saw a red truck coming down the

road. She waved and the driver, appellant, pulled over. Ms. Baker got in the truck.

{3} Appellant said he wanted to have sex. Ms. Baker said that would be alright

if appellant agreed to use a condom. Appellant said he does not use condoms. Ms.

Baker advised appellant that if there was no condom, there would be no sex. Appellant

then agreed to Ms. Baker's terms, and drove to a Sunoco station to buy a condom.

Appellant purchased the condom and gave Ms. Baker thirty dollars, the agreed upon

price for the transaction.

{4} Appellant then drove to the southwest side of Canton and parked behind

some warehouse buildings. Ms. Baker removed her hoodie, underwear and shoes and

lay down on the bench seat of the truck. Appellant tried to put on the condom, but was

not fully erect. He attempted to engage in vaginal intercourse with Ms. Baker, but again, Stark County, Case No. 2011-CA-00027 3

was not fully erect. He told Ms. Baker he couldn't feel anything. Ms. Baker asked

appellant what he wanted to do since he couldn't feel anything.

{5} Appellant asked Ms. Baker "Do you like to fuck?" Ms. Baker said yes,

thinking the answer would arouse appellant. But instead, appellant grabbed Ms. Baker

by the throat squeezed and said "well then, you're going to fuck without a condom."

Appellant told Ms. Baker that if she did not want to get hurt, she was going to do exactly

as he demanded.

{6} Appellant then entered Ms. Baker without a condom, but still was not fully

erect. So he told her; "You know what? You're going to suck my dick." Ms. Baker acted

like she was going to comply, but then made a break for the door of the truck. Appellant

caught her by the hair and dragged her back into the truck. Appellant climbed on top of

her, grabbed her neck and face and pressed down. As he did, one of his fingers went

into Ms. Baker's eye. Ms. Baker struggled, broke free and fled half dressed, barefoot

and with her skirt still hiked up around her waist.

{7} While all this was going on, Thomas Mertz was on his way to a garage he

owns near the warehouses. As he approached the area, he noticed appellant's red truck

parked behind the buildings. Because there had been some trouble with theft and

dumping in the area, Mr. Mertz planned to circle around behind the truck to see what

the driver was doing. Before he could get there, however, Ms. Baker ran up to his truck,

bloody, crying and screaming she had been raped.

{8} Ms. Baker got in the car with Mr. Mertz and Mr. Mertz asked if a red truck

was still behind the buildings. Ms. Baker said yes, and that the driver of the truck was

the man who raped her. Mr. Mertz located the truck, wrote down the plate number and Stark County, Case No. 2011-CA-00027 4

started to drive Ms. Baker to Mercy Hospital. On the way, Mr. Mertz spotted Canton

Police officer Scott Dendinger getting out of his cruiser at a Subway restaurant. He

pulled up beside Officer Dendinger and told him what happened because he believed

the driver of the red truck was still in the area.

{9} Officer Dendinger called the matter in and then went to Mercy to speak

with Ms. Baker. Ms. Baker told Officer Dendinger what she had been doing and how

she got into the situation. She did not know appellant’s name, but gave Officer

Dendinger a description. Mr. Mertz gave Officer Dendinger the plate number on the

truck. Officer Dendinger then turned the matter over to the detective bureau.

{10} Detective Bill Adams was assigned to investigate the matter on

September 16, 2010. He spoke with both Mr. Mertz and Ms. Baker and each told

Detective Adams what they had reported to Officer Dendinger. He sent the identification

bureau to the scene where Ms. Baker's hoodie and shoes were recovered.

{11} On September 20, 2010, Detective Adams learned appellant was in the

city jail and went to talk to him. Detective Adams knew that in all likelihood, appellant

was at the city jail for arraignment in the Canton Municipal Court, but did not ask if he

had appeared in court or if he was represented by counsel.

{12} Detective Adams provided appellant with his Miranda warnings and

appellant agreed to speak with Detective Adams. Appellant admitted he paid Ms. Baker

for sex, that it had went awry and that he had assaulted her. He claimed that Ms. Baker

had removed the condom and that although he had requested fellatio, he had not forced

the issue. He could not explain why he had assaulted Ms. Baker. He insisted the act

was consensual, and claimed he accidentally put his finger in Ms. Baker's eye. He Stark County, Case No. 2011-CA-00027 5

admitted, however, that he grabbed Ms. Baker to prevent her from leaving the truck

after he asked for fellatio.

{13} Appellant’s truck was seized and processed. Hair and blood were found

on the front seat. Swabs from Ms. Baker's rape kit and a DNA standard from appellant

were compared. No DNA from appellant was present on Ms. Baker's vaginal swabs.

There was, however, DNA from another male present on the swabs. Ms. Baker

sustained injury to her eye and needed to see a specialist to address the issue. Her

nose was also fractured.

{14} As a result of these events, in October 2010, the Stark County Grand Jury

returned an indictment charging appellant with one count of rape. In December, 2010,

the grand jury issued a superseding indictment charging appellant with one count of

Rape with a sexually violent predator specification, a sexual motivation specification and

a repeat violent offender specification; Kidnapping with a sexually violent predator

specification, a sexual motivation specification and a repeat violent offender

specification and Felonious Assault with a repeat violent offender specification.

{15} Appellant filed a motion to suppress his statements to Detective Adams.

He argued that because he had already been arraigned and was represented by

counsel when Detective Adams questioned him, that Detective Adams could not

question him without counsel present. The trial court rejected this argument and

overruled the motion to suppress.

{16} The matter proceeded to trial in December 2010. The State presented

testimony from Ms. Baker, Mr. Wertz, Officer Dendinger and Detective Adams.

Appellant presented no evidence. After hearing all the evidence and deliberating, the Stark County, Case No. 2011-CA-00027 6

jury found appellant guilty of Rape and Kidnapping and the attendant sexual motivation

specifications. The jury found Yoder not guilty of Felonious Assault, but guilty of the

lesser included offense of Assault.

{17} Because the jury found appellant committed the Rape and Kidnapping

with sexual motivation, the jury then heard evidence as to the sexually violent predator

specifications. Appellant stipulated that he had previously been convicted of attempted

rape and felonious assault, but argued that two incidents were not enough to support a

finding, beyond a reasonable doubt, that he was likely to engage in the future in one or

more sexually violent offenses.

{18} For the sexually violent predator trial, the state presented evidence from

Deputy Rick Stauffer. Appellant presented no evidence.

{19} Deputy Stauffer testified that he investigated an incident involving

appellant and a prostitute named Lori Griesen in March, 2002. On an unseasonably

frigid Sunday in March, Griesen showed up at a business in Canton wearing only a

sweater and a glove on one of her feet. It was a Sunday and a mechanic at the

business where Ms. Griesen showed up was the only person around. Ms. Griesen said

she had been raped, told the man what the suspect was driving and gave him a plate

number. The mechanic called the Canton Police department.

{20} The plate number came back to appellant, who then lived in Wayne

County. Ms. Griesen told police that she had been walking near the Town Manor Motel

in Canton when appellant drove up and offered her a ride home. She got in, but

appellant did not take her home. Instead, he took her a secluded area behind some Stark County, Case No. 2011-CA-00027 7

businesses that were closed for the day. He then started ripping Ms. Griesen's clothing

off. She noticed that appellant had his pants pulled down.

{21} Ms. Griesen struggled and grabbed the rearview mirror in an attempt to

use it as a weapon. She attempted to get out of the car but the interior handle had been

removed from the passenger side, so she struggled to get out the driver's side.

Appellant hit her with a tire iron and with some sticks. While struggling to exit the

vehicle, Ms. Griesen had an involuntary bowel movement. Appellant threw the feces at

her.

{22} Deputy Stauffer located appellant and questioned him about the incident.

Appellant admitted to being on a "date" with Ms. Griesen. He claimed she was out "ho-

ing," that he picked her up, found a parking spot and partially removed his pants. He

claimed that there was then a "misunderstanding." He admitted to ripping Ms. Griesen's

clothing off, striking her with a tire iron, hitting her with a stick, and grabbing her by the

neck. Appellant claimed, however, that he was the victim and was merely defending

himself from Ms. Griesen.

{23} Deputy Stauffer went to Mercy Hospital and observed Ms. Griesen's

injuries. She sustained broken ribs, numerous bruises, abrasions to her face, anus,

legs, throat and back and lacerations on her head and right wrist that required stitches.

{24} Appellant subsequently pled guilty to the Felonious Assault and Attempted

Rape of Ms. Griesen.

{25} While the jury deliberated on the sexually violent predator specification,

the court considered the two repeat violent offender specifications. Again appellant Stark County, Case No. 2011-CA-00027 8

stipulated to his prior convictions of Felonious Assault and Attempted Rape. The court

found appellant to be a repeat violent offender.

{26} Thereafter, the jury returned verdicts on the sexually violent predator

specifications, finding appellant guilty of both specifications. Appellant was subsequently

sentenced to 10 years to life for the Rape conviction and an additional mandatory and

consecutive 10 year term for the repeat violent offender specification. He was given an

identical sentence for Kidnapping. Appellant was ordered to serve the sentences

consecutively for a total term of 40 years to life. For the Assault conviction, appellant

was ordered to serve a concurrent 180 days.

{27} At the Sentencing Hearing, Defense Counsel argued that the counts of

Rape and Kidnapping should merge because there was no separate animus for these

offenses. Counsel also objected when the Court declined to merge these counts for

sentencing.

{28} Appellant has timely appealed raising five Assignments of Error,

{29} “I. THE TRIAL COURT ERRED BY IMPROPERLY ADMITTING

HEARSAY TESTIMONY.

{30} “II. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.

{31} “III. THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S

MOTION TO SUPPRESS.

{32} “IV. THE TRIAL COURT ERRED IN NOT FINDING THE CHARGES OF

RAPE AND KIDNAPPING TO BE ALLIED OFFENSES AND MERGING THESE

COUNTS FOR SENTENCING. Stark County, Case No. 2011-CA-00027 9

{33} “V. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.”

I. & II.

{34} Appellant’s First and Second Assignments of Error raise common and

interrelated issues; therefore, we will address the arguments together.

{35} In his First Assignment of Error, appellant argues that the trial court erred

during his trial for the sexually violent predator specification when it admitted hearsay

statements from Deputy Stauffer regarding the facts of his prior sexually oriented

offense. Related to his First Assignment of Error, appellant contends that his counsel

provided ineffective assistance when he failed to object to Deputy Stauffer's hearsay

testimony.

{36} An offender cannot be specified as a sexually violent predator [“SVP”]

unless the SVP specification is charged in the indictment or count in the indictment.

R.C. 2941.148. In fact, the Revised Code precludes the application of all the

specifications contained in R.C. 2941.14 through 2941.1416, unless these

specifications are properly included in an indictment. State v. Wagers, Preble App. No.

CA2009-06-018,

at ¶ 23.

{37} R.C. 2971.01(H)(1) now states that a “[s]exually violent predator” is “a

person who, on or after January 1, 1997, commits a sexually violent offense and is

likely to engage in the future in one or more sexually violent offenses.” (Emphasis

added.) Because of the potential for enhanced penalties, in order for a sexually violent

predator specification to apply to an offender, the state must prove beyond a Stark County, Case No. 2011-CA-00027 10

reasonable doubt that R.C. 2971.01(H) applies to the offender. See, State v. Williams,

,

,

. The Supreme Court of Ohio

has noted that where a prior conviction elevated the degree of the offense with which

the defendant was charged, it “did not simply enhance the penalty. It transformed the

crime itself by increasing its degree. In such a case the prior conviction is an essential

element of the crime, and must be proved by the state.” State v. Allen (1987),

,

.

{38} Effective April 29, 2005. R.C. 2971.01(H)(1) was revised. “Notably, in the

opening paragraph of the statutory changes in H.B. 473, the legislature stated that the

purpose of the change to R.C. 2971.01(H)(1) was ‘to clarify that the Sexually Violent

Predator Sentencing Law does not require that an offender have a prior conviction of a

sexually violent offense in order to be sentenced under that law.’ 2004 Ohio Laws File

163 (Am.Sub.H.B.473).” State v. Wagers, supra at ¶ 30. As the Ninth District has

noted, "[b]ased on the statute's current language, a person need not have already

been convicted of a sexually violent offense at the time of indictment to be indicted for

and subsequently found guilty of a sexually violent predator specification." State v.

Hardges, Summit App. No. 24175,

, at ¶ 50. Such a finding can be

made based on the conviction(s) of the underlying offense(s) contained in the present

indictment. State v. Hardges, Summit App. No. 24175,

.

{39} The question in the case at bar, as one court has observed, is while “[i]t is

clear that the legislature intended evidence regarding past convictions to be admissible

as an element of the offenses and that the state must prove the past convictions

beyond a reasonable doubt. It is not as clear how much evidence is allowed in to Stark County, Case No. 2011-CA-00027 11

establish the past convictions.” State v. Moissis, Lake App. No. 2000-L-187, 2002-

Ohio-4955 at ¶ 40.

{40} Whenever the State must prove a prior conviction, a certified copy of the

entry of judgment of the prior conviction, together with sufficient evidence to identify the

accused named in the entry as the offender in the case at bar, is sufficient proof of the

prior conviction. R.C. 2945.75(B); State v. McDowell (2002),

,

; State v. Harrington, 3d Dist. No. 8-01-20,

; State v.

Galloway, Richland App. No. 2003-CA-0086,

.

{41} Due process requires that the government prove beyond a reasonable

doubt every element necessary to constitute the crime with which the accused is

charged. In Re: Winship (1970),

,

,

. Due

process further forbids the courts from requiring the person accused of a criminal

offense affirmatively disprove any element of the crime. Mullaney v. Wilbur (1975),

,

,

.

{42} In the case at bar, despite appellant's open court admission that he had

been previously convicted of Attempted Rape and Felonious Assault, the state

introduced substantial evidence of the circumstances and facts involved in the

commission of those crimes.

{43} The Ohio Supreme Court has held that, “ ‘[a]s a general rule, the

introduction of evidence tending to show that a defendant has committed another crime

wholly independent of the offense for which he is on trial is prohibited.’ ” (Emphasis

added.) State v. Adams (1978),

,

,

. See, e.g., State v. Strong (1963),

,

, 196 Stark County, Case No. 2011-CA-00027

(details of like acts of defendant inadmissible where they have no relation to

offense for which defendant is on trial); State v. Lytle (1976),

,

,

; Evid.R. 404(A).

{44} The admissibility of other acts evidence is carefully limited because of the

substantial danger that the jury will convict the defendant solely because it assumes

that the defendant has a propensity to commit criminal acts, or deserves punishment

regardless of whether he or she committed the crime charged in the indictment. See

State v. Curry (1975),

,

,

.This danger is particularly high when the other acts are very similar to the charged

offense, or of an inflammatory nature, as is certainly true in this case. State v. Schaim,

,

,

. State v. Miley, Richland App.

Nos. 2005-CA- 67, 2006-CA-14,

.

{45} “In a trial before verdict the issue is whether a defendant is guilty of having

engaged in certain criminal conduct of which he has been specifically accused. Rules of

evidence have been fashioned for criminal trials which narrowly confine the trial contest

to evidence that is strictly relevant to the particular offense charged. These rules rest in

part on a necessity to prevent a time consuming and confusing trial of collateral issues.

They were also designed to prevent tribunals concerned solely with the issue of guilt of

a particular offense from being influenced to convict for that offense by evidence that

the defendant had habitually engaged in other misconduct.” Williams v. New York

(1949),

,

. Stark County, Case No. 2011-CA-00027 13

{46} There is no doubt that in the case at bar, the testimony by Deputy Stauffer

regarding the underlying facts of appellant's prior convictions went beyond merely

establishing the existence of the prior convictions.

{47} However, in order to determine whether the admission of testimony

concerning the facts underlying appellant’s prior convictions is reversible error, we must

evaluate the relationship between that evidence and the totality of other evidence

properly introduced by the state at trial. If there is other overwhelming evidence of guilt,

the admission of the testimony regarding the facts of the prior convictions will be

deemed harmless error. State v. Moritz (1980),

,

.

(Citing Schneble v. Florida (1972),

,

); State v.

Stevenson, Stark App. No. 2005-CA-00011,

.

{48} In the case at bar, the inadmissible testimony related to the SVP.

Appellant had already been convicted of the underlying charges. To prove the sexually

violent predator specifications the state must prove beyond a reasonable doubt that

appellant is likely to engage in the future in one or more sexually violent offenses. R.C.

2971.01(H)(1). In this respect, R.C. 2971.01(H)(2) provides:

{49} “(2) For purposes of division (H)(1) of this section, any of the following

factors may be considered as evidence tending to indicate that there is a likelihood that

the person will engage in the future in one or more sexually violent offenses:

{50} “(a) The person has been convicted two or more times, in separate

criminal actions, of a sexually oriented offense or a child-victim oriented offense. For

purposes of this division, convictions that result from or are connected with the same act Stark County, Case No. 2011-CA-00027 14

or result from offenses committed at the same time are one conviction, and a conviction

set aside pursuant to law is not a conviction.

{51} “(b) The person has a documented history from childhood, into the juvenile

developmental years, that exhibits sexually deviant behavior.

{52} “(c) Available information or evidence suggests that the person chronically

commits offenses with a sexual motivation.

{53} “(d) The person has committed one or more offenses in which the person

has tortured or engaged in ritualistic acts with one or more victims.

{54} “(e) The person has committed one or more offenses in which one or more

victims were physically harmed to the degree that the particular victim's life was in

jeopardy.

{55} “(f) Any other relevant evidence.”

{56} A review of the record reveals that the State presented sufficient evidence

to prove beyond a reasonable doubt that appellant had, including the conviction in the

case at bar, two or more prior convictions in separate criminal actions for sexually

oriented offenses. Appellant stipulated to his prior conviction for Attempted Rape and

was convicted in this case of Rape and Kidnapping in the present case together with the

sexual motivation specification for each count. Thus, the prior conviction element was

met in this case by proof independent of Deputy Stauffer. Accordingly, the improper

admission of underlying facts regarding the prior convictions is harmless error.

{57} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry in whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's Stark County, Case No. 2011-CA-00027 15

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993),

,

,

; Strickland v. Washington (1984),

,

,

; State v. Bradley (1989),

.

{58} In light of our discussion of appellant's First Assignment of Error,

appellant's claim of ineffective assistance of counsel raised in his Second Assignment of

Error must fail under the second prong of the Strickland test. Even if trial counsel's

performance fell below an objective standard of reasonable representation, which we do

not decide, we find any error was harmless.

{59} We acknowledge the standard for harmless error in the admission of

inflammatory or otherwise erroneous evidence is different from the standard under an

ineffective assistance of counsel analysis. However, for the same reasons advanced in

our discussion of appellant's First Assignment of Error, we cannot find the result of the

trial was unreliable or the proceeding was fundamentally unfair because of the

performance of trial counsel. State v. Boucher (Dec. 23, 1999), Licking App. No. 99 CA

00045.

{60} Appellant’s First and Second Assignments of Error are overruled.

III.

{61} In his Third Assignment of Error, appellant maintains that the trial court

erred when it denied his motion to suppress statements he made to Detective Adams.

We disagree.

{62} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside,

,

, 2003- Stark County, Case No. 2011-CA-00027 16

Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role

of trier of fact and is in the best position to resolve questions of fact and to evaluate

witness credibility. See State v. Dunlap (1995),

,

; State v. Fanning (1982),

,

. Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See

State v.

Long (1998),

,

; State v. Medcalf (1996),

,

. However, once this Court has accepted those facts

as true, it must independently determine as a matter of law whether the trial court met

the applicable legal standard. See

citing State v. McNamara (1997),

,

; See, generally, United States v. Arvizu (2002),

,

; Ornelas v. United States (1996),

,

. That is, the application of the law to the trial court's findings of fact is subject to a

de novo standard of review

Moreover, due weight should be given “to

inferences drawn from those facts by resident judges and local law enforcement

officers.”

,

.

{63} Appellant argues officers contacted appellant while he was being held in

the Canton City Jail shortly after he was arraigned and appointed counsel to represent

him.

{64} The Sixth Amendment right to counsel attaches at “the initiation of

adversary judicial criminal proceedings” such as a preliminary examination. Moore v.

Illinois (1977),

;

. Stark County, Case No. 2011-CA-00027 17

{65} Once the Sixth Amendment right to counsel has attached, however, a

defendant may still validly waive that right to counsel even if the interrogation was

initiated by the police. Montejo v. Louisiana, --- U.S. ----;

;

( 2009). Montejo reflects a recent change in the law. Previously, in Michigan v.

Jackson,

;

;

(1986), overruled

Montejo,

, the United States Supreme Court held that once the

Sixth Amendment right to counsel attached, a defendant could not validly waive that

right to counsel in police initiated custodial interrogation. Jackson,

. The

holding in Jackson was expressly overruled in Montejo. Montejo,

. The

United States Supreme Court held that the right to counsel may be validly waived in

custodial interrogation after the Sixth Amendment right to counsel has attached, even if

the interrogation was police initiated. Montejo,

. See, People v. Calkins

(Mich. App, July 27, 2010), 2010WL2925359. By overruling Jackson, the court

eliminated the per se invalidation of Miranda waiver once counsel was requested. State

v. Jones, Butler App. No. CA2009-05-140,

at ¶ 76.

{66} While appellant was undisputedly appointed counsel, he did not invoke his

Miranda rights at any time prior to his interview with Detective Adams. Appellant relies

solely on his appointment of counsel at arraignment to demonstrate that he invoked his

rights. However, the Montejo court specifically stated, “we have in fact never held that a

person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial

interrogation [.]’ * * * What matters for Miranda and Edwards is what happens with the

defendant is approached for interrogation, and (if he consents) what happens during the

interrogation—not what happened at any preliminary hearing.” Montejo, 129 S.Ct. Stark County, Case No. 2011-CA-00027 18

at 2091, quoting McNeil v. Wisconsin (1991),

,

.

State v. Jones, supra at ¶77.

{67} In the case at bar, the record is void of any reference to appellant invoking

his Miranda rights. In fact, the record in the case at bar establishes just the opposite;

appellant does not dispute that he validly waived his Miranda warnings and agreed to

speak with Detective Adams. Rather, appellant argues we should not follow the Montejo

decision when interpreting the Ohio Constitution. [Appellant’s Brief at 8.]. However, in

State v. Gardner,

,

,

, the Court

explained,

{68} “We are, of course, free to determine that the Ohio Constitution confers

greater rights on its citizens than those provided by the federal Constitution, and we

have not hesitated to do so in cases warranting an expansion. See, e.g., Norwood v.

Horney,

,

,

(holding that the Ohio

Constitution's Takings Clause affords greater protection than the corresponding federal

provision). But despite the fact that state constitutions are a vital and independent

source of law, see, generally William J. Brennan Jr., The Bill of Rights and the States:

The Revival of State Constitutions as Guardians of Individual Rights (1986), 61

N.Y.U.L.Rev. 535, as an institution, “this court has not, on most occasions, used the

Ohio Constitution as an independent source of constitutional rights.” Arnold v. Cleveland

(1993),

,

. We must be cautious and

conservative when we are asked to expand constitutional rights under the Ohio

Constitution, particularly when the provision in the Ohio Constitution is akin to a

provision in the U.S. Constitution that has been reasonably interpreted by the Supreme Stark County, Case No. 2011-CA-00027 19

Court. State v. Brown,

,

,

, ¶

28 and 29 (O'Connor and Stratton, JJ., dissenting) (where the language used by the

federal and Ohio Constitutions is “virtually identical,” it is “illogical” to suggest that the

provisions should be interpreted differently)...Our analysis of similar constitutional

provisions should not be driven simply by disagreement with the result reached by the

federal courts' interpretation.” Id. at ¶76.

{69} In the case at bar, appellant stipulated that he was read his Miranda rights

by Detective Adams prior to the discussion, and that appellant did validly waive his

Miranda rights. (Supp. T. Dec. 13, 2010 at 10). The trial court therefore did not err in

denying his motion to suppress.

{70} Appellant’s Third Assignment of Error is overruled.

IV.

{71} In appellant’s Fourth Assignment of Error, he argues that his convictions

for kidnapping and rape are allied offenses of similar import, and should have merged

for sentencing. We agree.

{72} In State v. Johnson,

,

,

, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson

court overruled State v. Rance, (1999),

,

, “to the

extent that it calls for a comparison of statutory elements solely in the abstract under

R.C. 2941.25.” The Ohio Supreme Court established a new two-part test for determining

whether offenses are allied offenses of similar import under R.C. 2941.25.

{73} The first inquiry focuses on whether it is possible to commit both offenses

with the same conduct. Id. at ¶ 48,

. It is not necessary that the Stark County, Case No. 2011-CA-00027 20

commission of one offense will always result in the commission of the other.

Rather,

the question is whether it is possible for both offenses to be committed by the same

conduct.

quoting State v. Blankenship (1988),

,

. Conversely, if the commission of one offense will never result in the commission of

the other, the offenses will not merge. Johnson at ¶ 51.

{74} If it is possible to commit both offenses with the same conduct, the court

must next determine whether the offenses were in fact committed by a single act,

performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown,

,

,

, ¶ 50 (Lanzinger, J., concurring in

judgment only). If so, the offenses are allied offenses of similar import and must be

merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately

or with a separate animus, the offenses will not merge. Id. at ¶ 51.

{75} Under Johnson, “the court need not perform any hypothetical or abstract

comparison of the offenses at issue in order to conclude that the offenses are subject to

merger.” Id. at ¶ 47,

. Rather, the court simply must ask whether the

defendant committed the offenses by the same conduct.

{76} The Supreme Court of Ohio has previously held that rape and kidnapping

can be allied offenses of similar import. State v. Donald ( 1979),

,

, syllabus. However, the court acknowledged that even though the

offenses are of similar import, a person can be convicted of both if the offenses were

either (1) committed with a separate animus; or (2) committed separately. Stark County, Case No. 2011-CA-00027 21

{77} In State v. Logan, the court laid out the requirements in order to determine

what constitutes a separate animus for kidnapping and a related offense. State v. Logan

(1979),

,

. Specifically, the court stated:

{78} “In establishing whether kidnapping and another offense of the same or

similar kind are committed with a separate animus as to each pursuant to R.C.

2941.25(B), this court adopts the following guidelines:

{79} “(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;

{80} “(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.”

at syllabus.

{81} In the case at bar, we must determine whether appellant in fact committed

both offenses by way of a single act, performed with a single state of mind, or whether

he had separate animus for each offense. Johnson,

; R.C.

2941.25(B).

{82} In the case at bar, there was no asportation or secreting of the victim. Ms.

Baker voluntarily entered the van. The van was driven to a secluded location. The

purpose was clearly to engage in the consensual sexual act. Stark County, Case No. 2011-CA-00027 22

{83} In the case at bar, the encounter turned from consensual to force when

appellant grabbed Ms. Baker by the throat squeezed and said "well then, you're going to

fuck without a condom." Appellant told Ms. Baker that if she did not want to get hurt, she

was going to do exactly as he demanded. She thereafter attempted to exit the vehicle at

which time appellant caught her by the hair and dragged her back into the truck.

Appellant climbed on top of her, grabbed her neck and face and pressed down. As he

did, one of his fingers went into Ms. Baker's eye.

{84} In the case at bar, the use of force and subsequent restraint were utilized

by appellant to force Ms. Baker to perform a sexual act that she had not agreed to

perform. Under the facts of this case we are compelled to find that this was a single act

committed with a single state of mind.

{85} Accordingly appellant’s Fourth Assignment of Error is sustained. In

accordance with the Ohio Supreme Court's decision in State v. Whitfield,

,

,

, we remand this case to the trial court

for further proceedings consistent with that opinion. This decision in no way affects the

guilty verdicts issued by the jury. It only affects the entry of conviction and sentence.

Appellant's convictions are affirmed.

V.

{86} In his Fifth Assignment of Error appellant maintains that his conviction is

against the sufficiency of the evidence and against the manifest weight of the evidence,

{87} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia (1979),

,

,

, which requires a court of appeals to determine whether Stark County, Case No. 2011-CA-00027 23

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown (2010), --- U.S. ----,

,

(reaffirming this standard). See, State v. Clay,

,

,

at ¶68.

{88} Jackson thus establishes a two-step inquiry for considering a challenge to

a conviction based on sufficiency of the evidence. First, a reviewing court must consider

the evidence presented at trial in the light most favorable to the prosecution. Jackson,

,

,

. This means that a court of appeals

may not usurp the role of the finder of fact by considering how it would have resolved

the conflicts, made the inferences, or considered the evidence at trial. See

at 318-

319,

,

,

. Rather, when “faced with a record of

historical facts that supports conflicting inferences” a reviewing court “must presume-

even if it does not affirmatively appear in the record-that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that resolution.”

,

,

,

; see also McDaniel, --- U.S. ----,

,

; United States v. Nevils (C.A.9, 2010),

.

{89} Second, after viewing the evidence in the light most favorable to the

prosecution, the reviewing court must determine whether this evidence, so viewed, is

adequate to allow “any rational trier of fact [to find] the essential elements of the crime

beyond a reasonable doubt.” Jackson,

,

,

;

State v. Thompkins (1997),

,

; State v. Jenks

(1991),

,

. See, State v.

. Stark County, Case No. 2011-CA-00027 24

{90} This second step protects against rare occasions in which “a properly

instructed jury may * * * convict even when it can be said that no rational trier of fact

could find guilt beyond a reasonable doubt.” Jackson,

,

,

. More than a “mere modicum” of evidence is required to support a

verdict.

,

,

(rejecting the rule that a conviction be

affirmed if “some evidence” in the record supports the jury's finding of guilt). At this

second step, however, a reviewing court may not “‘ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt,’ ”

,

,

, quoting Woodby v. INS (1966),

,

,

, only whether “any” rational trier of fact could have made that

finding,

,

,

.

{91} Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a

manifest miscarriage of justice, State v. Thompkins (1997),

,

,

, superseded by constitutional amendment on other grounds

as stated by State v. Smith,

,

,

. On

review for manifest weight, a reviewing court is “to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses and

determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its

way and created such a manifest miscarriage of justice that the judgment must be

reversed. The discretionary power to grant a new hearing should be exercised only in

the exceptional case in which the evidence weighs heavily against the judgment.” State Stark County, Case No. 2011-CA-00027 25

v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983),

. Because the trier of fact is in a better position to observe the

witnesses’ demeanor and weigh their credibility, the weight of the evidence and the

credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967),

,

, syllabus 1.

{92} In Thompkins, the Ohio Supreme Court held "[t]o reverse a judgment of a

trial court on the basis that the judgment is not sustained by sufficient evidence, only a

concurring majority of a panel of a court of appeals reviewing the judgment is

necessary."

at paragraph three of the syllabus. However, to "reverse a judgment of

a trial court on the weight of the evidence, when the judgment results from a trial by jury,

a unanimous concurrence of all three judges on the court of appeals panel reviewing

the case is required."

at paragraph four of the syllabus; State v. Miller (2002),

,

,

.

{93} Appellant first argues that his convictions for Rape and Kidnapping are

against the manifest weight and sufficiency of the evidence.

{94} In order to convict appellant of Rape pursuant to R.C. 2907.02(A)(2), the

State had to prove appellant engaged in sexual conduct with Ms. Baker by force or

threat of force. “Sexual conduct” is defined to include “vaginal intercourse between a

male and female; anal intercourse, fellatio, and cunnilingus between persons regardless

of sex; and, without privilege to do so, the insertion, however slight, of any part of the

body or any instrument, apparatus, or other object into the vaginal or anal cavity of

another. Penetration, however slight, is sufficient to complete vaginal or anal

intercourse.” R.C. 2907.01(A). Stark County, Case No. 2011-CA-00027 26

{95} In the case at bar, Ms. Baker testified that she agreed to have sex with

appellant, but only if he agreed to use a condom. During the act, appellant decided he

would rather not use the condom. When Ms. Baker told appellant she did not want to

have sex without a condom, he grabbed her by the throat, told her that if she did not

want to get hurt, she would do exactly as she was told. Appellant then inserted his

partially erect penis into Ms. Baker's vagina.

{96} “Corroboration of victim testimony in rape cases is not required. See State

v. Sklenar (1991),

,

; State v. Banks (1991),

,

; State v. Lewis (1990),

,

; State v. Gingell (1982),

, 7 OBR 464,

.” State v. Johnson, 112 Ohio St .3d 210, 217, 2006-Ohio6404 at ¶ 53,

.

{97} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

appellant had committed the crime of Rape. We hold, therefore, that the State met its

burden of production regarding each element of the crime of Rape and, accordingly,

there was sufficient evidence to support appellant's conviction.

{98} To find the appellant guilty of Kidnapping as charged in appellant's case,

the jury would have to find appellant, by force, threat or deception removed Ms. Baker

from the place where she was found or restrain the liberty of Ms. Baker in order to

engage in sexual activity with her against her will. R.C. 2905. 01(A)(4). “Sexual activity”

is defined as “sexual conduct or sexual contact, or both.” R.C. 2907.01(C). “Sexual

contact” is defined as “any touching of an erogenous zone of another, including without Stark County, Case No. 2011-CA-00027 27

limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast,

for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B)

{99} Ms. Baker testified that appellant grabbed her by the throat squeezed and

said "well then, you're going to fuck without a condom." Appellant told Ms. Baker that if

she did not want to get hurt, she was going to do exactly as he demanded. She

thereafter attempted to exit the vehicle at which time appellant caught her by the hair

and dragged her back into the truck. Appellant climbed on top of her, grabbed her neck

and face and pressed down. As he did, one of his fingers went into Ms. Baker's eye.

{100} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

appellant had committed the crime of Kidnapping. We hold, therefore, that the State met

its burden of production regarding each element of the crime of Kidnapping and,

accordingly, there was sufficient evidence to support appellant's conviction for

Kidnapping.

{101} Appellant additionally argues as he did in his First Assignment of Error

supra that the evidence admitted during his sexually violent predator trial was entirely

hearsay. Appellant maintains that because the evidence against him consisted of

hearsay, the evidence was not sufficient to support a finding that he is guilty of the

sexually violent predator specifications and his convictions are against the manifest

weight of the evidence.

{102} As stated in our disposition of appellant’s First Assignment of Error, all that

the State needed to show in order to prove the sexually violent predator specifications

was that appellant has two or more convictions for a sexually oriented offense. Stark County, Case No. 2011-CA-00027 28

Appellant stipulated to his prior conviction and had been convicted of two more sexually

oriented offenses in the instant matter. The State thereby produced sufficient evidence

to support the conviction.

{103} As an appellate court, we neither weigh the evidence nor judge the

credibility of witnesses. Our role is to determine whether there is relevant, competent

and credible evidence, upon which the fact finder could base its judgment. Cross Truck

v. Jeffries (February 10, 1982), Stark App. No. CA-5758. Accordingly, a judgment

supported by competent, credible evidence going to all the essential elements of the

case will not be reversed as being against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Constr. (1978),

,

.

{104} “A fundamental premise of our criminal trial system is that ‘the jury is the

lie detector.’ United States v. Barnard,

(C.A.9 1973) (emphasis

added), cert. denied,

,

,

(1974). Determining

the weight and credibility of witness testimony, therefore, has long been held to be the

‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their

natural intelligence and their practical knowledge of men and the ways of men.’ Aetna

Life Ins. Co. v. Ward,

,

,

(1891)”.

United States v. Scheffer (1997),

,

.

{105} Although appellant cross-examined the witnesses and argued that the

victim had consented to sexually activity and that her version of the events was not

credible, the weight to be given to the evidence and the credibility of the witnesses are

issues for the trier of fact. State v. Jamison (1990),

, certiorari denied

(1990),

. Stark County, Case No. 2011-CA-00027 29

{106} The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witness’s credibility. "While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence". State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v.

Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 Indeed, the jurors need not

believe all of a witness' testimony, but may accept only portions of it as true. State v.

Raver, Franklin App. No. 02AP-604, 2003- Ohio-958, at ¶ 21, citing State v. Antill

(1964),

, 67,

.; State v. Burke, Franklin App. No. 02AP-

1238,

, citing State v. Caldwell (1992),

,

. Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v. Jenks (1991),

,

.

{107} The jury heard the witnesses, evaluated the evidence, and was convinced

of appellant's guilt.

{108} Appellant’s Fifth Assignment of Error is overruled. Stark County, Case No. 2011-CA-00027 30

{109} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed in part, reversed in part. In accordance with the Ohio

Supreme Court's decision in State v. Whitfield,

,

,

, we remand this case to the trial court for further proceedings

consistent with that opinion. This decision in no way affects the guilty verdicts issued by

the jury. It only affects the entry of conviction and sentence. Appellant's convictions are

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER

WSG:clw 0907 [Cite as State v. Yoder,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : SAM YODER : : : Defendant-Appellant : CASE NO. 2011-CA-00027

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is affirmed in part, reversed in part.

In accordance with the Ohio Supreme Court's decision in State v. Whitfield,

,

,

, we remand this case to the trial court

for further proceedings consistent with that opinion. This decision in no way affects the

guilty verdicts issued by the jury. It only affects the entry of conviction and sentence.

Appellant's convictions are affirmed. Costs divided equally between the parties.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER [Cite as State v. Yoder,

.]