[Cite as State v. Johnson,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-13-45

v.

JOHNNY F. JOHNSON, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR2012 0414

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: October 27, 2014

APPEARANCES:

F. Stephen Chamberlain for Appellant

Terri L. Kohlrieser for Appellee Case No. 1-13-45

PRESTON, J.

{¶1} Defendant-appellant, Johnny F. Johnson, Jr. (“Johnson”), appeals the

judgment entry of sentence of the Allen County Court of Common Pleas. He

argues that the trial court erred by denying his motion to suppress the victim’s

pretrial identification of him, that his convictions were not supported by sufficient

evidence and were against the manifest weight of the evidence, that counsel for

plaintiff-appellee, the State of Ohio (“State”), engaged in prosecutorial misconduct

during closing argument, and that the trial court erred by failing to merge for

purposes of sentencing his convictions for kidnapping and attempted rape. For the

reasons that follow, we affirm in part and reverse in part.

{¶2} On January 17, 2013, the Allen County Grand Jury indicted Johnson

on Count One of attempted rape in violation of R.C. 2907.02(A)(2) and 2923.02, a

second-degree felony, and on Count Two of kidnapping in violation of R.C.

2905.01(B)(2), a first-degree felony. (Doc. No. 3). The indictment stemmed from

a November 28, 2012 incident in which Johnson allegedly attacked the victim,

M.F., and attempted to force her to perform fellatio on him under the porch of an

abandoned apartment building adjacent to an alley in Lima, Ohio. (See July 1-3,

2013 Tr., Vol. Two, at 220-222). Approximately an hour after the alleged

incident, M.F. identified Johnson as the person who attempted to force her to

perform fellatio. (See id. at 227-229).

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{¶3} The trial court held an arraignment hearing on January 25, 2013. (See

Doc. Nos. 6, 70). Johnson entered pleas of not guilty. (Doc. No. 70).

{¶4} On March 1, 2013, Johnson filed a motion to suppress M.F.’s pretrial

identification of him, arguing that the one-person “show-up” used to identify him

was inherently suggestive. (Doc. No. 18). Johnson requested a hearing on his

motion. (Id.).

{¶5} On March 18, 2013, the trial court held a hearing on Johnson’s motion

to suppress. (Mar. 18, 2013 Tr. at 1).

{¶6} The trial court issued a judgment entry on March 19, 2013, denying

Johnson’s motion to suppress. (Doc. No. 29). The next day, the trial court issued

an amended judgment entry “to correct typos.” (Doc. No. 30).

{¶7} On July 1, 2, and 3, 2013, a jury trial was held on the indictment.

(July 1-3, 2013 Tr., Vol. One, at 2); (Doc. No. 70). The jury found Johnson guilty

of both counts in the indictment. (July 1-3, 2013 Tr., Vol. Four, at 643-646);

(Doc. Nos. 67, 68). The trial court filed its judgment entry accepting the verdicts

on July 3, 2013. (Doc. Nos. 67, 68).

{¶8} The trial court held a sentencing hearing on August 19, 2013. (Aug.

19, 2013 Tr. at 1). At the beginning of the sentencing hearing, the trial court heard

argument concerning whether the offenses of which the jury found Johnson

guilty—attempted rape and kidnapping—merged under R.C. 2941.25. (Id. at 1-9).

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The trial court concluded that the offenses did not merge and sentenced Johnson to

8 years imprisonment on Count One and 11 years imprisonment on Count Two, to

be served consecutively for an aggregate prison term of 19 years. (Id. at 9, 22-23);

(Doc. No. 77). The trial court filed its judgment entry of sentence the next day.

(Doc. No. 77).

{¶9} On September 16, 2013, Johnson filed a notice of appeal. (Doc. No.

80). He raises four assignments of error for our review.

Assignment of Error No. I

That the trial court committed error by overruling the defendant’s motion to suppress the pre trial identification of the defendant by a single person show up identification.

{¶10} In his first assignment of error, Johnson argues that the trial court

erred by concluding that M.F.’s show-up identification of Johnson was “reliable

and admissible notwithstanding the suggestive nature of the ‘show-up.’” (Doc.

No. 30). Johnson argues that the trial court “failed to properly consider and weigh

the factors and the totality of the circumstances of this case.” (Appellant’s Brief at

11). He also argues that it was error for the trial court to believe M.F.’s testimony

despite “the suggestive nature of having a lone black male in the back of a marked

police car shown to a recent attack victim in a post traumatic state.” (Id. at 13).

We disagree.

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{¶11} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside,

, 2003-Ohio-

5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact

and, as such, is in the best position to evaluate the evidence and the credibility of

witnesses.

See also State v. Carter,

(1995).

{¶12} When reviewing a ruling on a motion to suppress, “an appellate court

must accept the trial court’s findings of fact if they are supported by competent,

credible evidence.”

, citing State v. Fanning,

(1982). With respect to the trial court’s conclusions of law, however, our standard

of review is de novo, and we must independently determine whether the facts

satisfy the applicable legal standard.

citing State v. McNamara,

(4th Dist. 1997).

{¶13} A trial court will suppress a pretrial identification only if it is both

unnecessarily suggestive and unreliable given the totality of the circumstances.

State v. Frazier, 3d Dist. Shelby Nos. 17-11-06 and 17-11-07,

, citing State v. Manley, 3d Dist. Allen No. 1-11-04,

. “The

burden of proving that the identification procedure was suggestive and unreliable

rests on the defendant.” Manley at ¶ 5, citing State v. Taylor, 3d Dist. Allen No. 1-

03-20,

.

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{¶14} “[A] one-person ‘show-up’ identification is inherently suggestive.”

State v. Ealy, 10th Dist. Franklin No. 11AP-750,

, ¶ 8, citing State

v. Gonzalez, 10th Dist. Franklin No. 10AP-628,

, ¶ 9. The

Supreme Court of the United States has stated that suggestive identifications are

problematic because they increase the likelihood of misidentification. Neil v.

Biggers,

,

(1972). However, the admission of

evidence of a show-up identification, without more, does not violate due process.

{¶15} “Even if the original identification procedure was suggestive, the

actual identification is still admissible as long as it is reliable.” Manley at ¶ 5,

citing Manson v. Brathwaite,

,

(1977) and State v.

Moody,

(1978). We must therefore determine whether the show-

up identification was reliable based on the totality of the circumstances. Frazier at

¶ 54, citing

. In Biggers, the Court listed five factors that a court

must consider when evaluating the likelihood of misidentification:

(1) the witness’s opportunity to view the offender at the time of the

crime, (2) the witness’s degree of attention at the time of the crime,

(3) the accuracy of the witness’s prior description of the offender,

(4) the witness’s level of uncertainty when identifying the suspect at

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the confrontation, and (5) the length of time that elapsed between the

crime and the confrontation.

Manley at ¶ 5, quoting State v. Monford,

,

, ¶

39 (10th Dist.), citing

. See also Frazier at ¶ 54.

{¶16} In its entry denying Johnson’s motion to suppress, the trial court

relied on many facts, all of which were supported by competent, credible evidence

presented at the suppression hearing. (See Doc. No. 30). Two witnesses—M.F.

and Officer Amy Glanemann (“Glanemann”) of the Lima Police Department—

testified at the suppression hearing. M.F. testified that while she was walking

home from school on November 28, 2012 between 5:00 and 5:30 p.m., she was

approached by a male who came within an arm’s length in front of her and asked

if he could walk with her. (Mar. 18, 2013 Tr. at 22, 35-36, 41). According to

M.F., she declined the male’s request, and he said, “Why not do it? Do I look

old?” (Id. at 23). They walked together for about a block and a half, and M.F.

was able to get a look at the male. (Id.). M.F. entered a business, The Meeting

Place, because she did not want to walk with him. (Id.).

{¶17} M.F. testified that after between 10 to 20 minutes, she left The

Meeting Place and resumed her walk home, at which point she saw the same male

whose face she recognized. (Id. at 24). She attempted to ignore him, but he

spotted her and ran toward her saying, “Honey, wait up,” and, “Why are you

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ignoring me?” (Id. at 24-25). The male asked M.F. to go to McDonald’s with

him, and M.F. initially refused, but when he persisted, she agreed and planned to

call the police there. (Id. at 25).

{¶18} M.F. testified that the male suggested they take a shortcut to

McDonald’s through an alley. (Id. at 25-26). When M.F. told him she did not like

alleys, he looked back at her and said, “I wish I knew what someone had done to

you to make you like this.” (Id. at 26). According to M.F., she “let down [her]

guard” and agreed to walk down the alley. (Id.). M.F. testified that after they

walked a couple paces into the alley, the male suggested they take a perpendicular

alley to get to the street. (Id. at 26-27). According to M.F., the male turned into

the perpendicular alley after her, so he was behind her, and she heard him make

“like a tripping sound,” at which point she turned around to see what happened,

and he grabbed her arm and started hitting her. (Id. at 27).

{¶19} M.F. testified that after the attack ended, she ran across the street into

the Rite Aid Pharmacy (“Rite Aid”), and the clerk there called the police. (Id.).

According to M.F., from the time she first encountered the male to the time he

attacked her, about 20 minutes to a half an hour passed. (Id.). M.F. testified that

when she first encountered the male, “it was fairly light out,” and she could see

that the sun was getting close to the horizon. (Id. at 27-28). According to M.F.,

during the encounter, she “had a full look at his face,” and “several times during

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the conversation he turned his face towards [hers].” (Id. at 28). When the police

arrived at Rite Aid, M.F. gave them a description of the man’s face, approximate

weight, and clothing. (Id.).

{¶20} M.F.’s father took her to the emergency room at St. Rita’s Medical

Center (“St. Rita’s”). (Id. at 29). While there, an officer informed M.F.’s father

that the police “had somebody that they wanted [her] to I.D.,” and M.F.’s father

informed M.F. (Id.). M.F. went out to the “archway lit for the ambulances” and

saw two police cars and three officers. (Id. at 29-30). According to M.F., the area

was “well lit.” (Id. at 30). The police did not speak to M.F. until she got outside.

(Id. at 29). One of the officers shined a light into one of the cruisers containing a

man so M.F. could see the man’s face. (Id. at 30). M.F. recognized the man as the

one who attacked her “as soon as the light was on his face,” and she was “very

sure” it was him because she recognized his face, and specifically his facial

proportions and facial hair. (Id. at 30-31, 33). She told one of the officers that she

“was a hundred and ten percent sure that that was the bastard.” (Id. at 30). That

officer asked M.F. “three times if [she] was sure that it was him.” (Id. at 33).

M.F. testified that between 10 to 20 minutes elapsed between when she ran into

the Rite Aid and when the officers showed her the man in the cruiser. (Id. at 34).

{¶21} Glanemann testified that on November 28, 2012 at approximately

5:30 p.m., she and another officer were notified of a possible sexual assault that

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occurred near the Rite Aid on Market Street. (Id. at 3-5, 9). According to

Glanemann, the dispatcher described the suspect as a black male with a goatee,

approximately five feet, seven inches tall, about 300 pounds, wearing dark

clothing. (Id. at 4, 9, 18). Glanemann testified that they located Johnson, who

matched the description of the suspect, a few blocks from the Rite Aid, and they

took him to St. Rita’s “so he could be I.D.’d by the victim.” (Id. at 5-6, 19-21).

According to Glanemann, in the area where the officers were searching, no one

else matched the description of the suspect, and she could not recall seeing anyone

else in the area. (Id. at 19).

{¶22} According to Glanemann, the officers pulled the cruiser underneath

the overhang of the emergency room at St. Rita’s. (Id. at 13). M.F. identified

Johnson as the person who attacked her, and she told Glanemann that she “was a

hundred and ten percent sure it was him.” (Id. at 7). Glanemann testified that

when M.F. identified Johnson, she was five to ten feet from the cruiser, and she

looked at Johnson “for a couple seconds.” (Id. at 14-15). Johnson was in the back

seat of the cruiser, and the window, which was not tinted, was cracked. (Id. at 14).

It was dark out, but the lights of the emergency room overhang were on. (Id. at

10, 15). Johnson was not handcuffed, and only Johnson and three uniformed

officers were present. (Id. at 8, 17). Glanemann had no contact with M.F. prior to

her identifying Johnson. (Id. at 7-9). Glanemann testified that approximately 20

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to 25 minutes elapsed from the time of the assault to the time M.F. identified

Johnson. (Id. at 19). Glanemann identified Johnson for the record at the

suppression hearing. (Id. at 6).

{¶23} We agree with the trial court that M.F. identified Johnson in an

inherently suggestive show-up identification. (Doc. No. 30). However, in light of

all of the facts on which the trial court relied in denying Johnson’s motion to

suppress, we conclude that M.F.’s identification of Johnson was reliable based on

the totality of the circumstances and therefore admissible. Applying the first

Biggers factor, M.F. had multiple opportunities to view Johnson. He first

presented himself directly in front of M.F., only about an arm’s length away.

During M.F.’s 20 to 30-minute encounter with Johnson, Johnson turned his face

toward hers “several times.” The sun was approaching the horizon, and it was

“fairly light out.”

{¶24} Second, M.F.’s degree of attention before and during the crime was

substantial. M.F. testified in great detail concerning the respective routes that she

and Johnson took. She described the streets she was on and the directions she and

Johnson were facing at specific times.

{¶25} Third, M.F.’s description of Johnson to the police was accurate.

Johnson is a black male with a goatee and approximately five feet, seven inches

tall and approximately 300 pounds. When the officers located him, he was

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wearing dark clothing, just as M.F. described. In Glanemann’s words, Johnson

“absolutely” fit the description M.F. gave the police. (Mar. 18, 2013 Tr. at 20).

{¶26} Fourth, M.F. had no uncertainty when she identified Johnson outside

the emergency room at St. Rita’s. Underneath the well-lit emergency room

overhang, M.F. recognized Johnson’s face immediately when an officer shined a

light on it as he was sitting in the police cruiser. M.F. was “very sure”—or, as she

described to one of the officers, “a hundred and ten percent sure”—that Johnson

was the person who attacked her.

{¶27} Finally, about 20 to 30 minutes passed between when M.F. first

encountered Johnson to the time he attacked her, and then only about 10 to 20

minutes elapsed between when M.F. ran into the Rite Aid and when she identified

Johnson. That is a relatively short amount of time. See State v. Gonzalez, 10th

Dist. Franklin No. 10AP-628,

, ¶ 17-18 (describing 15 or 30

minutes as “very little time” and concluding that the trial court did not err in

denying the defendant’s motion to suppress). See also State v. Gross,

,

(concluding that it was not reversible error

for the trial court to admit a show-up identification that took place “several hours”

after the crime).

{¶28} For these reasons, we conclude that the trial court did not err by

denying Johnson’s motion to suppress.

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{¶29} Johnson’s first assignment of error is overruled.

{¶30} To facilitate our analysis, we will address the remainder of Johnson’s

assignments of error out of order.

Assignment of Error No. IV

That the convictions of the defendant are against the manifest weight of the evidence and based upon insufficient evidence.

{¶31} In his fourth assignment of error, Johnson argues that his convictions

for attempted rape and kidnapping are against the manifest weight of the evidence

and supported by insufficient evidence. Johnson does not dispute that someone

kidnapped and attempted to rape M.F. Rather, Johnson argues that he was

misidentified as the perpetrator of the offenses and convicted based on “the

identification evidence of one person.” (Appellant’s Brief at 21). According to

Johnson, he was “taken in the back of a police car to a hospital and displayed as a

guilty, apprehended criminal to a 17 year old girl who had just gone through a

horrible, physical attack and when she was in a highly emotional state.” (Id.). We

disagree that Johnson’s convictions are against the manifest weight of the

evidence and based on insufficient evidence.

{¶32} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

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St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds as stated in State v. Smith,

(1997).

Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt.”

“In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts

nor assess the credibility of witnesses, as both are functions reserved for the trier

of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-

Ohio-4775, ¶ 33, citing State v. Williams,

,

(1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-

Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than

credibility or weight of the evidence.”), citing State v. Thompkins,

(1997).

{¶33} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

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 conviction must be reversed and a new trial ordered.’”

,

quoting State v. Martin,

(1st Dist. 1983). A reviewing

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court must, however, allow the trier of fact appropriate discretion on matters

relating to the weight of the evidence and the credibility of the witnesses. State v.

DeHass,

(1967), paragraph one of the syllabus. When applying

the manifest-weight standard, “[o]nly in exceptional cases, where the evidence

‘weighs heavily against the conviction,’ should an appellate court overturn the trial

court’s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34,

, quoting State v. Hunter,

,

.

{¶34} Johnson was convicted of attempted rape in violation of R.C.

2907.02(A)(2) and 2923.02 and of kidnapping in violation of R.C. 2905.01(B)(2).

R.C. 2907.02 sets forth the crime of rape and provides, in relevant part: “No

person shall engage in sexual conduct with another when the offender purposely

compels the other person to submit by force or threat of force.” R.C.

2907.02(A)(2). R.C. 2923.02, the attempt statute, provides: “No person,

purposely or knowingly, and when purpose or knowledge is sufficient culpability

for the commission of an offense, shall engage in conduct that, if successful,

would constitute or result in the offense.” R.C. 2923.02(A).

{¶35} R.C. 2905.01 sets forth the crime of kidnapping and provides, in

relevant part:

(B) No person, by force, threat, or deception, shall knowingly do

any of the following, under circumstances that create a substantial

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risk of serious physical harm to the victim or, in the case of a minor

victim, under circumstances that either create a substantial risk of

serious physical harm to the victim or cause physical harm to the

victim:

***

(2) Restrain another of the other person’s liberty.

R.C. 2905.01(B)(2).

{¶36} As we mentioned above, Johnson disputes only the issue of identity.

Therefore, we will address only the identity element of the attempted-rape and

kidnapping offenses. See State v. Carter, 2d Dist. Montgomery No. 25447, 2013-

Ohio-3754, ¶ 9-12 (addressing only the element of identity because the appellant

did not contest the other elements of the offenses). “It is well settled that in order

to support a conviction, the evidence must establish beyond a reasonable doubt the

identity of the defendant as the person who actually committed the crime at issue.”

State v. Johnson, 7th Dist. Jefferson No. 13 JE 5,

, citing

State v. Collins, 8th Dist. Cuyahoga No. 98350,

, ¶ 19 and State v.

Lawwill, 12th Dist. Butler No. CA2007-01-014,

. “[D]irect

or circumstantial evidence is sufficient to establish the identity of the accused as

the person who committed the crime.” Collins at ¶ 19, citing Lawwill at ¶ 11.

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{¶37} At trial, M.F. testified that on November 28, 2012, she was 17 years

old and in the eleventh grade at Lima Senior High School. (July 1-3, 2013 Tr.,

Vol. Two, at 208). She commenced her walk home from school “a little bit” after

4:30 p.m. that day. (Id.). As she was walking, a male approached her, came

within “half an arm’s distance” of her, and began talking to her. (Id. at 209).

According to M.F., she noticed that the male was black, had a goatee, “was maybe

three or four inches taller than [her], so about five-eight/five-nine,” husky, “but

not like obese,” and wearing dark pants and a black jacket. (Id. at 210). M.F.

testified that despite her telling the male, “No,” when he asked if he could walk

with her, he continued to walk “a little in front” of her, and they continued to have

a conversation, for about a block and a half or two blocks. (Id. at 209-212, 278).

As they walked, M.F. kept the male in her “line of sight at all times” so she could

“keep an eye on him.” (Id. at 212). According to M.F., the male asked her how

old she was and if she attended Lima Senior, and he said that he just moved from

Chicago and attended Lima Senior, too. (Id. at 210).

{¶38} M.F. testified that she made an excuse to get away from the male,

telling him that she was going into The Meeting Place, a business, to see her

boyfriend who worked there. (Id. at 212). After spending 10 to 20 minutes in The

Meeting Place, M.F. left and continued her walk home. (Id. at 214-215). M.F.

testified that she saw the same male that approached her earlier and that she

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“walked straight past him” as if she did not see him. (Id. at 215). According to

M.F., the male spotted her and, jogging toward her, attempted to get her attention

by calling her “honey” and “baby,” which made her uncomfortable and concerned

for her safety. (Id. at 213, 216-217).

{¶39} M.F. testified that the male said he just wanted to be friends and

asked if she would go with him to McDonald’s. (Id. at 217). She agreed and

intended to call the police there. (Id.). According to M.F., she wanted to walk

along the street to McDonald’s, and when the male suggested they take an alley,

she said she did not want to walk through the alley. (Id. at 218). M.F. testified

that the male then said, “Damn, what did somebody do to make you like this?”

(Id. at 218-219). She agreed to go down the alley because it was open on one side,

and when they came to an intersecting alley, the male suggested they take it back

out to the street and walk along it rather than the alley so she would be more

comfortable. (Id. at 219).

{¶40} M.F. testified that she agreed, and when they turned into that

intersecting alley, the male grabbed M.F.’s arm, started hitting her with his fists,

and told her that she was going to “suck his dick.” (Id. at 220-221). According to

M.F., he then moved her from the alley to under a porch of an abandoned

apartment building abutting the alley and told her that if she screamed, he would

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kill her. (Id.). M.F. could not recall how the male moved her from the alley to

under the porch. (Id. at 221).

{¶41} M.F. testified that under the porch, she was on her knees with the

male behind her, and when she attempted to grab onto a wire fence to pull herself

up, he told her to sit back down, or else he would kill her with a nearby brick. (Id.

at 220-221). According to M.F., she sat back down on her heels, and then he

turned her around, and she saw that his pants and underwear were down and his

penis exposed to her. (Id. at 221). According to M.F., the male told her “to suck it

and that it would only take five minutes.” (Id.). M.F. testified that she spun

around, covered her head, and started screaming loudly. (Id. at 222). According

to M.F., when she started screaming, the male started hitting her head, shoulders,

and arms, and when she would not stop screaming, “he said, ‘Shit,’ and he started

running away” in the direction from which they came, pulling his pants up . (Id.).

{¶42} M.F. testified that she ran to the nearby Rite Aid, and the employees

called 911. (Id. at 223-224). When the police arrived, M.F. gave them a

description of the man who attacked her. (Id. at 224-225). M.F.’s father arrived at

the Rite Aid and then took M.F. to the emergency room at St. Rita’s. (Id. at 225).

Once there, M.F.’s father told her that the police informed him “that they had

somebody for [M.F.] to I.D.” (Id. at 226).

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{¶43} An officer escorted M.F. and her father to the overhang outside the

emergency room “where the ambulances pull up” and told M.F. that the officers

“had somebody that they wanted [her] to I.D.” (Id. at 226-228). M.F. testified

that one of the officers shined a light on the face of the man, who was in the back

of a police cruiser under the well-lit overhang. (Id. at 227-229). When M.F.

started her walk home from school, it was light out, but by this time, it was dark

outside. (Id. at 227). M.F. testified that she got a “good look” at the man in the

police cruiser and had no doubt that he was the man who attacked her. (Id. at 227-

229). According to M.F., she told one officer that she “was a hundred and ten

percent sure that that was the bastard.” (Id. at 227).

{¶44} M.F. testified that she was upset and crying at Rite Aid, but by the

time she identified the man, she “was starting to calm down” but “still at the end

of [her] rope.” (Id. at 229). M.F. testified that there was no chance that being at

the end of her rope “played a factor in to [her] thinking that that was the guy.”

(Id.). M.F. also testified that when she started walking home from school, she had

her eyeglasses on, but at the emergency room, she realized she no longer had them

on. (Id. at 226, 228). Even without her eyeglasses on, she was able to “get a good

look” at the man. (Id. at 228). During her testimony, M.F. again identified

Johnson as the man who attacked her, and she had no doubts about who attacked

her. (Id. at 231, 248).

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{¶45} M.F. also used different-colored markers on State’s Exhibit 42, an

aerial view of downtown Lima, to demonstrate her and Johnson’s whereabouts

before, during, and after the attack. (Id. at 232-236). M.F. identified several

photographs, State’s Exhibits 1 through 25, including photographs of the location

where she was attacked and of her injuries. (Id. at 236-246). She identified

State’s Exhibit 27 as her coat and State’s Exhibit 26 as her eyeglasses, which were

damaged and fell off of her face during the attack. (Id. at 246-247).

{¶46} On cross-examination, M.F. testified that the man who attacked her

looked her in the face when he first approached her and asked her if he could walk

with her. (Id. at 253). She testified that when the man asked her to go to

McDonald’s with him after she stopped at The Meeting Place and resumed her

walk home, the man was facing her. (Id. at 261). According to M.F., he was

walking sideways and backwards and a “little bit in front of” her, and the man was

“trying to talk to [her] and look [her] in the face.” (Id.). M.F. testified that when

her attacker fled and turned the corner in the direction from which they came, she

lost sight of him and did not know where he went. (Id. at 262). According to

M.F., she could not remember how many times her attacker struck her, but she

knew it was multiple blows and that almost every closed-fist blow was to her face

or head, or her arms and wrists, which she used to cover her head. (Id. at 264).

M.F. testified that she and her father were at St. Rita’s for “five/ten minutes”

-21- Case No. 1-13-45

before the police arrived for the identification. (Id. at 265). The police arrived

“really quickly” after she and her father. (Id.).

{¶47} On re-direct examination, M.F. testified that the CT scan performed

on her at St. Rita’s revealed no trauma in her brain as a result of the attack. (Id. at

275-276). M.F. testified that she was approximately two to three feet from the

police cruiser outside the emergency room when she identified Johnson as her

attacker. (Id. at 276-277). According to M.F., she felt no pressure from the

officers or her father to identify the person in the police cruiser as her attacker.

(Id. at 277). M.F. testified that from when she first encountered her attacker to the

time her attacker fled, she was able to see his face completely, what he was

wearing, and about how tall he was. (Id. at 279). She again said that she had no

doubt that Johnson was the person who attacked her. (Id. at 281).

{¶48} During re-cross examination, M.F. testified that at the time she

identified Johnson sitting in the police cruiser outside the emergency room, she

was closer to the police cruiser than the “ten/twelve feet” to which Johnson’s

counsel said she testified in cross-examination.1 (Id. at 281-282). M.F. believed

that counsel for Johnson asked her in cross-examination “how far [she] had to

travel” to make the identification. (Id. at 281).

1 The distance to which M.F. testified during cross-examination is unclear from the record because neither Johnson’s counsel nor M.F. spoke in terms of units of measure, just distances between themselves and objects in the courtroom. (See July 1-3, 2013 Tr., Vol. Two, at 267).

-22- Case No. 1-13-45

{¶49} Patrolman Aaron Rode (“Rode”) of the Lima Police Department

testified that on November 28, 2012 at 5:24 p.m., he responded to the Rite Aid for

an assault report and observed M.F. there. (Id. at 286-287). Rode testified that

M.F. described her attacker to him as “a black male, in his twenties, approximately

five feet eight tall, heavy set, he had a goatee, and she said he had a very deep

voice.” (Id. at 289). M.F. also told Rode that her attacker “was wearing a black

shirt or jacket and dark colored pants,” Rode testified. (Id.). About 14 or 15

minutes after Rode arrived at Rite Aid, he broadcasted the description of M.F.’s

attacker over the radio. (Id.).

{¶50} About 12 or 13 minutes after he radioed the description, Rode heard

over the radio that Glanemann and Patrolman Boss (“Boss”) were “out on a

possible suspect,” so Rode went to their location, which was approximately three

blocks from where M.F. was attacked. (Id. at 290-291); (State’s Ex. 42). Rode

testified that the suspect appeared to match M.F.’s description of her attacker.

(July 1-3, 2013 Tr., Vol. Two, at 291). According to Rode, the suspect “was

approximately five eight. He was a black male and appeared to be in his twenties.

He was heavy-set. He had a goatee. * * * [H]e had a [deep] voice. He was

wearing a black jacket and dark colored pants.” (Id. at 291-292). Rode testified

that the suspect identified himself as “Johnny Johnson” and said he was staying at

the Lima Rescue Mission and on his way to McDonald’s for dinner. (Id. at 292).

-23- Case No. 1-13-45

{¶51} Rode testified that he and the other officers took Johnson to St.

Rita’s, and he informed M.F.’s father “that when [M.F.] was feeling comfortable

and ready to come out [the officers] might have to have her try and identify a

possible suspect.” (Id. at 292-293). According to Rode, M.F. was “very, very

positive” that Johnson was the man who attacked her, and the officers asked M.F.

“several times” to make sure that she was certain of her identification. (Id. at

293). Rode testified that M.F. was “two to three feet away” from the patrol car

containing Johnson when M.F. identified him as her attacker. (Id. at 294). Rode

testified that the officers then arrested Johnson, and the time was approximately

6:05 p.m. (Id.). Rode identified Johnson in the courtroom as the person M.F.

identified as her attacker. (Id. at 295-296).

{¶52} On cross-examination, Rode testified that he recalled at least one of

the officers shining a flashlight on Johnson’s face outside the St. Rita’s emergency

room at the time M.F. identified Johnson. (Id. at 300). Rode testified that no

other suspects were brought to St. Rita’s for M.F. to identify. (Id.).

{¶53} Glanemann testified that she and Boss were responding to Rode’s

radio call that he was handling a sexual assault of a juvenile when they spotted

Johnson, who matched the description of the suspect radioed by Rode. (Id. at

306). According to Glanemann, “about ten, ten/fifteen minutes” went by between

the time Rode radioed the suspect’s description and the time she and Boss

-24- Case No. 1-13-45

encountered Johnson. (Id. at 312). Glanemann testified that when she and Boss

stopped Johnson, he showed her identification identifying him as Johnny Johnson

and told her that he was coming from “the mission” and headed to McDonald’s.

(Id. at 307). Johnson asked why he was being stopped, and Glanemann informed

him that there was an assault of a juvenile in the area and that he matched the

description of the suspect. (Id. at 307). Glanemann testified that Johnson “said

that it wasn’t him.” (Id.). Rode arrived at the scene and transported Johnson to

the hospital for possible identification by M.F. (Id. at 307-308).

{¶54} According to Glanemann, when M.F. exited the hospital, M.F. got

within five feet of the cruiser containing Johnson, and Glanemann shined her

flashlight on Johnson’s face. (Id. at 309). Glanemann testified that the emergency

room overhang under which the cruiser was parked was “lit up” as well. (Id.).

According to Glanemann, when M.F. saw Johnson, she identified him as her

attacker, and when Glanemann “asked her if she was a hundred percent sure on it,”

M.F. said “that she was a hundred and ten percent sure it was him.” (Id.).

Glanemann testified that after M.F. identified Johnson, the officers arrested

Johnson and took him to the Allen County Sheriff’s Office, where Boss swabbed

Johnson’s hands for DNA. (Id. at 309-310). Glanemann identified Johnson

during trial as the person she stopped and as the person M.F. identified as her

attacker. (Id. at 313-314).

-25- Case No. 1-13-45

{¶55} On cross-examination, Glanemann testified that she could not recall

whether the dome light of the cruiser containing Johnson was on at the time M.F.

identified Johnson. (Id. at 320). She also testified that when she shined the light

on Johnson’s face, she “stepped back a little bit” from the cruiser and shined her

flashlight through the cruiser window. (Id. at 321).

{¶56} On re-cross examination, Glanemann testified that she could not

remember any glare caused by her shining her flashlight onto the cruiser window.

(Id. at 325). Rather, Glanemann responded affirmatively when asked if she could

see Johnson’s “face lit up very well,” and she testified that she had “[n]o doubts”

that M.F. could also see Johnson’s illuminated face. (Id.).

{¶57} Detective Scott Leland (“Leland”) of the Lima Police Department

testified that he was assigned to investigate the assault of M.F. (Id. at 326-327).

He testified that on November 29, 2012—the day following the attack—he

showed M.F. a photograph of Johnson that Leland took because he wanted M.F. to

see Johnson’s photograph “with a clear head and make sure that was the guy and

that she didn’t know him and that she didn’t confuse him with somebody else.”

(Id. at 330, 369-370). Leland testified that when he “ran a criminal history” on

Johnson, he found that Johnson “was from the Chicago area in Illinois and that he

had an extensive record in that area.” (Id. at 341). Leland identified State’s

Exhibits 35 and 36 as photographs he took on November 29, 2012 of the back of

-26- Case No. 1-13-45

Johnson’s left hand, which was bruised above the middle-finger knuckle. (Id. at

345-346).

{¶58} On cross-examination, Leland testified that he ascertained from his

conversation with Johnson that Johnson was from Chicago. (Id. at 354). Leland

identified Defendant’s Exhibits A and B as photographs of the back of Johnson’s

right hand taken at the police department. (Id. at 356-359). Leland admitted that

although he learned in his November 29, 2012 interview with Johnson that

Johnson had a cell phone at the time he was taken into custody, Leland did not

attempt to secure the cell phone until the week following that interview. (Id. at

353-354, 374-375). By that time, Johnson’s cell phone had been released to his

family and friends, per his request. (Id. at 353-354).

{¶59} Emily Miller (“Miller”) of the Ohio Bureau of Criminal Investigation

and Identification (“BCI”) testified that she received: Johnson’s shoes, jacket, and

pants; M.F.’s jacket; swabs of Johnson’s hands; hair fibers found on Johnson’s

jacket; and DNA reference standards from M.F. and Johnson.2 (July 1-3, 2013

Tr., Vol. Three, at 389). Miller testified that she did not notice blood on the swabs

of Johnson’s hands when she physically examined them, so she prepared the

swabs for DNA testing without testing them for blood. (Id. at 389-390). She

tested a couple of spots on Johnson’s shoes for blood, but those tests were

2 The parties stipulated to the chain of custody of the items tested for DNA evidence. (July 1-3, 2013 Tr., Vol. Two, at 382-384).

-27- Case No. 1-13-45

negative. (Id. at 390). Miller tested a stain on the right cuff of Johnson’s jacket,

which tested positive for blood, and Miller prepared the test swab for DNA

testing. (Id. at 390-395).

{¶60} Miller’s tests of spots on M.F.’s jacket were positive for blood, but

she did not submit those test swabs for DNA testing because M.F. “most likely,

was the only bleeder.” (Id. at 396). Miller also “did a blind swab” of the left

shoulder area of M.F.’s jacket, though she did not notice anything unusual there,

and prepared it for DNA testing because the synopsis of the alleged incident given

to Miller indicated that M.F. “was pulled by her left shoulder.” (Id. at 396-400).

Miller’s tests of a couple stains on Johnson’s pants were negative for blood, so she

did not prepare those swabs for DNA testing. (Id. at 400). Miller prepared M.F.’s

and Johnson’s DNA reference standards for inclusion with the other items to be

tested for DNA. (Id. at 401). Miller did not test the hair fibers found on Johnson’s

jacket. (Id.)

{¶61} Miller admitted on re-cross examination that her analysis did not

indicate when the blood was deposited on Johnson’s jacket, how old the blood

was, or to whom the blood belonged. (Id. at 413).

{¶62} Emily Feldenkris (“Feldenkris”) of BCI testified that she tested the

swab prepared by Miller from the right cuff of Johnson’s jacket and that the DNA

profile developed from that swab was a mixture consistent with contributions from

-28- Case No. 1-13-45

Johnson and M.F. (Id. at 441-442). According to Feldenkris, M.F. cannot be

excluded as a contributor to the DNA from the swab of the stain on Johnson’s

jacket’s right cuff. (Id. at 442). She testified that based on the national database

provided by the Federal Bureau of Investigation, the proportion of the population

that cannot be excluded as possible contributors to the mixture of DNA found on

Johnson’s jacket is one in 3,529,000 unrelated individuals. (Id.). Feldenkris

testified that she could not say for sure that it was M.F.’s DNA that was on

Johnson’s jacket; however, she could say that M.F.’s DNA profile is consistent as

being a contributor to the mixture of DNA. (Id. at 442-443).

{¶63} Feldenkris testified that she also tested the swabs of Johnson’s hands,

which resulted in DNA profiles that were mixtures consistent with contributions

from Johnson and at least one unknown individual. (Id. at 436-438). Feldenkris

excluded M.F. as a contributor to those DNA mixtures. (Id. at 438). Feldenkris

testified that she tested the swab of M.F.’s jacket, which revealed a DNA profile

that was a mixture, with the major DNA profile being consistent with M.F. and the

partial, minor DNA profile coming from at least two individuals, one of whom

was male. (Id. at 438-439). According to Feldenkris, these results were not

surprising given that M.F.’s coat was a man’s coat that M.F. purchased from a

thrift store. (Id. at 440-441).

-29- Case No. 1-13-45

{¶64} Feldenkris testified that in her work, she compares a DNA profile

from a known DNA reference standard to a DNA profile from an item of evidence

“to either include or exclude an individual as being a contributor to that DNA.”

(Id. at 430). In doing so, she generates “a statistic to determine how common or

rare a profile is.” (Id. at 443).

{¶65} On cross-examination, when Johnson’s counsel asked whether

Feldenkris could, within a reasonable degree of scientific certainty, testify that

M.F.’s DNA was on Johnson’s jacket, Feldenkris responded, “I can’t say that it’s

one hundred percent this DNA comes from [M.F.]. That’s why I generate a

statistic.” (Id. at 467). When asked again, Feldenkris responded, “I can’t say for

certain that it is from [M.F.].” (Id. at 468).

{¶66} On re-direct examination, Feldenkris testified that she could say

within a reasonable degree of scientific certainty that M.F.’s DNA is consistent

with the DNA found on Johnson’s jacket. (Id. at 469).

{¶67} After the trial court admitted the State’s exhibits into evidence and

the State rested, Johnson moved for acquittal under Crim.R. 29, and the trial court

denied his motion. (Id. at 483-484).

{¶68} Johnson’s first witness was Julie Heinig (“Heinig”), assistant

laboratory director at DNA Diagnostics in Fairfield, Ohio. (Id. at 485-486).

Heinig testified that DNA Diagnostics tested the same stained area of the right

-30- Case No. 1-13-45

cuff of Johnson’s jacket that BCI tested, but DNA Diagnostics did not test the

same sample as BCI. (Id. at 493, 495-496). According to Heinig, the DNA profile

from the tested stain on Johnson’s coat was a mixture consisting of three or more

individuals, and M.F. could not be excluded from that mixture. (Id. at 501, 513).

Reading from her forensic report, Heinig testified that “[t]he probability of

selecting an unrelated individual at random from the population having

contributed to the mixed DNA profile obtained * * * from the stain on the right

cuff of [Johnson’s] coat * * * is approximately one in [230,000] individuals.” (Id.

at 501). Heinig testified that this was more probable than BCI’s probability of one

in 3,529,000 unrelated individuals. (Id. at 501-502).

{¶69} Heinig testified that the respective proportions of the population that

BCI and DNA Diagnostics determined cannot be excluded as possible contributors

to the mixture of DNA found on Johnson’s jacket—one in 3,529,000 and one in

230,000 unrelated individuals—do not indicate within a reasonable degree of

scientific certainty that M.F.’s DNA was on Johnson’s jacket. (Id. at 511-512,

515). According to Heinig, if the proportion is less than one in the number of

individuals on the earth—approximately seven billion individuals—then she

cannot say within a reasonable degree of scientific certainty that the individual is

the contributor of the DNA. (Id. at 512). Heinig explained the differences in the

data collected and analyzed by BCI and DNA Diagnostics, and she noted that BCI

-31- Case No. 1-13-45

and DNA Diagnostics did not “get the same DNA profile” from Johnson’s jacket.

(Id. at 502-511).

{¶70} On re-cross examination, Heinig responded negatively when asked if

she could “say with any degree of reasonable scientific certainty that * * *

Johnson’s DNA is on his coat.” (Id. at 535).

{¶71} Johnson was the final witness. He testified that his hometown is

Chicago, Illinois and that he moved to Lima in the middle of August 2012 at the

prompting of his girlfriend, who lived in Lima with her parents. (July 1-3, 2013

Tr., Vol. Four, at 547, 549). According to Johnson, on November 28, 2012, he

took the bus to the Lima Mall in the morning and “stayed there mostly the whole

day,” until “five something.” (Id. at 550-551). Johnson testified that he took the

bus back to the Lima Rescue Mission where he was residing “close to five o’clock

probably,” stayed there “for about a good twenty minutes and smoked a cigarette,”

then departed for McDonald’s. (Id. at 551). Johnson was residing at the Rescue

Mission because his girlfriend’s parents wished that he no longer live with them

and their daughter, Johnson’s girlfriend. (Id. at 548).

{¶72} Johnson testified that on the evening of November 28, 2012, he was

wearing black khakis, black dress shoes, a hoodie, and a jacket. (Id. at 552-553).

He testified that as he was walking to McDonald’s, he was stopped by police

officers who told him that a young lady was assaulted and that he matched the

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description of the suspect. (Id. at 554-555). According to Johnson, he “told them

it wasn’t [him],” but the officers looked at his identification and took him to St.

Rita’s. (Id. at 555).

{¶73} Johnson testified that at St. Rita’s, the officers parked “where the

ambulances come in.” (Id.). According to Johnson, M.F. came out of the

entrance, stood “like ten feet from [him] in the car,” and, as the officers “put a

flashlight to the window,” responded, “Yes,” when the officers asked her if

Johnson was the person who attacked her. (Id. at 555-556). The officers then

arrested Johnson. (Id. at 556-557). According to Johnson, he had never seen M.F.

before she identified him at St. Rita’s. (Id. at 556, 561). Johnson testified that he

was interviewed by Leland the next morning and told him that he “was texting

[his] girl the whole time.” (Id. at 557). He testified that he was texting with his

girlfriend on his cell phone “[l]ike, the whole day” and “[l]ike, every three

minutes.” (Id. at 557-558).

{¶74} Johnson identified State’s Exhibit 35 and Defendant’s Exhibit A as

photographs of his left hand, which he said reflect a scar “on the top part” of his

hand that has “been there for a long time.” (Id. at 558-559). He showed his hands

to the jury, along with a “bright pink/red” birthmark on his left eyebrow. (Id. at

559-560). Johnson’s counsel showed him photographs of M.F. from November 28

and 29, 2012. (Id. at 561). Johnson responded, “No, absolutely not,” when

-33- Case No. 1-13-45

Johnson’s counsel asked him, “[P]oint blank, did you do that to that young lady?”

(Id.). Johnson testified that he was nowhere near the alley and abandoned

apartment building where M.F. was assaulted. (Id. at 562).

{¶75} On cross-examination, Johnson acknowledged that he is from

Chicago and that he is “[a]round five foot eight.” (Id. at 562). He testified that on

November 28, 2012, he was in Lima, had a goatee, and was wearing a black coat

and black pants. (Id. at 562-563). Johnson also acknowledged that he gave

Leland permission to look at his cell phone and that he signed a slip authorizing

his girlfriend to take his cell phone. (Id. at 565). After first responding, “Yea,”

when asked if he recalled telling Leland that he was at the Lima Mall, Johnson

said he could not recall telling Leland if he was at the Lima Mall or not. (Id. at

566). Johnson did not remember telling Leland that he was outside the Rescue

Mission “from five to six-thirty.” (Id. at 565). Johnson did not recall Leland

telling Johnson during the interview that he saw a bruise on Johnson’s hand, nor

did Johnson recall telling Leland in response that he slept on his hands the

preceding night. (Id. at 573-574).

{¶76} After Johnson testified and the trial court admitted Johnson’s

exhibits, the defense rested, and Johnson renewed his Crim.R. 29 motion for

acquittal, which the trial court denied. (Id. at 576). Counsel gave their closing

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arguments, and the trial court charged the jury. (Id. at 584-641). The jury found

Johnson guilty of Counts One and Two. (Id. at 643).

{¶77} We first review the sufficiency of the evidence supporting the

identity elements of Johnson’s attempted-rape and kidnapping offenses. See State

v. Velez, 3d Dist. Putnam No. 12-13-10,

. In her testimony,

M.F. described the multiple opportunities she had to observe her attacker before

and during the attack. When M.F. first encountered her attacker on her walk

home, he came within “half an arm’s distance” of her, and M.F. continued to keep

him in her line of sight during their walk together. M.F. gave Rode a specific

description of her attacker, and within minutes of the attack, officers located

Johnson, who matched M.F.’s description, approximately three blocks from the

site of the incident. M.F. identified Johnson as her attacker outside of the

emergency room within an hour of the attack. During trial, M.F. once again

identified Johnson as her attacker.

{¶78} M.F.’s attacker told her during their walk together that he recently

moved to Lima from Chicago, and Johnson told Leland that he was from Chicago.

The State’s expert witness concerning forensic DNA analysis testified that M.F.

could not be excluded from the DNA mixture found on Johnson’s jacket. She

testified that the proportion of the population that cannot be excluded as possible

-35- Case No. 1-13-45

contributors to the DNA mixture found on Johnson’s jacket is one in 3,529,000

unrelated individuals.

{¶79} Viewing this evidence in a light most favorable to the prosecution,

we conclude that a rational trier of fact could have found the identity element of

the attempted-rape and kidnapping offenses proven beyond a reasonable doubt.

{¶80} Having concluded that sufficient evidence supports Johnson’s

convictions, we next address his argument that his convictions were against the

manifest weight of the evidence. Because Johnson disputes only the issue of

identity, we will again address only the identity elements of the offenses. We

summarized in our discussion of the sufficiency of the evidence above the

identity-related evidence weighing in favor of Johnson’s convictions. Johnson

argues that when M.F. identified Johnson outside of the emergency room, she

“had just gone through a horrible, physical attack” and was “in a highly emotional

state.” (Appellant’s Brief at 21). He argues that aside from the suggestive show-

up identification, “[t]here was no other corroborating evidence presented in this

case * * *.” (Id.).

{¶81} While M.F. testified that she was “at the end of [her] rope” and not

wearing her eyeglasses when she identified Johnson outside the emergency room,

she likewise testified that she got within two to three feet of the cruiser containing

Johnson under the well-lit overhang, got a “good look” at Johnson’s face as an

-36- Case No. 1-13-45

officer shined a light on it, and had no doubts that Johnson was her attacker.

Rode’s and Glanemann’s accounts of the identification were consistent with

M.F.’s. Johnson discounts this testimony, as well as M.F.’s in-court identification

of Johnson as her attacker and Rode’s and Glanemann’s in-court identifications of

Johnson as the person who M.F. identified as her attacker.

{¶82} Johnson overlooks the detailed nature and accuracy of M.F.’s

description of her attacker. That description allowed officers to locate Johnson

within minutes. Johnson also ignores the importance of the Chicago-related

testimony. M.F. testified that her attacker told her that he had just moved to Lima

from Chicago. Leland testified that he learned after speaking with Johnson that

Johnson was from Chicago. Johnson testified that he moved to Lima from

Chicago in mid-August 2012—only three and a half months before the date M.F.

was attacked.

{¶83} Johnson argues that neither his nor the State’s expert witness

concerning forensic DNA analysis could testify within a reasonable degree of

scientific certainty that M.F.’s DNA was on Johnson’s jacket. However, Johnson

overlooks that both expert witnesses testified that they could not exclude M.F. as a

contributor to the DNA mixture found on Johnson’s jacket. In fact, Johnson’s

expert witness testified to a one in 230,000 probability of selecting an unrelated

individual at random from the population having contributed to the mixed DNA

-37- Case No. 1-13-45

profile found on Johnson’s jacket. The State’s expert witness testified to a one in

3,529,000 probability. While the experts’ inability to testify within a reasonable

degree of scientific certainty that M.F.’s DNA was on Johnson’s jacket “weakened

the certainty of the DNA evidence, * * * the jury remained free to assign this

evidence whatever weight it deemed proper in arriving at the verdict.” State v.

Lang,

,

.

{¶84} Johnson testified that he did not attack M.F. However, Johnson’s

testimony was underwhelming compared to the evidence that he was M.F.’s

attacker. Moreover, because the jury was in the best position to assess the

credibility of the witnesses, “we afford great deference to the jury’s determination

of witness credibility.” State v. V.J., 10th Dist. Franklin No. 13AP-799, 2014-

Ohio-2618, ¶ 32. For the reasons above, the evidence does not weigh heavily

against Johnson’s convictions, and we cannot conclude that the jury clearly lost its

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

be reversed and a new trial ordered.

{¶85} Johnson’s fourth assignment of error is overruled.

Assignment of Error No. III

That the State of Ohio committed misconduct in its closing argument thereby prohibiting the defendant from receiving a fair trial.

-38- Case No. 1-13-45

{¶86} In his third assignment of error, Johnson argues that the State

committed misconduct in its rebuttal closing argument by arguing that Johnson

had “every motive to lie” in his testimony and that in order to find Johnson guilty,

the jury needed to determine that M.F. lied in her testimony. We disagree.

{¶87} The test regarding prosecutorial misconduct during closing

arguments is whether the remarks were improper and, if so, whether they

prejudicially affected the defendant’s substantial rights. State v. Davis,

,

, ¶ 231, citing State v. Smith,

(1984).

“In making this determination, an appellate court should consider several factors:

(1) the nature of the remarks, (2) whether an objection was made by counsel, (3)

whether corrective instructions were given by the court, and (4) the strength of the

evidence against the defendant.” State v. Braxton,

(8th

Dist. 1995).

{¶88} “Misconduct of a prosecutor at trial will not be considered grounds

for reversal unless the conduct deprives the defendant of a fair trial.”

citing

State v. Apanovitch,

(1987) and State v. Maurer,

(1984). “The touchstone of the analysis ‘is the fairness of the trial, not the

culpability of the prosecutor.’” Davis at ¶ 231, quoting Smith v. Phillips,

,

(1982).

-39- Case No. 1-13-45

{¶89} “Parties have wide latitude in their closing statements, particularly

‘latitude as to what the evidence has shown and what inferences can be drawn

from the evidence.’” State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-

Ohio-7085, ¶ 13, quoting State v. Diar,

,

, ¶

213. “‘A prosecutor may comment upon the testimony and suggest the conclusion

to be drawn by it, but a prosecutor cannot express his personal belief or opinion as

to the credibility of a witness or as to the guilt of an accused, or go beyond the

evidence which is before the jury when arguing for conviction.’” State v. Manns,

5th Dist. Richland No. 08 CA 101,

, ¶ 20, citing State v. Smith,

12th Dist. Butler No. CA2007-05-133,

. See also State v.

Stober, 3d Dist. Putnam No. 12-13-09,

, citing State v.

Hand,

,

, ¶ 16.

{¶90} For example, a prosecutor “can bolster his own witnesses, and

conclude by saying, in effect, ‘The evidence supports the conclusion that these

witnesses are telling the truth.’” State v. Draughn,

(5th

Dist. 1992). See also State v. Jeffery, 2d Dist. Montgomery No. 24916, 2013-

Ohio-504, ¶ 20, citing Draughn. However, a prosecutor “cannot say, ‘I believe

these witnesses,’ because such argument invades the province of the jury, and

invites the jury to decide the case based upon the credibility and status of the

prosecutor.”

, citing State v. Smith,

(1984). See

-40- Case No. 1-13-45

also Jeffery at ¶ 20, citing Draughn. Similarly, a prosecutor “can say, ‘The

evidence supports the conclusion that the defendant is lying, is not telling the

truth, is scheming, has ulterior motives, including his own hide, for not telling the

truth.’”

, citing State v. Strobel,

(3d

Dist. 1988). The prosecutor “may not say, ‘I believe the defendant is lying,’ for the

same reasons as above.”

{¶91} In his closing argument, counsel for Johnson explained to the jury

that the only contested issue in the case was identity—namely, whether it was

Johnson who attacked M.F. (July 1-3, 2013 Tr., Vol. Four, at 593-594). At one

point, Johnson’s counsel suggested that the jury did not “have to think that [M.F.

is] lying” to find that the State failed to prove that Johnson attacked M.F. (Id. at

594). However, he later said, “She’s wrong. It’s not him. She says it’s him. You

heard him testify. ‘It’s not me. * * *.’” (Id. at 595-596). And still later,

Johnson’s counsel said, “[M.F.] has not lied to you. I don’t think she’s lied to

you.” (Id. at 602).

{¶92} In her rebuttal closing argument, counsel for the State addressed

Johnson’s counsel’s implication that M.F. was mistaken concerning the identity of

her attacker:

[State’s Counsel]: Folks, when you look at the reasons, the motives,

people had in testifying up here, when you look at

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all of the evidence, all of these coincidences, the

unluckiest guy in the world matched in every

single solitary description and word. Think about

all those things. Think about [M.F.] sitting on

this stand and how direct she was and, again, not

one bit of motive to come in here and lie to you.

Again, [Johnson’s counsel] wants to characterize

it as being mistaken. She’s an intelligent girl.

She’s no dummy. She didn’t succumb to some

plant in her head. She’s not the eye witness who

thinks they saw somebody in a brief moment.

She’s the eye witness that walked for several

blocks with this individual and who was actually

attacked by this individual. The one word that

you cannot for a second describe [M.F.] with is

liar. Every single solitary shred of evidence

backs up everything that she said. Everything.

The only piece of evidence that didn’t was the

self-serving statements of the defendant who has

every motive to lie.

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In order to find this defendant not guilty you have

to choose to believe that [M.F.] got on the stand

and lied to you.

[Johnson’s Counsel]: Objection.

[Trial Court]: Overruled.

[State’s Counsel]: I told you in the beginning, and Judge is going to

tell you again, the testimony of one witness, if

believed, is proof beyond a reasonable doubt. In

this case we do have more than [M.F.]. But, at

the end of the day do you believe [M.F.]? Ask

yourselves that question, folks. When you do,

you’ll find that this defendant is, in fact, guilty

beyond a reasonable doubt of both the Attempted

Rape and Kidnapping of [M.F.]. The State of

Ohio is asking you to do just that. Thank you so

much for your consideration.

(Id. at 626-627).

{¶93} The State’s counsel’s statements during rebuttal closing argument do

not amount to prosecutorial misconduct. She never expressed a personal belief or

opinion as to the credibility of M.F. or Johnson or as to Johnson’s guilt. Rather,

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she instructed the jurors to ask themselves whether they believed M.F. The State’s

counsel permissibly argued that the evidence supported M.F.’s testimony. See

Draughn,

. Conversely, she pointed out that the only

evidence contradicting M.F.’s testimony was Johnson’s testimony, implying that

Johnson’s testimony was unsupported by the remaining evidence. This was also

permissible. See

Finally, it was permissible for the State’s counsel to suggest

that Johnson’s motives to lie are the reasons why Johnson’s testimony was

inconsistent with M.F.’s testimony and the other evidence.

{¶94} We conclude that the State’s counsel’s remarks in this case were not

improper. They were not objectionable, and no corrective instruction was

necessary.

{¶95} Johnson’s third assignment of error is overruled.

Assignment of Error No. II

That the trial court committed error by failing to merge the offenses of kidnapping and attempted rape in this case pursuant to ORC 2941.25.

{¶96} In his second assignment of error, Johnson argues that the

kidnapping and attempted-rape offenses of which he was convicted were allied

offenses of similar import and that the trial court erred by not merging them for

purposes of sentencing. Specifically, Johnson argues that the actions of M.F.’s

assailant “are part of one continuous course of conduct.” (Appellant’s Brief at

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18). According to Johnson, “The physical assault and movement of the victim are

all in furtherance of and immediate to the attempt to force the victim to perform an

act or [sic] oral sex.” (Id.). We agree.

{¶97} Whether offenses are allied offenses of similar import is a question

of law that this court reviews de novo. State v. Stall, 3d Dist. Crawford No. 3-10-

12,

, citing State v. Brown, 3d Dist. Allen No. 1-10-31,

.

{¶98} R.C. 2941.25, Ohio’s multiple-count statute, states:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such offenses,

but the defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in two or

more offenses of the same or similar kind committed separately or

with a separate animus as to each, the indictment or information may

contain counts for all such offenses, and the defendant may be

convicted of all of them.

In determining whether offenses are allied offenses of similar import under R.C.

2941.25, the court must first determine whether it is possible to commit both

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offenses with the same conduct. State v. Johnson,

, 2010-

Ohio-6314, ¶ 48. “If the multiple offenses can be committed with the same

conduct, then the court must determine whether the offenses were committed by

the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id.

at ¶ 49, quoting State v. Brown,

,

, ¶ 50

(Lanzinger, J., dissenting).

{¶99} If it is possible to commit the offenses with the same conduct and the

defendant did, in fact, commit the multiple offenses with the same conduct, then

the offenses are allied offenses of similar import and will merge. Id. at ¶ 50.

However, “if the court determines that the commission of one offense will never

result in the commission of the other, or if the offenses are committed separately,

or if the defendant has separate animus for each, then according to R.C.

2941.25(B), the offenses will not merge.” (Emphasis sic.) Id. at ¶ 51. “‘The

defendant bears the burden to prove entitlement to merger.’” State v. Love, 3d

Dist. Marion No. 9-13-09,

, quoting State v. Forney, 2d Dist.

Champaign No. 2012-CA-36,

.

{¶100} Here, Johnson was convicted of attempted rape and kidnapping.

The State concedes that it is possible to commit attempted rape and kidnapping

with the same conduct. (Appellee’s Brief at 14). See State v. Lindsay, 5th Dist.

Richland No. 10-CA-62,

, citing State v. Donald, 57 Ohio

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St.2d 73 (1979), syllabus. Therefore, we will proceed to the second step of the

Johnson analysis and determine whether the offenses were committed by the same

conduct.

{¶101} In State v. Logan, the Supreme Court of Ohio provided guidance

concerning when kidnapping and another offense of the same or similar import

will merge:

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:

(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

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from that involved in the underlying crime, there exists a separate

animus as to each offense sufficient to support separate convictions.

, syllabus. See also Stall,

. The

Court in Logan added, “Secret confinement, such as in an abandoned building or

nontrafficked area, without the showing of any substantial asportation, may, in a

given instance, also signify a separate animus and support a conviction for

kidnapping apart from the commission of an underlying offense.” Logan at 135.

{¶102} In Logan, as the victim “was walking down the street she was

accosted by defendant, a casual acquaintance, at the entrance to an alley.” (Id. at

126). After the victim refused to accept some pills offered to her by the defendant,

the “defendant produced a knife, held it to her throat, and forced her into the alley.

Under such duress, she accompanied him down the alley, around a corner, and

down a flight of stairs, where he raped her at knifepoint.” Id. at 127.

“Immediately following the rape, defendant released her.” Id. The Court held that

the defendant’s “detention and asportation of the victim was incidental to the

crime of rape,” therefore demonstrating “but a single animus.” Id. at 135-136.

The Court reasoned that “the restraint and movement of the victim had no

significance apart from facilitating the rape” and that “[t]he detention was brief,

the movement was slight, and the victim was released immediately following the

commission of the rape.” Id. at 135. The Court also said that it could not “find

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that the asportation of the victim down the alley to the place of rape presented a

substantial increase in the risk of harm separate from that involved in the rape.”

Id.

{¶103} In State v. Price, during an evening of consuming beer and

swimming in a pond, the appellant asked the victim “if she wanted to engage in

sexual intercourse.”

(1979). When she refused, the

“appellant threatened to drown her if she did not take a walk with him,” but the

victim returned to the car.

“Shortly thereafter, appellant returned to the car,

pulled [the victim] from the back seat to an area nearby behind some bushes,

forced her to the ground, removed her pants, and raped her.”

In holding “that

the rape and the kidnapping * * * were neither committed separately nor with a

separate animus as to each,” the Court reasoned, “The force by which appellant

removed [the victim] from the car to behind a nearby bush to engage in sexual

conduct, as required under the rape statute, is indistinguishable from the force by

which appellant restrained [the victim] of her liberty, as required under the

kidnapping statute.”

. “In addition, there was no act of asportation

distinct from the rape either in time or in function.”

{¶104} In State v. Collins, the victim declined Collins’s invitation when he

“asked if she ‘wanted to party,’” but Collins nevertheless “proceeded to follow

[the victim] down an alley she was using to get home.” 4th Dist. Ross No.

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01CA2590,

, ¶ 3. “Collins came up behind her, put his hand over

her mouth, grabbed her around the waist, and threw her to the ground.”

“He

beat her repeatedly in the head and raped her, both vaginally and anally.”

“Collins ordered the victim to stay in the alley for five minutes, and he left.”

Despite Collins’s order, the victim left the alley “as soon as he was gone.” Id. at ¶

25. “The examining doctor testified that the victim had bruises to the right side of

her face and torso.” Id. The Fourth District Court of Appeals concluded that the

trial court erred by not merging the kidnapping and rape offenses because “a

separate animus did not exist as to each offense.” Id. at ¶ 26-27. The court

reasoned that Collins’s “restraint of his victim was merely incidental to the rape,

and that Collins did not subject the victim to a substantial increase of harm that

was separate and apart from that involved in the rape.” Id. at ¶ 26.

{¶105} In State v. Bohannon, the First District Court of Appeals held that

“the trial court erred in sentencing Bohannon for kidnapping and the other charged

offenses” because “with respect to each victim, kidnapping was an allied offense

of similar import to the other charged offenses and was not committed separately

or with a separate animus as to each offense.” 1st Dist. Hamilton Nos. C-070859

and C-070860,

, ¶ 17. For example, Bohannon was found guilty

of and sentenced for raping and kidnapping a victim who “testified that he had

been walking home when Bohannon approached him on the street, pointed a gun

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at him, and directed him up a driveway and behind a house, where Bohannon

raped him.” Id. at ¶ 10. The victim “testified that, from the house, he had been

able to see the street he had been walking on.” Id. Bohannon was found guilty of

and sentenced for raping and kidnapping another victim who “testified that he had

been walking home when Bohannon approached him, pointed a gun at his head,

and forced him down a driveway and down the side of a house to a storage shed

next to the house” where Bohannon raped him. Id. at ¶ 11. The victim testified

that “the shed had not been very far from the road” from which Bohannon took

him. Id.

{¶106} In State v. Hogan, as the victim was “walking home, she heard

footsteps behind her. The man approaching her from behind threatened her with a

weapon and told her ‘don’t look at my face or I [will] kill you.’” 10th Dist.

Franklin No. 09AP-1182,

, ¶ 17. The man grabbed the victim

from behind, “forced [her] into a wooded area,” and sexually assaulted her. Id. at

¶ 2. “Later the man told her to perform oral sex on him, which she refused to do.”

Id. at ¶ 18. The Tenth District Court of Appeals held that R.C. 2941.25 “barred

[the defendant’s] being convicted of both the sexual assaults and the kidnapping”

because the incident “was not of long duration,” “[a]ll of the restraint and removal

of [the victim] was done to expedite the sexual assault,” and the trial testimony

indicated “no other animus.” Id. at ¶ 49.

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{¶107} In this case, M.F. testified that when she and Johnson began

walking down the intersecting alley to get back out to the street on their way to

McDonald’s, Johnson grabbed her arm, started hitting her on her face with his fists

multiple times, and told her that she was “going to suck his dick.” (July 1-3, 2013

Tr., Vol. Two, at 220-221). Johnson then “move[d] [her] from the alley to under a

porch of the apartment building” that abutted the alley and threatened to kill her if

she screamed. (Id. at 220). Under the porch, M.F.’s back was to Johnson, and

when she attempted to pull herself up with the help of a wire fence, he told her to

sit back down or else he would kill her with a brick. (Id.). When Johnson turned

M.F. around, exposed his penis to her, and told her “to suck it and that it would

only take five minutes,” M.F. spun around, covered her head, and began

screaming. (Id. at 221-222). Johnson then started hitting M.F.’s head, shoulders,

and arms, and when she did not stop screaming, he fled. (Id.).

{¶108} This case bears similarities to Logan, Price, Collins, Bohannon, and

Hogan. Johnson’s movement and restraint of M.F. was merely incidental to the

attempted rape. Based on M.F.’s testimony, when Johnson first began hitting her

in the alley, he made it clear he was attempting to force M.F. to perform fellatio on

him. After he began hitting M.F., Johnson moved M.F. to an area under a porch

on the exterior of an apparently abandoned apartment building. Once underneath

the porch, Johnson threatened to kill M.F. with a brick when she attempted to pull

-52- Case No. 1-13-45

herself up, exposed his penis to M.F., and ordered her to perform fellatio on her.

This sequence of events—and particularly Johnson’s stated intentions during the

attack—demonstrates that Johnson’s restraint and movement of M.F. had no

significance apart from facilitating the rape. See Logan,

.

{¶109} Borrowing from the Supreme Court’s reasoning in Price, the force

by which Johnson moved M.F. from the alley to under the porch to attempt to

engage in sexual conduct, as required under the rape statute and attempt statute, is

indistinguishable from the force by which Johnson restrained M.F. of her liberty,

as required under the kidnapping statute. Price,

. There was

no act of asportation distinct from the attempted rape either in time or in function.

{¶110} Johnson’s restraint of M.F. was not prolonged so as to demonstrate

a significance independent of the attempted-rape offense. It is unclear from the

record precisely how long Johnson’s attack of M.F. lasted. However, judging by

the times of various events to which M.F. and the officers testified—such as when

M.F. commenced her walk home and when Rode responded to the Rite Aid—it is

clear that the attack lasted only minutes. More importantly, it is clear from M.F.’s

testimony that Johnson restrained M.F. only as long as was necessary for him to

attempt to rape her. According to M.F., after Johnson began hitting her in the

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alley, he moved her to the area under the porch, and he fled when she would not

stop screaming after he ordered her to perform fellatio on him.

{¶111} Johnson’s confinement of M.F., while perhaps secretive or in a

relatively “nontrafficked area,” does not demonstrate a significance independent of

the attempted-rape offense. That is, the confinement was merely incidental to the

attempted rape taking place at the time of Johnson’s movement and confinement

of M.F. Moreover, the confinement in this case was no more secretive than the

confinements in Logan, Price, Collins, Bohannon, and Hogan. The area under the

porch to which Johnson moved M.F. was outdoors and faced a parking area that

was behind the abandoned apartment building and at the intersection of two alleys.

(See State’s Exs. 1, 42). In Logan, the defendant forced the victim “down the

alley, around a corner, and down a flight of stairs.” 60 Ohio St.2d at 127. In

Price, the defendant pulled the victim from the back seat of a car “to an area

nearby behind some bushes.” 60 Ohio St.2d at 137. In Collins, the defendant put

his hand over the victim’s mouth and threw her to the ground in an alley “in the

early morning hours.”

, at ¶ 3. In Bohannon, the defendant

directed one of his victims “up a driveway and behind a house,” and he forced

another victim “down a driveway and down the side of a house to a storage shed

next to the house.”

, at ¶ 10, 11. In Hogan, the defendant forced

the victim “into a wooded area.”

, at ¶ 2.

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{¶112} Nor was Johnson’s movement of M.F. “substantial so as to

demonstrate a significance independent of” the attempted-rape offense. Logan,

, syllabus. It is unclear from the record precisely what distance

Johnson moved M.F. However, the abandoned apartment building under whose

porch Johnson moved M.F. was nearby and abutted the alley in which Johnson

first began attacking M.F. M.F.’s markings on the aerial map introduced by the

State at trial suggest that the distance was less than half a block and less than the

length of a building on the other side of the alley from the apartment building.

(State’s Ex. 42). Therefore, it does not appear that M.F. was moved any further

than the victim in Logan, for example. See 60 Ohio St.2d at 127. And as in

Logan, Johnson was on foot when he moved M.F. See id.

{¶113} Finally, the asportation and restraint of M.F. did not subject her to

“a substantial increase in risk of harm separate and apart from that involved in the

underlying crime” of attempted rape. (Emphasis added.) Logan at syllabus. Once

again, based on M.F.’s testimony, from the moment Johnson began hitting M.F. to

the time he fled, “[a]ll of the restraint and removal of [M.F.] was done to expedite”

the attempted rape. Hogan,

, at ¶ 49. Therefore, the risk of harm

to which M.F. was subjected was not separate from that involved in the attempted

rape. The State argues that by restraining M.F. under the porch, Johnson subjected

her to a substantial increase in risk of harm “because she could have been beaten

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even more severely, beaten with a brick, and possibly even killed * * *.”

(Appellee’s Brief at 15). Johnson’s restraining M.F. in a relatively secluded

location did not itself substantially increase her risk of harm. Indeed, the victims

in Logan, Price, Collins, Bohannon, and Hogan were restrained in relatively

secluded locations.

{¶114} For these reasons, we hold that the kidnapping and attempted-rape

offenses of which Johnson was convicted were allied offenses of similar import.

Therefore, the trial court erred by not merging those offenses for purposes of

sentencing.

{¶115} Johnson’s second assignment of error is sustained.

{¶116} For the foregoing reasons, the judgment of the Allen County

Common Pleas Court is affirmed in part and reversed in part, and the matter is

remanded to the trial court for further proceedings consistent with our disposition

of the second assignment of error.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

ROGERS, J., concurs separately.

{¶117} I concur with the result reached by the majority. I write separately

because I believe the majority failed to recognize a serious misstatement by the

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prosecutor in closing argument which warranted a corrective instruction from the

trial court.

{¶118} As quoted by the majority, the prosecutor told the jury: “The one

word that you cannot for a second describe [M.F.] with is liar. * * * In order to

find this defendant not guilty you have to choose to believe that [M.F.] got on the

stand and lied to you.” Maj. Op. ¶ 92.

{¶119} To lie is “to make an untrue statement with the intent to deceive” or

“to create a false or misleading impression: convey an untruth.” Webster’s Third

New International Dictionary 1305 (2002). To say that a statement is a lie is to

characterize the person making it as a liar – one who is intentionally untruthful.

{¶120} The State cannot shift the burden of proof to the defendant. State v.

Sparks, 3d Dist. Union No. 14-01-03,

, *3 (Aug. 16, 2001). In

this case, the identity of the offender was disputed. The victim testified that the

defendant was the perpetrator. However, the victim could be wrong about her

identification of the defendant without being untruthful. She might have simply

been mistaken as to the identity, or confused because of the manner in which she

was first presented with a suspect. In fact, that was the argument of the defense.

{¶121} A jury might be willing to conclude that a victim was mistaken

about the identity of her attacker. A jury might not be satisfied that the victim

could positively identify the defendant as her attacker. But a jury might well be

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reluctant to render a verdict which implies that they are finding the victim to be a

liar. To tell the jury that they must find that she intentionally lied to them is not

correct. The defendant is not required to prove that the State’s witnesses are lying.

Indeed, the defendant is not required to prove anything – that burden is squarely

on the State. The prosecutor’s comments amounted to telling the jury that if it

doubted that the victim was lying, it would be required to find the defendant

guilty. This increases the possibility that the sympathetic victim will receive the

benefit of the doubt, when it is the defendant that is entitled to the benefit of any

reasonable doubt. Thus, the statement impermissibly shifted the burden of proof.

{¶122} Furthermore, for the prosecutor to tell the jury that to find the

defendant not guilty they would have to “choose to believe” that the victim lied to

them is the same as telling the jury that the prosecution believes her so you should

too! This is equivalent to a statement of personal belief and/or opinion as to the

credibility of the witness and is improper. See State v. Williams,

(1997).

{¶123} I believe that the trial court should have instructed the jury that this

statement by the prosecutor was an incorrect statement of the law, and that the jury

was entitled to find that M.F. was mistaken without the additional burden of

finding her to be a liar. However, improper statements by prosecutors during

closing arguments are only grounds for reversal where “it so taints the proceedings

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as to deprive the defendant of a fair trial.” State v. Manley, 3d Dist. Allen No. 1-

11-04,

.

{¶124} Considering the totality of the evidence and arguments of counsel, I

do not find the error sufficiently prejudicial that it would warrant reversal in this

case.

SHAW, J., concurs in part and dissents in part.

{¶125} I concur with the lead opinion entirely in the analysis and

disposition of the first, third and fourth assignments of error. I do not concur with

anything in the separate concurring opinion. I respectfully dissent as to the

disposition of the second assignment of error by the majority regarding the merger

of the kidnapping and attempted rape convictions in this case.

{¶126} The victim testified that the appellant started hitting her in the alley,

told her she was going to “suck his dick” then “moved” her from the alley into the

location under the porch and told her that if she screamed he was going to kill her.

(Tr. 220). She then found herself down on the ground under the porch but was

facing away from the appellant, who she testified was “behind me and I can’t see

what he’s doing.” (Tr. 220). The victim then testified that the porch had a “wire

fence enclosing it” and that when she put her hand on the fence to “pull myself up

on my knees” that appellant then told her to “get back down or else I’ll kill you”

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and then threatened to kill her, first with a “stick” and then the appellant stated

“No I’ll kill you with this brick here.” (Tr. 220) In response, the victim stated she

then sat “back down on my heels.” (Tr. 221)

{¶127} It is notable that the threat to kill the victim with the brick was

issued prior to the initiation of any attempted sexual conduct by appellant, was not

issued in conjunction with a demand for any sexual act as in “turn around and suck

my dick or I’ll kill you with this brick” but instead was made solely to prevent her

from breaking free from her restraint as she attempted to get up on her knees. At

that point the victim was clearly being “restrained of her liberty by threat of force

under circumstances that either created a substantial risk of serious physical harm

or caused physical harm” exactly as alleged in the charge of Kidnapping set forth

in Count Two of the Indictment, and with a separate animus related solely to the

Kidnapping charge sufficient to justify the trial court’s determination of same.

{¶128} With the victim still down on her heels, the appellant then “turned”

the victim around to face him as he now stood in front of her with his pants down

and penis exposed whereupon he demanded fellatio from her (Tr. 221), thus

clearly establishing the elements of Attempted Rape exactly as charged in Count

One of the Indictment. However, in response, the victim then testified “I spin

around and I cover my head and I start screaming” thus, remaining on the ground

but again facing away from the appellant. (Tr. 221)

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{¶129} The appellant then began beating her about the face, shoulders and

arms with his fists for a period of time until the appellant eventually just said

“shit,” pulled up his pants and fled. (Tr. 222) There is no indication in the

testimony of a further threat or demand for any sexual conduct while this beating

was being administered nor is there any indication that the appellant tried to

physically grab her head or hair, turn her around again to face him or otherwise

attempted to forcibly impose fellatio upon her, which at that point was not likely

to be physically possible while he was beating her with his fists on her head and

shoulders from behind.

{¶130} Even assuming arguendo that the appellant’s initial threat to kill the

victim with a brick so close in time to his initial declaration of intent to force

sexual conduct upon her in the alley, could only be incorporated into the single

animus of the attempted rape, the beating administered to the victim by the

appellant at the end of the incident as set forth above - inflicted upon a restrained

victim down on her heels and facing away from the appellant with her head

covered - is in my view, far more reasonably construed as an independent venting

of violent frustration upon the victim after the failure of the attempted rape, rather

than as part of any continuing effort or purpose to forcibly compel or attempt a

sexual act.

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{¶131} In any event, it is my view that both the foregoing threat to kill the

victim with a brick prior to the initiation of any sexual coercion and the later

physical assault upon a victim already restrained and subdued by the appellant

after a failed attempt at sexual coercion, each subjected the victim to a substantial

increase in risk of harm separate and apart from that involved in the attempted

rape, sufficient to support a finding of separate animus by the trial court under the

Logan test cited by the majority.

{¶132} In addition, I believe the instances of intermittent threats and

violence in the present case are distinguishable from a number of the cases cited

by the majority in support of merger, many of which seem to focus upon a single

and continuous threat, force or restraint used to physically accomplish and actually

perform the particular sexual act being forced upon the victim.

{¶133} For all of the foregoing reasons, I believe the record is sufficient to

support the trial court’s determination of a separate animus for Kidnapping and

Attempted Rape under the language of the specific statutory sections set forth in

Count One and Count Two of the Indictment in this case. Accordingly, I would

overrule the second assignment of error and affirm the conviction and sentence of

the trial court in its entirety.

/jlr

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