[Cite as State v. James,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2016CA00144 : VARLONUS JAMES : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, case no. 2015CR2009

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 26, 2017

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JOHN D. FERRERO, JR. EUGENE M. CAZANTES STARK CO. PROSECUTOR 101 Central Plaza S., Ste. 1000 RONALD MARK CALDWELL Canton, OH 44702 110 Central Plaza S., Ste. 510 Canton, OH 44702-1413 Stark County, Case No. 2016CA00144 2

Delaney, P.J.

{¶1} Appellant Varlonus James appeals from the judgment entry of conviction

and sentence entered in the Stark County Court of Common Pleas on May 19, 2016.

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on December 12, 2015 when victim Jane Doe went to

appellant’s apartment for a party. After other guests left, appellant held Doe against her

will for several hours and beat and raped her. The following facts are adduced from the

record of appellant’s jury trial.

Doe Attends a Party

{¶3} Doe and appellant knew each other for some length of time. Their

relationship was described as casual and the two had been intimate in the past but not

recently. On December 12, 2015, appellant’s friend brought Doe and a female friend to

appellant’s apartment on Arch Street in Alliance. Doe’s friend left shortly after arriving,

but two others were present in addition to appellant and Doe: “Bob” and “Peggy.” The

group drank beer and listened to music. Bob and Peggy smoked crack cocaine; Doe

testified she took two hits from the crack pipe but there was not enough substance left in

the pipe to get her high. At some point she and Peggy briefly left the apartment to buy

cigarettes and crack. Doe testified appellant drank vodka and smoked crack, causing

him to behave erratically and pace around the apartment.

{¶4} Throughout the party, appellant repeatedly asked Doe to come into the

bedroom with him and she refused. Bob told appellant to leave Doe alone. Stark County, Case No. 2016CA00144 3

{¶5} Around 2:00 a.m., appellant came into the bathroom where Doe was and

told her Bob and Peggy had left, so they could go into the bedroom now. Doe again

refused and the two returned to the living room and sat on the couch, listening to music.

Doe picked up her cell phone intending to Google the singer they were listening to.

Appellant became enraged; he grabbed the cell phone and threw it at the door. Doe

picked up the phone and saw the screen was cracked. Doe was shocked because she

had never seen appellant angry or violent before. She testified she believed appellant

was angry because he thought she wanted to call someone for a ride home.

{¶6} Doe reached down to pick up her phone case from the floor, and appellant

grabbed her by the neck and began beating her and choking her. He forcefully pushed

her onto the couch and grabbed the phone and bent it back and forth. Doe grabbed at

appellant in an attempt to get him off her and ripped his sweater. Appellant squeezed her

neck hard, choking her, and hit her in the face.

{¶7} Doe could not breathe or talk but tried to get away. Appellant called her

“horrible names” as the assault continued, and made statements such as “everyone in

town has had a piece, now I’m getting one;” “you’re going to die being my wife;” “you

think I’m a game but I’m not one to play with;” and “you’ll see your kids in heaven.”

Appellant punched Doe repeatedly in the face. She testified the assault went on for about

three hours.

{¶8} Doe’s face was bleeding profusely and she wiped a bloody handprint onto

the wall while on her knees. At one point she wiped blood off herself with a towel. Finally

appellant told Doe she had five seconds to take her clothes off and he started counting

down backwards. Doe testified appellant raped her vaginally and the sexual assault Stark County, Case No. 2016CA00144 4

transpired over five minutes, on the couch in the living room. Appellant did not ejaculate.

He suddenly jumped off her, stating “what have I done?” Appellant hugged and kissed

Doe, telling her he was sorry.

{¶9} Doe pretended “everything was all right” in an attempt to get out of the

apartment. She told appellant no one needed to know what happened and “it was fine.”

Appellant asked her if she wanted anything and she asked for cigarettes. Appellant got

his wallet out to count money and told Doe to get dressed.

{¶10} The two left the apartment and walked to a nearby Walgreen’s drugstore

that was open for business, even though it was early in the morning. Doe told appellant

she couldn’t go into the store looking visibly beaten, so he went into the store alone to

buy cigarettes. Doe watched him inside the store and saw him get in line at the cash

register. She took off running toward the nearby Alliance Community Hospital parking

lot, where she saw two people getting into their cars.

Doe Seeks Help

{¶11} Eric Morrison is a nurse at Alliance Community Hospital and had just

completed his shift. He walked out with a co-worker and they were both getting into their

cars when a woman came running “frantically” across a grassy area bordering the parking

lot. The woman ran up and tried to get into Morrison’s car; at first he locked the doors

because he didn’t realize what was happening. The woman said “this guy is trying to kill

me” and Morrison saw a black male coming toward them across the grassy area, holding

out a pack of cigarettes.

{¶12} Morrison walked around his car with Doe hovering behind him as he listened

to her story. He described Doe as distraught, obviously injured, and very scared. Stark County, Case No. 2016CA00144 5

Appellant approached and tried to give Doe the cigarettes, speaking to Doe continuously

but Morrison couldn’t understand what he was saying because appellant seemed to have

a speech impediment. Morrison felt the situation was dangerous and signaled to his co-

worker in the other car to call hospital security and 911. Morrison tried to encourage

appellant to leave but he was adamant about speaking to Doe.

{¶13} Morrison described Doe as afraid for her life and crying. He observed

apparent serious injuries including multiple bruises on the left side of her face, abrasions,

and scratches on her neck as if she had been choked. Morrison remained with Doe until

police and security arrived.

Investigation, Search, and Statements

{¶14} Ptl. Donald Bartolet of the Alliance Police Department responded to the

parking lot and observed Doe with a badly swollen left eye, red marks, and scratches on

her face and torso. Doe appeared to have been badly beaten. Hospital security advised

Bartolet she had been held by appellant for some length of time before she was able to

get away, and she had been sexually assaulted.

{¶15} Appellant told Bartolet that Doe was crazy and had attacked him; he tapped

the hood of the police cruiser to demonstrate how he “barely” struck her to get off him.

Bartolet told appellant Doe’s injuries were too significant to support his story. Bartolet

noticed blood on appellant’s hands. He cuffed appellant, secured him in the cruiser,

Mirandized him, and called a detective to the scene. Bartolet’s conversations with Doe

and appellant were captured on his point-of-view camera and a DVD was played at trial

as appellee’s Exhibit 3. Stark County, Case No. 2016CA00144 6

{¶16} Bartolet’s interaction with Doe was quick because she needed to be

transported by ambulance to Aultman Hospital, despite the fact that she was found in the

parking lot of Alliance Community Hospital. Bartolet explained that the extent and severity

of her injuries mandated transport to Aultman Hospital. Additionally, the allegation of

sexual assault required transport because Alliance does not have a sexual-assault nurse

examiner. Bartolet photographed Doe, who remained upset and crying. She was holding

her face but Bartolet could see that her left eye was completely swollen shut.

{¶17} Bartolet transported appellant back to the apartment and appellant

consented to a search. Inside the apartment, police found evidence consistent with Doe’s

account, including a bloody handprint on the wall, a significant bloodstain on the couch

cushion, a woman’s broken fingernail, a bloody towel, a torn shirt, and a broken cell

phone. Police took photos and samples of blood throughout the small apartment.

{¶18} Appellant was interviewed at the Alliance Police Department by Detective

Shatzer and a DVD of the interview was introduced as appellee’s Exhibit 4. Appellant

denied striking Doe but admitted putting his hands around her throat, purportedly to get

her off him. Appellant said this accounted for the blood on his hands. Despite appellant’s

allegations that Doe assaulted him, Shatzer found no injuries other than scratches on his

chest consistent with the tear in his shirt. Appellant claimed Doe’s eye was not injured

when they left the apartment to get cigarettes. At various points in the interview, appellant

acknowledged he and Doe were the only occupants in the apartment while the assault

occurred, but other times he implied another person was present who may have caused

Doe’s injuries, but he was unable or unwilling to identify that person. He admitted they

had intercourse, although he said it was consensual, and he denied being forceful with Stark County, Case No. 2016CA00144 7

Doe. He claimed the blood on the towel came from Doe’s bloody nose. When confronted

by Shatzer with the fact that there was too much blood throughout the apartment to have

come from a bloody nose, appellant insisted he did not punch Doe and only struck her

lightly with an open palm because she had a “crack fit.”

{¶19} In the meantime, that morning Doe was transported to Aultman Hospital

where she was found to have a broken nose and a concussion. She was in pain from a

broken bone in her face. She made contact with a sexual assault nurse examiner (SANE)

and told the nurse she was raped, but left before a rape exam could be completed. The

nurse testified at trial that Doe had to be “medically cleared” before the exam could take

place, and the extent of her injuries made everything take longer. The nurse told Doe

before she left that she essentially had 72 hours to have the exam to preserve evidence.

Doe left the hospital, though, because she had a ride and was worried how she would get

back to Alliance.

{¶20} Doe did return to Aultman on December 14 and a second SANE nurse,

Kimberly Heffner, was able to complete a rape kit. Heffner testified she documented

Doe’s injuries including abrasions and bruising to her neck, chest, and wrist; a swollen

and bruised tongue; fingernails ripped off;1 a swollen nose; and her left eye was bruised

and swollen to the extent that medical personnel could not open it. Heffner did not

observe any vaginal injuries but she testified this is not uncommon in a rape exam and is

not dispositive of whether the subject was sexually assaulted.

1Heffner testified Doe had the type of artificial nails which are cemented onto the nail bed, not “press-on” nails. Heffner estimated it would take significant force to rip the nails off. Stark County, Case No. 2016CA00144 8

{¶21} Evidence collected from appellant’s apartment, the rape kit, the parties’

D.N.A. standards, and their clothing was submitted to B.C.I. for forensic analysis. D.N.A.

analysis indicated Doe’s blood was on appellant’s hands and the apartment wall. Other

samples were inconclusive.

{¶22} One witness testified for the defense at trial, a friend of appellant’s with

whom he used to live. The witness testified he had a party “4 or 5 years ago,” both

appellant and Doe attended, and they seemed to know each other.

{¶23} Appellant did not testify on his own behalf.

Indictment, Trial, and Conviction

{¶24} Appellant was charged by indictment as follows: one count of rape with a

repeat violent offender specification pursuant to R.C. 2907.02(A)(1) and 2941.149, a

felony of the first degree [Count I]; one count of kidnapping with a sexual motivation

specification and a repeat violent offender specification pursuant to R.C. 2905.01(A)(3)

and/or (A)(4), 2941.147, and 2941.149, a felony of the first degree [Count II]; one count

of felonious assault with a sexual motivation specification and a repeat violent offender

specification pursuant to R.C. 2903.11(A)(1), 2941.147, and 2941.149, a felony of the

second degree [Count III]; and one count of disrupting public services pursuant to R.C.

2909.04(A)(1), a felony of the fourth degree [Count IV].

{¶25} Appellant entered pleas of not guilty and the matter proceeded to trial by

jury. The repeat violent offender specifications were bifurcated and heard separately by

the trial court. Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at the

close of appellee’s evidence and at the close of all of the evidence; the motions were Stark County, Case No. 2016CA00144 9

overruled. Appellant was found guilty as charged and sentenced to an aggregate prison

term of 38 years. The trial court also designated appellant a Tier-III sex offender.

{¶26} Appellant now appeals from the judgment entries of his convictions and

sentence.

{¶27} Appellant raises five assignments of error:

ASSIGNMENTS OF ERROR

{¶28} “I. THE APPELLANT WAS DENIED A FAIR TRIAL DUE TO PREJUDICIAL

INTERRUPTIONS BY THE TRIAL COURT.”

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

HEARSAY TESTIMONY.”

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

ASSISTANCE OF COUNSEL.”

{¶31} “IV. THE TRIAL COURT’S FINDING OF GUILTY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.”

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

RAPE AND KIDNAPPING TO BE ALLIED OFFENSES AND MERGING THOSE

COUNTS FOR SENTENCING.”

ANALYSIS

I.

{¶33} In his first assignment of error, appellant argues interjections by the trial

court prejudiced the jury and denied him a fair trial. We disagree. Stark County, Case No. 2016CA00144 10

{¶34} During a jury trial, the comments and manner of the trial court may have a

strong impact on the jury. If the trial court’s comments rise to the level of prejudicing the

jury, the defendant is denied a fair trial. The conduct of the trial court may affect the

impartiality of the jury. The Due Process Clause of the Fourteenth Amendment to the

United States Constitution requires that a criminal defendant shall be tried before a panel

of fair and impartial jurors. State v. Stevens, 5th Dist. Morgan No. 14 AP 0005, 2015-

Ohio-307, ¶ 14, appeal not allowed,

,

,

, citing State v. Johnson, 5th Dist. Stark No. 2011–CA–237, 2012–Ohio–3227, ¶ 24.

{¶35} The trial court’s control of a trial is circumscribed by statutes and the Rules

of Evidence. R.C. 2945.03 states, “[t]he judge of the trial court shall control all

proceedings during a criminal trial, and shall limit the introduction of evidence and the

argument of counsel to relevant and material matters with a view to expeditious and

effective ascertainment of the truth regarding the matters in issue.” In addition, Evid.R.

611(A) provides that “[t]he court shall exercise reasonable control over the mode and

order of interrogating witnesses and presenting evidence so as to (1) make the

interrogation and presentation effective for the ascertainment of the truth, (2) avoid

needless consumption of time, and (3) protect witnesses from harassment or undue

embarrassment.” Evid.R. 614 further permits the court to “interrogate witnesses, in an

impartial manner, whether called by itself or by a party.”

{¶36} In exercising the duty to control a criminal trial, the trial judge is to remain

impartial and refrain from making comments which may influence a jury. State v. Boyd,

,

(8th Dist. 1989). “[T]he judge must be cognizant

of the effect of [ ] comments upon the jury [.]” State v. Wade,

, 373 Stark County, Case No. 2016CA00144

(1978), vacated and remanded on other grounds. “[T]he Court's participation

by questioning or comment must be scrupulously limited, lest the court, consciously or

unconsciously, indicate to the jury its opinion on the evidence or on the credibility of a

witness.” State ex rel. Wise v. Chand,

,

(1970), at

paragraph three of the syllabus. Furthermore, “juries are highly sensitive to every

utterance by the trial judge.” Wade at 188.

{¶37} Appellant in this case argues certain comments by the trial court went

beyond the court’s power to control the trial and were inappropriate, to the extent that the

comments prejudiced the jury. In deciding whether a trial judge's comments were

appropriate, we must determine whether the comments were prejudicial to the

defendant's right to a fair trial. Wade,

. “Where a jury might infer the

court's opinion of a witness through the persistence, tenor, range, or intensity of its

questions, the interrogation is prejudicially erroneous. While the court can ask neutrally

phrased questions, its questions should not suggest disbelief in a witness's testimony.”

State v. Prokos,

,

(4th Dist. 1993), citing

at paragraph four of the syllabus.

{¶38} Generally, in determining whether a trial judge's remarks were prejudicial:

(1)the burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is

presumed that the trial judge is in the best position to decide when a breach is committed

and what corrective measures are called for, (3) the remarks are to be considered in light

of the circumstances under which they are made, (4) consideration is to be given to their

possible effect upon the jury, and (5) to their possible impairment of the effectiveness of

counsel. State v. Petrone, 5th Dist. Stark No. 2011CA00067,

, appeal Stark County, Case No. 2016CA00144 12

not allowed,

,

,

, citing

.

{¶39} An appellate court reviewing a trial court's interrogation of witnesses and

comments must determine whether the trial court abused its discretion. State v. Davis,

,

(4th Dist. 1992). However, the failure to object to

the content of the judicial statements as being prejudicial to the appellant's rights has

been held to constitute a waiver of the error and arguably precludes consideration of the

issue upon appeal, for, absent an objection, the trial judge is denied an opportunity to

give corrective instructions as to the error. Wade,

, citing State v.

Williams,

,

(1974). Accordingly, any errors not brought

to the attention of the trial court by objection or otherwise are waived and may not be

raised on appeal unless they rise to the level of plain error.

2012-Ohio-

911 at ¶ 41; Hamilton v. Clemans,

,

(12th

Dist. 1997), citing State v. Williford,

,

(1990). To

constitute plain error, it must appear from the record that an error occurred and that except

for that error the outcome of the trial would have been different.

, citing

State v. Long, 53 Ohio St .2d 91, 97,

(1978).

{¶40} Without citation to the record, appellant notes a number of interjections by

the trial court which he claims to be prejudicial. In order to determine the prejudicial effect,

if any, from these interjections, we have examined the entire context of each of these

instances. See, State v. Spencer, 3rd Dist. Marion No. 9–13–50,

,

appeal not allowed,

,

,

.

{¶41} Upon our review of the record, we note the following statements in context: Stark County, Case No. 2016CA00144 13

1) [Defense counsel is cross-examining Jane Doe about her

statements to the nurse at Aultman Hospital:]

* * * *.

[DEFENSE COUNSEL]: Now, you testified previously that

you and [appellant] had been intimate and fooled around with one

another; is that correct?

[DOE]: A few times, yeah.

[DEFENSE COUNSE]L: Pardon me?

[DOE]: A few times, yes.

[DEFENSE COUNSEL]: Did you—when you went in,

discussing the same medical assessment that we just talked about *

* * did [the nurse] * * * ask you if [in] terms of this incident, if you had

any sexual relationship with the alleged perpetrator?

[DOE]: She asked me if—what, that night? [* * * *.] That

morning? Yeah, I told her he raped me; she never asked prior.

[DEFENSE COUNSEL]: Okay. So if the medical records

again, and I don’t know if you want to see this, the medical records

indicate Patient states she was drinking with a friend and that she

has known for three months and she has no prior sexual relationship

with, how did the nurse come to that conclusion?

THE COURT: Well, objection. She wouldn’t know how

the nurse came to that conclusion. Maybe rephrase it.

(Emphasis added). Stark County, Case No. 2016CA00144 14

[DEFENSE COUNSEL]: [Okay.] Did you state that to the

nurse?

[DOE]: I don’t even remember her asking me that.

[DEFENSE COUNSEL:] So you don’t remember saying that

at all?

[DOE]: No, and it’s irrelevant anyways.

THE COURT: Okay. Well, just you didn’t remember saying it.

The Court will determine what’s relevant, okay.

* * * *.

T. I., 209-210.

2) [Defense counsel is questioning Jane Doe about her testimony

on direct that the physical assault went on for about 3 hours and she

sustained approximately 30 blows to the head:]

* * * *.

[DEFENSE COUNSEL]: Now, you testified he was using his

fist to hit you?

[DOE]: Yes.

[DEFENSE COUNSEL]: And what fist was that?

[DOE]: Both.

[DEFENSE COUNSEL]: He was using both fists?

[DOE]: Yep.

[DEFENSE COUNSEL]: Was he using both fists equally or

was he using one more than the other? Stark County, Case No. 2016CA00144 15

[DOE]: I don’t know.

THE COURT: Well, that’s kind of hard to determine if

you’re getting hit. I mean that’s, that’s speculative. (Emphasis

added).

[DEFENSE COUNSEL]: I’ll withdraw the question, Your

Honor.

THE COURT: Yeah, let’s ask a new question.

[DEFENSE COUNSEL]: So at—when all this is happening

several hours at some point did somebody come to the door of the

building?

[DOE]: No. * * * *.

T. I., 213-214.

3 and 4) [Defense counsel questions Jane Doe about what she told

detectives about how long the assault transpired and what she said

to appellant:]

* * * *.

[DEFENSE COUNSEL]: And again in speaking with the

detective in this matter did you indicate to him how long you were

raped?

[DOE] I just said it was very short.

[DEFENSE COUNSEL]: Did you tell him that you were raped

a couple hours?

[DOE]: No, I said I was beat a couple hours. Stark County, Case No. 2016CA00144 16

[DEFENSE COUNSEL]: So if his report says otherwise, is

that a, a typo on his part?

[DOE]: Apparently.

THE COURT: She wouldn’t know what—whether it’s a

typo or what his report is. You should ask the officer that if he’s

brought into court. (Emphasis added).

[DEFENSE COUNSEL]: I’ll withdraw the question, Your

Honor.

THE COURT: Okay.

[DEFENSE COUNSEL]: At some time prior to this * * * did

you * * * tell him to get it over with? [ ] To just get it over with; were

those your words?

[DOE]: I don’t know.

[DEFENSE COUNSEL]: May I have one moment, Your

Honor?

THE COURT: Sure.

[DEFENSE COUNSEL]: Thank you. [ ]. So is it your

testimony, just to clarify, you never told Detective Shatzer that you

told him to just get it over with?

[DOE]: For who to get it over with?

[DEFENSE COUNSEL]: That you told [appellant]—

[DOE]: I’m not sure if I did, but if he’s raping me, I would hope

that he would get it over with. Stark County, Case No. 2016CA00144 17

THE COURT: Okay. Well, let’s calm down. She’s already

answered that and so we know what—she said she didn’t recall

during the rape whether she had told him to get it over with or

not. (Sic in original). We’ll let the detective if he has to testify

as to what and what comments may have been, so I think we

should go to a, a different question. (Emphasis added).

[DEFENSE COUNSEL]: So you testified that you were

bleeding. Where were you bleeding from?

* * * *.

T. I., 218-220.

{¶42} Our review of the trial court’s statements reveals that they are limited to

keeping witnesses and counsel on track with relevant issues in the case, preventing

mischaracterization of witnesses’ testimony, and keeping heated exchanges from getting

out of control, “all fairly common ground in any criminal trial and within the trial court's

discretion to control.”

. We note with approval the

assessment of the Third District Court of Appeals in Spencer, in which it reviewed a trial

with a greater number of instances of sua sponte interjection than the instant case:

The primary issue [appellant] raises with regard to these

interjections beyond the mere sua sponte nature of the interjections

alone, centers upon the admonitions, comments and remarks the

trial court often made directly to defense counsel along with the

interjections. In conducting our own review of these interjections in

the context of the trial and what was going on with each witness at Stark County, Case No. 2016CA00144 18

the time, it is our conclusion that while perhaps overly aggressive

and preemptive, and certainly annoying to trial counsel, the behavior

of the trial court in this case is more about the chosen style of certain

judges in conducting a jury trial, rather than the substantive

deprivation of any legal rights during this trial.

State v. Spencer, 3rd Dist. Marion No. 9–13–50, 2015-Ohio-

52, ¶ 78, appeal not allowed,

,

,

.

{¶43} In the instant case, we note the trial court’s interjections and sua sponte

comments cutting off counsel mid-stream applied to appellee as well. For example, the

trial court admonished the victim when she refused to reveal where she and Peggy went

to get cigarettes and crack and prevented appellee from asking witnesses to interpret

unintelligible portions of the DVDs. (T. I, 223-224, T. II, 70-73).

{¶44} Taken in context, “we cannot say in this case that these interjections, either

individually or cumulatively, went so far beyond the legitimate scope of the discretion and

prerogative of a trial court in conducting a jury trial, so as to constitute prejudicial error

and thereby deprive the defendant of a fair trial under the standards of review set forth

earlier.”

.

{¶45} The trial court gave a general curative instruction that the jury was to

disregard anything the court said or did which they might consider an indication of the

court's view of the facts. T. 239. The effect of the jury instruction is to minimize any

prejudicial effect the court’s comments may have had upon the jurors. State v. Scott,

,

(1986) (per curiam); State v. Lucky, 5th Dist. Delaware Stark County, Case No. 2016CA00144 19

No. 07CAA040018,

. The jury is presumed to follow the instructions

of the trial court. Pang v. Minch,

,

(1990),

paragraph four of the syllabus. Appellant has not pointed to any evidence in the record

that the jury failed to do so in this case.

{¶46} Upon review of the judge's comments in light of the evidence presented to

the jury in this matter, we are not persuaded that the outcome of the trial clearly would

have gone the other way but for the alleged error. State v. Turner, 5th Dist. Richland No.

2010-CA-0016,

, ¶ 35. The remarks at issue, when analyzed in light of

the circumstances under which they were made, did not cast an aspersion upon

appellant's innocence, the burden of proof or any other fundamental constitutional right

of the parties.

We cannot conclude that the outcome of the trial clearly would have

been different but for the comments. Id.; see also, State v. Woods, 5th Dist. Richland No.

05 CA 46,

; State v. Evege, 5th Dist. Ashland No. 99-COA-01287,

unreported,

, *6–7 (Jan. 21, 1999). Under the circumstances of this case,

we find that no plain error was committed.

{¶47} Appellant’s first assignment of error is overruled.

II.

{¶48} In his second assignment of error, appellant argues the trial court

improperly admitted hearsay testimony. We disagree.

{¶49} The admission or exclusion of relevant evidence is a matter left to the sound

discretion of the trial court. Absent an abuse of discretion resulting in material prejudice

to the defendant, a reviewing court should be reluctant to interfere with a trial court’s

decision in this regard. State v. Hymore,

,

(1967). Stark County, Case No. 2016CA00144 20

{¶50} Appellant’s argument is premised upon the testimony of Detective Shatzer;

specifically, Shatzer’s testimony about what Doe told him when he spoke to her in the

Alliance Hospital parking lot in the immediate aftermath of the assault and her escape

from appellant. We note only once was an objection raised: appellee asked whether Doe

told him appellant broke her phone; Shatzer stated she did; appellee asked if she told him

why appellant broke her phone, and appellant objected. The objection was overruled and

Shatzer answered Doe was attempting to call for help. (T.II, 50-51).

{¶51} We find the statements by Doe to Shatzer, including about the broken

phone, were properly admitted by the trial court as exceptions to the hearsay rule.

Hearsay is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C).

Hearsay is generally not admissible subject to several exceptions. Evid.R. 802, 803.

{¶52} Appellant summarily argues the statements of Doe admitted through

Shatzer are hearsay but appellee responds the statements were properly admissible as

excited utterances, and we agree. Evid.R. 803(2) describes hearsay exceptions and

defines an excited utterance as “[a] statement relating to a startling event or condition

made while the declarant was under the stress of excitement caused by the event or

condition.” A four-part test is applied to determine the admissibility of statements as an

excited utterance:

(a) that there was some occurrence startling enough to

produce a nervous excitement in the declarant, which was sufficient

to still his reflective faculties and thereby make his statements and

declarations the unreflective and sincere expression of his actual Stark County, Case No. 2016CA00144 21

impressions and beliefs, and thus render his statement of declaration

spontaneous and unreflective,

(b) that the statement or declaration, even if not strictly

contemporaneous with its exciting cause, was made before there

had been time for such nervous excitement to lose a domination over

his reflective faculties so that such domination continued to remain

sufficient to make his statements and declarations the unreflective

and sincere expression of his actual impressions and beliefs,

(c) that the statement or declaration related to such startling

occurrence or the circumstances of such starling occurrence, and

(d) that the declarant had an opportunity to observe personally

the matters asserted in his statement or declaration.

State v. Jones,

,

,

(citations omitted).

{¶53} The statement need not be made during the course of the startling event.

Rather, it is only necessary that the declarant still appeared nervous or distraught and

that there was a reasonable basis for continuing to be emotionally upset. In addition, we

note that there is no specific amount of time after which a statement can no longer be

considered as an excited utterance and not the result of reflective thought. State v. Taylor,

,

(1993).

{¶54} We find no error in the trial court's admission of Doe’s statements to

Shatzer; she had firsthand knowledge of the event and the statements were made while

she was under the stress of the excitement caused by the sustained assault. At trial, Stark County, Case No. 2016CA00144 22

Shatzer testified he spoke with Doe very briefly prior to her transport to the hospital; she

appeared very badly beaten and was upset and crying. The conversation occurred within

minutes of her escape from appellant. We find that the statements to Shatzer were made

while Doe was still upset, nervous and distraught over the incident. State v. Boss, 5th

Dist. Ashland No. 16–COA–026,

. We therefore concur with appellee

that Doe’s statements to the detective qualified as an excited utterance because she still

remained under the stress of a violent event. Id. at ¶ 28.

{¶55} Appellant’s second assignment of error is overruled.

III.

{¶56} In his third assignment of error, appellant argues he received ineffective

assistance of counsel. We disagree.

{¶57} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington,

,

(1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’”

, citing Michel v. Louisiana,

,

(1955).

{¶58} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland,

. The question is whether counsel acted “outside the

wide range of professionally competent assistance.”

. Stark County, Case No. 2016CA00144 23

{¶59} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland,

.

Absence of Motion in Limine

{¶60} First, appellant argues he received ineffective assistance of counsel

because counsel failed to file a motion in limine “to exclude references regarding anger

management classes [he] attended during his taped statement to police.” Again,

appellant fails to cite to the portion of the record where the error is found. See, App.R.

16(A)(7). This omission is significant because in his brief, appellant refers to the recording

of his statement made to an officer “captured by the Officer’s body cam * * *.” (Brief, 13).

Appellee’s Exhibit 3 is the recording made by Ptl. Bartolet from his point-of-view body

camera; appellant argues he made damaging statements about anger management

classes during this recording, and counsel was ineffective in preventing the recording

from being played for the jury.

{¶61} This argument does not align with events at trial. Appellant actually refers

to appellee’s Exhibit 4, which is the recording of appellant’s statement to Shatzer, which

was played during Shatzer’s testimony. When appellee asked to play the DVD, the trial

court asked whether the DVD had been redacted and defense trial counsel responded he

didn’t object to playing the DVD because it had been redacted. As the recording played,

the prosecutor asked Shatzer to narrate and explain appellant’s statements on the tape.

This conversation then occurred: Stark County, Case No. 2016CA00144 24

* * * *.

[PROSECUTOR]: What was he saying there?

[Shatzer]: That he didn’t ball up his fist and hit her, that he

has been through anger management and knows he’s not supposed

to—you know, you’re not supposed to hit people with his—with your

fists. But, and my partner actually caught onto this a little bit before

I did, you can see him going like this (indicating).

[Defense trial counsel asks to approach and a bench

conference ensues.]

[DEFENSE TRIAL COUNSEL]: I tried to let the anger

management part slide before I, before I approached, but I hope

we’re not going that route again. They found like a certificate in the

house that said like Men’s Challenge or it—

[PROSECUTOR]: I’m not asking anything about that.

[DEFENSE TRIAL COUNSEL]: Just trying to delay it.

THE COURT: Let me ask you this. He’s giving his

interpretation of the tape. I don’t think he should be doing that. You

can say what he did tell you; do it that way.

* * * *.

[Bench conference ends.]

T. II, 68-69.

{¶62} We have reviewed both DVDs, appellee’s Exhibits 3 and 4, and it is not

apparent to us which portions were redacted, if any. Defense trial counsel seemed to Stark County, Case No. 2016CA00144 25

reference a conversation in appellee’s Exhibit 3, the Bartolet recording, when officers

entered the apartment to search and briefly discussed what they found inside, including

a certificate of completion of an anger management course. Again, it is not clear from the

record what portion of the video was played. The record indicates the jury heard the

conversation between Bartolet and appellant about appellant’s consent to search the

apartment.

{¶63} Regardless of where the anger-management evidence came from, we

perceive appellant’s argument here to be that defense trial counsel should have filed a

motion in limine to keep it out. The significance of the introduction of two DVDs is that

defense trial counsel made some effort to redact portions viewed by the jury but Shatzer’s

anger-management statement slipped in anyway. Counsel immediately approached and

the trial court shut down the line of inquiry. It is not apparent to us from the record what

anger-management evidence came in, if any, other than Shatzer’s statement above.

{¶64} Additionally, as appellee points out, a motion in limine would have been

merely a preliminary ruling on the admissibility of the evidence anyway. As we have

explained, the record is too unclear as to what evidence was admitted for us to determine

what effect a motion in limine would have had, if any. We are therefore unwilling to find

defense trial counsel was ineffective with respect to the issue of anger management

references

{¶65} We find appellant has failed to demonstrate trial counsel was ineffective

with regard to Shatzer’s statement; nor has he established that the outcome of the trial

would have been different but for the statement.

Failure to Object Stark County, Case No. 2016CA00144 26

{¶66} Appellant’s second ineffective-assistance claim arises from defense trial

counsel’s failure to object when the prosecutor asked Shatzer, “And did he—did she also

tell you that then he said you’re going to die being my wife?” and Shatzer replied “Yes.”

(T. II, 113). This question was posed on redirect, after it was established on direct and on

cross that appellant had “waited” for Doe for a year and wasn’t going to “wait” anymore,

i.e. to have a sexual relationship with her.

{¶67} We note defense trial counsel objected to other leading questions. T. II, 72.

We are unable to conclude in the context of direct, cross, redirect, and re-cross

examinations that trial counsel's failure to object to this single question fell below an

objective standard of reasonable representation. State v. Ward, 5th Dist. Richland

No.2011–CA–100, 2012–Ohio–4807, ¶ 30; see also, State v. McCoy, 5th Dist. Richland

No.2005–CA–0025, 2006–Ohio–1320; State v. Rogers, 5th Dist. Licking No. 07–CA–152,

2009–Ohio–1956. Evid.R. 611(C) provides, “[l]eading questions should not be used on

the direct examination of a witness except as may be necessary to develop the witness'

testimony.” The failure to object to leading questions does not usually constitute

ineffective assistance of counsel. State v. Jackson,

, 449, 2001–Ohio–

1266,

. The failure to object is not a per se indicator of ineffective

assistance of counsel because sound trial strategy might well have been not to interrupt.

State v. Gumm,

,

(1995). The failure to object to

this question is not ineffective assistance.

{¶68} Appellant has not demonstrated that any claimed deficiencies of trial

counsel created “a reasonable probability that, but for counsel's unprofessional errors, Stark County, Case No. 2016CA00144 27

the result of the proceeding would have been different.”

, citing Strickland,

.

{¶69} Appellant's third assignment of error is overruled.

IV.

{¶70} In his fourth assignment of error, appellant argues his convictions are

against the manifest weight and sufficiency of the evidence. We disagree.

{¶71} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins,

,

,

, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

,

(1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

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

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

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

{¶72} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387. Stark County, Case No. 2016CA00144 28

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶73} Appellant argues generally his convictions for rape, felonious assault, and

kidnapping are against the manifest weight and sufficiency of the evidence because Doe

made “inconsistent statements” and the D.N.A. test results were inconclusive.2 He argues

specifically that his conviction for disrupting public services is against the manifest weight

and sufficiency of the evidence because appellee’s evidence does not meet the statutory

elements. We will examine each argument separately.

{¶74} With regard to the rape, felonious assault, and kidnapping offenses,

appellant points to alleged inconsistencies in Doe’s testimony and what she told other

witnesses about her history with appellant; specifically, whether they had a sexual

relationship in the past. We fail to perceive, and appellant does not explain, the relevance

of this information to the convictions. Appellant also points to alleged inconsistencies in

the physical evidence, including the facts that appellant had no injuries to his hands

despite repeatedly punching Doe in the face and items didn’t appear to be out of order in

the tiny apartment. We find the physical evidence compelling, however: appellant had

Doe’s blood on his hands and despite the lack of disarray in the apartment, there was a

significant amount of blood in the living room. The large bloodstains on the couch and

wall, the bloody towel, the broken phone, and the torn fingernail are compelling evidence

corroborating Doe’s statements. We also find appellant’s arguments that Doe herself

2Appellant does not challenge his convictions upon the repeat-violent-offender or sexual- motivation specifications. Stark County, Case No. 2016CA00144 29

likely smoked crack that night and appellant did not flee from police to be unpersuasive

in light of the amount of incriminating evidence against him.

{¶75} It is axiomatic that the weight of the evidence and the credibility of the

witnesses are determined by the trier of fact. State v. Yarbrough,

,

,

. Upon our review of the record, we find appellant's

convictions for rape, kidnapping, and felonious assault are supported by sufficient

evidence. We further find the trial court did not clearly lose its way and create a manifest

miscarriage of justice requiring that appellant's convictions be reversed and a new trial

ordered. Appellant's convictions upon those offenses are not against the manifest weight

of the evidence.

{¶76} We turn now to appellant’s conviction upon one count of disrupting public

services. R.C. 2909.04(A)(1) states: “No person, purposely by any means or knowingly

by damaging or tampering with any property, shall * * * [i]nterrupt or impair * * * telephone

* * * service; police, fire, or other public service communications; * * * being used for public

service or emergency communications[.]” “Telephone service” includes both the initiation

and receipt of calls. State v. Brown,

,

(8th

Dist. 1994). The destruction of even a single private telephone is enough to constitute a

violation of R.C. 2909.04. See, State v. Thomas, 2nd Dist. Montgomery No. 19435, 2003–

Ohio–5746. The statute is aimed at conduct which prevents a victim from using public

services to seek emergency assistance. For example, where a defendant grabs the

victim's phone and throws it into a toilet, and then removes the battery from a second

phone, such conduct “falls squarely within the types of behaviors the statute was Stark County, Case No. 2016CA00144 30

designed to punish: he interrupted telephone use for emergency communications.” State

v. White, 2nd Dist. Montgomery No. 21795, 2007–Ohio–5671, ¶ 15.

{¶77} Appellee’s argument at trial was that appellant broke Doe’s cell phone to

prevent her from “calling for help.” (T. II, 207, 209, 212). Shatzer testified several times

that Doe told him she was attempting to reach her cell phone to call for help but appellant

broke the phone to prevent her from calling police. (T. II, 34, 50-51). Doe’s phone was

broken and police found it in pieces in the apartment where she said it would be.

{¶78} We have reviewed Doe’s testimony regarding the destruction of the phone.

Doe testified she initially picked up the phone to google the singer whose music she and

appellant were listening to; this was the gesture that initiated appellant’s rage and the

ensuing assault. Doe speculated he thought she was calling someone for a ride home.

During the assault appellant told her it was “rude” to be on the phone when she was

spending time with someone. (T. I, 158-159).

{¶79} Further testimony established Doe intended to use the phone to call 911.

She further testified as follows:

* * * *.

[PROSECUTOR]: Did you ever try to get to your phone again

after he threw it the first time?

[DOE]: Yeah, that’s that—the second time that’s when he

start—when he bent the phone and I knew it wasn’t turning on; I had

tried to push the button.

[PROSECUTOR]: And why did you want to get to your

phone? Stark County, Case No. 2016CA00144 31

[DOE]: To get help. I was scared.

[PROSECUTOR]: So who would you have called if you would

have been able to use your phone?

[Doe]: 911.

* * * *.

[The prosecutor asks Doe to take an object out of an evidence

envelope.]

[PROSECUTOR]: * * * *. Can you tell us what that is?

[DOE]: My phone.

[PROSECUTOR]: Okay. Is that the phone [appellant] broke?

[DOE]: Yes.

[PROSECUTOR]: Okay. And [appellant] did that to your

phone, correct?

[DOE]: Yes.

[PROSECUTOR]: All right. And that was the phone that you

were trying to get to to call 911, correct?

[DOE]: Um-hum.

[PROSECUTOR]: And whenever you attempted to get to that

phone he would hit you or choke you?

[DOE]: Yeah. He was like a maniac when he was trying to

bend it.

[PROSECUTOR]: Okay.

[DOE]: I knew it wasn’t going to work. Stark County, Case No. 2016CA00144 32

* * * *.

T. I, 169-171.

{¶80} In the instant case, appellant argues his conviction must be reversed

because there is no evidence he broke the phone with the intention of preventing Doe

from calling 911. In State v. Yoakum, we held appellee is not required to prove that an

actual 911 emergency call was in progress when the telephone was disabled by the

defendant throwing it against the wall. 5th Dist. Holmes No. 01 CA005, 2002–Ohio–249,

at *2, citing State v. Brown,

,

(8th Dist. 1994).

Here, we find sufficient evidence to prove appellant broke the phone to prevent Doe from

calling 911.

{¶81} Appellant further argues his conviction fails because “[h]is subsequent

alleged attempt to break the phone in half did not affect [Doe’s] ability to seek help.” We

note Doe was able to seek help only after fleeing from appellant after tricking him into

leaving the apartment with her to get cigarettes. Doe’s successful escape from appellant

is irrelevant to whether he disrupted public services. “The statute prohibits purposeful or

knowing damaging or tampering with property that interrupts or impairs telephone

service.” Thomas, supra, 2003–Ohio–5746 at ¶ 62. Appellant’s conduct here falls

squarely within that the statute is designed to prevent.

{¶82} Appellee established appellant committed the conduct prohibited by R.C.

2909.04(A)(1): he grabbed Doe’s phone and threw it, breaking it the first time, and then

“bent it back and forth,” succeeding in completely disabling it. Doe was prevented from

calling police or seeking emergency assistance until she could escape from the

apartment. See, State v. Galindo, 5th Dist. Stark No. 2011CA00258,

. Stark County, Case No. 2016CA00144 33

{¶83} We have reviewed the record and are satisfied that the jury did not lose its

way in resolving any conflicts in the evidence. Appellant's conviction for one count of

disrupting public services is supported by sufficient evidence in the record and is not

against the manifest weight of the evidence.

{¶84} Appellant’s fourth assignment of error is overruled.

V.

{¶85} In his fifth assignment of error, appellant argues the counts of rape and

kidnapping are allied offenses of similar import which should have merged for sentencing.

We disagree.

{¶86} R.C. 2941.25 states:

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

to constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such offenses,

but the defendant may be convicted of only one.

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

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

more offenses of the same or similar kind committed separately or

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

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

convicted of all of them.

{¶87} Appellant argues his convictions of rape and kidnapping should have

merged for sentencing purposes. In State v. Jackson, the Ohio Supreme Court instructed

Ohio courts to utilize the allied-offenses analysis of State v. Ruff, in which the Court Stark County, Case No. 2016CA00144 34

applied a three-part test to determine whether a defendant can be convicted of multiple

offenses:

As a practical matter, when determining whether offenses are

allied offenses of similar import within the meaning of R.C. 2941.25,

courts must ask three questions when the defendant's conduct

supports multiple offenses: (1) Were the offenses dissimilar in import

or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation? An affirmative

answer to any of the above will permit separate convictions. The

conduct, the animus, and the import must all be considered.

State v. Jackson,

,

,

, reconsideration denied,

,

,

, and cert. denied,

,

(2017), citing State v. Ruff,

,

,

.

{¶88} In State v. Logan,

,

(1979), at the

syllabus, the Ohio Supreme Court established a framework to analyze whether

kidnapping and another offense were committed with a separate animus as to each

pursuant to R.C. 2941.25(B):

(a) Where the restraint or movement of the victim is merely

incidental to a separate underlying crime, there exists no separate

animus sufficient to sustain separate convictions; however, where

the restraint is prolonged, the confinement is secretive, or the Stark County, Case No. 2016CA00144 35

movement is substantial so as to demonstrate a significance

independent of the other offense, there exists a separate animus as

to each offense sufficient to support separate convictions;

(b) Where the asportation or restraint of the victim subjects

the victim to a substantial increase in risk of harm separate and apart

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

animus as to each offense sufficient to support separate convictions.

{¶89} The issue in the instant case, therefore, is whether the restraint was “merely

incidental” to the rape. The sexual assault was five minutes of a prolonged, lengthy

ordeal. Appellant restrained Doe in the apartment for hours, beating her, choking her,

and eventually raping her. Upon our review of the record, we agree with appellee that “*

* * the duration of [appellant’s] restraint of [Doe] subjected her to a substantial increase

in the risk of harm to her that was separate and apart from that involved in the underlying

crime” of rape.

{¶90} We are convinced appellant committed the rape and kidnapping offenses

with separate animus. The offenses, therefore, are not allied offenses of similar import

and the trial court properly sentenced appellant on both.

{¶91} Appellant’s fifth assignment of error is overruled.

CONCLUSION

{¶92} Appellant’s five assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas is affirmed. Stark County, Case No. 2016CA00144 36

By: Delaney, P.J.,

Baldwin, J. concur and

Hoffman, J., concurs separately Stark County, Case No. 2016CA00144 37

Hoffman, J., concurring

{¶93} I concur in the majority’s analysis and disposition of Appellant’s second,

third, fourth and fifth assignments of error.

{¶94} I further concur generally with the majority’s analysis of Appellant’s first

assignment of error and do concur in its decision to overrule it. I write separately only

with respect to the one comment by the trial court during cross-examination of Jane Doe

regarding the blows she received at Appellant’s hand. I am troubled by the trial court’s

comment, “Well, that’s kind of hard to determine if you’re getting hit. I mean that’s, that’s

speculative.”

{¶95} The majority finds the trial court’s “…remarks, at issue, when analyzed in

light of the circumstance under which they were made, did not cast an aspersion upon

appellant’s innocence, the burden of proof or any other fundamental constitutional right

of the parties.” (Majority Opinion at ¶46 citing State v. Turner, 5th Dist. Richland No. 2010-

CA-0016,

, ¶35.)

{¶96} I find this particular comment by the trial court indirectly, if not directly,

suggests to the jury it found Jane Doe’s testimony regarding the physical assault to be

credible. I do not think the trial court did so consciously given its comment “that’s

speculative.”

{¶97} Unlike the majority, I find the trial court’s comment did cast an aspersion

upon Appellant’s innocence as it had the effect, at least indirectly, of vouching for the

victim’s credibility. Stark County, Case No. 2016CA00144 38

{¶98} Nevertheless, I concur with the majority’s conclusion we cannot conclude

that the outcome of the trial clearly would have been different but for the comments.