[Cite as State v. Goney,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2017-CA-43 : v. : T.C. NO. 2017-CR-124 : BRYAN J. GONEY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 1st day of June, 2018.

...........

NATHANIEL LUKEN, Atty. Reg. No. 0087864, Greene County Prosecutor’s Office, 55 Greene Street, First Floor, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

ANDREA OSTROWSKI, Atty. Reg. No. 0075318, 20 South Main Street, Springboro, Ohio 45066 Attorney for Defendant-Appellant

............. -2-

DONOVAN, J.

{¶ 1} Defendant-appellant Bryan J. Goney appeals his conviction and sentence for

the following offenses: Count I, robbery, in violation of R.C. 2911.02(A)(2), a felony of the

second degree; Count III, kidnapping, in violation of R.C. 2905.01(A)(2), a felony of the

second degree; and Count IV, abduction, in violation of R.C. 2905.02(A)(2), a felony of

the third degree. Counts I and III were accompanied by a repeat violent offender (RVO)

specification. Goney filed a timely notice of appeal with this Court on July 21, 2017.

Procedural History

{¶ 2} On March 15, 2017, Goney was indicted as follows: Count I, robbery; Count

II, robbery; Count III, kidnapping; and Count IV, abduction. As previously stated, Counts

I and III were each accompanied by RVO specifications. At his arraignment on March

22, 2017, Goney pled not guilty to all of the counts in the indictment, and the trial court

ordered bond in the amount of $100,000.00.

{¶ 3} Immediately prior to the beginning of Goney’s jury trial on April 10, 2017, the

parties agreed that the RVO specifications attached to Counts I and III were matters for

the trial court to decide at sentencing if Goney were to be found guilty of those offenses.

The trial court also held a hearing pursuant to Lafler v. Cooper,

,

,

(2012), during which the State indicated, and the defense agreed,

that it had made no plea offer to Goney in the instant case. Thereafter, a jury was chosen

and seated, and the trial began.

{¶ 4} At the close of its case-in-chief, the State moved to dismiss Count II, robbery,

in the indictment, and the trial court granted the State’s motion in an entry filed on April

12, 2017. On the same day, the trial court overruled Goney’s Crim.R. 29 motion for -3-

acquittal with respect to the remaining counts in the indictment. Thereafter, Goney

presented his witnesses, after which the parties made their closing arguments, and the

trial court instructed the jury accordingly. On April 13, 2017, the jury found Goney guilty

on all of the remaining counts.

{¶ 5} At Goney’s sentencing hearing held on July 10, 2017, the trial court found

him guilty of both RVOs, merged Counts III and IV, and sentenced him to an aggregate

prison term of twenty years.

Case History

{¶ 6} The incident which forms the basis for the instant appeal occurred in the early

morning hours on November 13, 2016, when Melissa Wright was managing a Circle K

convenience store located in Fairborn, Ohio. Shortly after 1:00 a.m., Wright decided to

take a break in order to smoke a cigarette because the store was not busy. When she

walked outside, Wright testified that she observed a white U-Haul moving van parked

around the side of the store. At approximately 1:24 a.m., Wright indicated that she was

about to extinguish her cigarette when she observed a white male carrying a black

handgun exit the moving van and run towards her. Wright testified that the man was

wearing blue jeans and a black hooded sweatshirt with the hood pulled over his head.

Wright also testified that the man was wearing a mask, and he was brandishing a black

handgun. Wright testified that she observed that the man was wearing only one glove

on his left hand. Wright further testified that she knew the suspect was white because

she could see one of his uncovered hands and the skin around his eyes that was not

covered by the mask. Wright also testified that the suspect was wearing a distinctive

pair of tennis shoes. -4-

{¶ 7} The man, later identified as Goney, ordered Wright back inside the store.

Wright testified that while he pointed the gun at her, Goney demanded all of the money

in the cash register. Wright testified that Goney put the money, totaling $61.00, in a black

bag that he was carrying with him. Goney also ordered Wright to give him the money in

the store’s second cash register and a blue coupon folder, but she showed him that

neither the second register nor the folder contained any money. At this point, Goney

ordered Wright into a back room in the store. Wright testified that she was frightened

because she believed that Goney would shoot her if she did not comply with his orders.

After Wright was forced into the back room, which was actually the store’s office, Goney

left the convenience store. When she was confident that Goney had indeed left the

store, Wright testified that she called 911 to report the robbery. Significantly, Wright

testified that shortly before Goney robbed the store, a young woman, later identified as

Magen Branham, entered the store and purchased a can of Pepsi at approximately 12:52

a.m. Wright testified that the store she managed was equipped with video surveillance

which recorded the robbery.

{¶ 8} At approximately 1:29 a.m., Fairborn Police Officer Chris Sopher was

dispatched to the convenience store to investigate the robbery. Officer Sopher spoke

with Wright at the Fairborn Circle K, and she provided him with a description of the

suspect, as well as the U-Haul van in which the suspect fled the scene. Officer Sopher

contacted dispatch and relayed the details of the robbery and a description of the suspect

provided by Wright. Officer Sopher testified that after contacting dispatch, he took

photographs of the scene and also viewed the video surveillance recording of the robbery.

{¶ 9} Thereafter, Fairborn Police Officer Dan Pence was informed by dispatch that -5-

a robbery had recently occurred at a Circle K in Fairborn, and the suspect fled the scene

in a white U-Haul van. Officer Pence testified that he first attempted to locate the U-Haul

van in the area nearby the Fairborn Circle K, but he was unsuccessful. While Officer

Pence was searching, however, dispatch informed him that a white U-Haul van matching

Wright’s description had been located at a nearby Circle K in Xenia, Ohio. After watching

the surveillance video of the alleged robbery at the Fairborn Circle K, Fairborn Police

Officer Dan Foreman relayed a description of the suspect’s clothing to Officer Pence.

{¶ 10} Officer Pence responded to the Circle K location in Xenia where he came

into contact with Greene County Sheriff’s deputies who had detained a man and a woman

who had arrived at the store in a white U-Haul van. Upon arriving at the Circle K in Xenia,

Officer Pence observed a white U-Haul van parked next to the gas pumps. Officer Pence

testified that he looked through the windows of the van and observed a black hooded

sweatshirt similar to the one described by Wright. Officer Pence testified that he also

observed a navy t-shirt that could have been used to obscure someone’s face. Officer

Pence also testified that the shoes that Goney was wearing at the Xenia Circle K were

similar to the shoes worn by the suspect who robbed the Fairborn Circle K. Goney was

also wearing blue jeans.

{¶ 11} The State also presented the testimony of Crystal Lodge, who was working

at the Xenia Circle K on November 13, 2016. Lodge testified that at approximately 1:45

a.m., she observed a white U-Haul van drive up to the gas pumps in front of the

convenience store. Lodge testified that a man and woman, later identified as Goney and

Magen Branham, exited the van, entered the store, and began shopping. At

approximately the same time, Greene County Sherriff’s Deputy Jeffrey Thomas was on -6-

routine patrol in the area when he observed the white U-Haul van parked by the gas

pumps at the Xenia Circle K. Deputy Thomas testified that the van matched the

description of the vehicle used in the recent reported robbery of the Fairborn Circle K.

Upon looking in the window of the van, Deputy Thomas also observed a black hooded

sweatshirt matching the description of the one worn by the suspect in the Fairborn Circle

K robbery.

{¶ 12} Deputy Thomas testified that he approached Goney and Branham as they

were exiting the Xenia Circle K. Deputy Thomas asked the pair if the U-Haul van

belonged to them, and Goney stated that it did not. Deputy Thomas ordered Goney and

Branham to sit down on the curb in front of the store. At that point, Deputy Jessica

Kessel arrived at the Xenia Circle K to assist Deputy Thomas. While Deputy Thomas

went inside the store to secure the area, Deputy Kessel and Deputy Thomas Sexton, who

had just arrived, patted Goney down. Deputy Kessel testified that they retrieved a key

to the U-Haul van, a can of pepper spray, and approximately $90.00 in cash. Deputy

Kessel then placed Branham in the back of her cruiser, and Deputy Sexton placed Goney

in the back of his cruiser. Deputy Sexton testified Goney took his tennis shoes off while

sitting in the back of the cruiser. Deputy Sexton also testified that he asked Goney if the

U-Haul van belonged to him, and Goney stated that the van belonged to his “baby’s

mama.” Goney also informed Deputy Sexton that Branham was a friend of his sister.

We also note that Officer Foreman testified that the tennis shoes that Goney had taken

off in Deputy Sexton’s cruiser were similar to the shoes worn by the suspect in the robbery

of the Fairborn Circle K.

{¶ 13} The State also presented the testimony of Magen Branham, the female who -7-

was arrested with Goney at the Xenia Circle K. Branham testified that Goney picked her

up in a white U-Haul van at 4:30 p.m. on November 12, 2016. Thereafter, Branham

testified that they drove around in the van for several hours. Branham testified that

during the drive, Goney stated that he needed to rob someone in order to make some

money. Additionally, while they drove around, Branham snorted heroin, and Goney used

methamphetamine.

{¶ 14} After midnight on November 13, 2016, Branham testified that she and

Goney drove to the Circle K in Fairborn. Goney told Branham to go into the convenience

store in order to check for surveillance cameras and to see who was working. Branham

testified that she went into the store and purchased a can of Pepsi. After making her

purchase, Branham got back in the van, and she and Goney drove around for a short

time in order to formulate an escape route. Goney and Branham returned to the

convenience store and parked nearby. Branham testified that Goney put one glove on,

wrapped a blue t-shirt around his head, and pulled the hood of his black sweatshirt over

his head. Goney then grabbed a black bag, exited the vehicle, and ran into the store.

Branham testified that she did not know that Goney was carrying a gun. Notably,

Branham testified that the black bag used by Goney was not her purse. Shortly

thereafter, Goney returned to the van, and they drove away. Branham testified that

Goney told her that he ordered the clerk into the back room of the store. After leaving

Fairborn, Branham testified that they drove to the Circle K in Xenia, at which point Goney

changed his clothes before going in the convenience store. As previously stated, it was

at the Xenia Circle K that Goney and Branham were apprehended by the police.

{¶ 15} During her testimony, Branham admitted that she provided police with a -8-

false name when she was arrested and taken into custody. 1 Branham also

acknowledged that she entered into a deal with the State whereby she would plead guilty

to tampering with records and identity fraud, and her robbery charge would be dismissed.

Branham also testified that the State had agreed to recommend that she receive

community control with inpatient drug treatment. Finally, Branham testified that she had

never met Goney’s sister.

{¶ 16} Fairborn Police Detective Ryan Whittaker testified that he interviewed

Branham in the days following the robbery, and her statements to him were consistent

with her trial testimony. Detective Whittaker further testified that he obtained a search

warrant for the U-Haul van in which he discovered a Pepsi can and two crumpled dollar

bills in the center console. Detective Whittaker testified that on the driver’s side of the

van he found a black hooded sweatshirt, a black bag, a blue t-shirt, and a single left-

handed glove. Detective Whittaker also discovered a black BB gun that looked like a

real handgun between the seats next to the black bag.

{¶ 17} Called by the State, Cortney Erisman testified that Goney was her boyfriend

and that she is the mother of his child. Erisman also testified that she and Goney rented

a white U-Haul van together on November 12, 2016. The rental contract required that

the van be returned the following day on November 13, 2016. Erisman testified that she

was unable to return the van on that date because it was no longer in her possession.

Erisman testified that she did not know Magen Branham, nor did she let anyone borrow

the van. On cross-examination, Erisman testified that she and Goney arrived at Goney’s

1 The record establishes that Magen Branham identified herself to police as “Loretta Branham,” which is actually the name of her cousin. -9-

sister’s house in Xenia in the U-Haul van at approximately 5:00 p.m. on November 12,

2016. Goney’s sister was identified as Denise Goney. Erisman also testified that

Goney was with her until they went to bed that night between 11:00 p.m. and 12:00 a.m.

Erisman and her daughter slept on a bed while Goney slept on the floor next to the bed.

Erisman testified that she did not hear Goney get up during the night, nor was she aware

that he was not at his sister’s house until approximately 11:00 a.m. on November 13,

2016.

{¶ 18} The defense presented the testimony of Kelli Forand, who testified that she

was Magen Branham’s cell mate in November of 2016. Forand testified that Branham

stated that she was having an affair with Goney. Forand also testified that Branham

stated that she committed the robbery of the Fairborn Circle K with her boyfriend. Forand

testified that Branham, however, never referred to her boyfriend by name.

{¶ 19} The defense also presented the testimony of Jill Underwood, Goney’s

mother. Underwood testified that at approximately 8:30 p.m. on the night of November

12, 2016, she went to Denise Goney’s house in Xenia. Underwood testified that, when

she arrived there, Goney was present at the house with Erisman and their daughter.

Underwood also testified that when she went outside to smoke with Goney, she observed

that the white U-Haul van was not in the driveway. Underwood testified that Goney went

to bed at approximately 11:00 p.m. on the night of November 12, 2016. Underwood

testified that she saw Goney in the hallway of the house at approximately 1:15 a.m.

Shortly thereafter, Underwood went to sleep on the couch in the living room.

{¶ 20} Underwood testified that she was awakened at approximately 1:40 a.m.

when she heard a car horn from the front of the house. Underwood then observed -10-

Goney leave the house out of the front door. Underwood testified that she walked to the

window and observed the U-Haul van parked in the driveway. Underwood testified that

she observed Goney talking to an unidentified male in the driver’s seat while what

appeared to be a female individual sat in the front passenger seat. While Underwood

looked on, another vehicle pulled up behind the van. Underwood testified that the

unidentified male in the driver’s seat exited the van and entered the second vehicle, which

then drove away. Underwood testified that Goney, who she claimed was not wearing

any shoes, then got into the driver’s seat of the U-Haul van and drove away at

approximately 1:42 a.m.

{¶ 21} Thus, based upon the alibi testimony provided by Underwood, Goney could

not have been the individual who robbed the Fairborn Circle K at 1:24 a.m. on November

13, 2016, because he was allegedly at his sister’s house when the crime occurred. We

note that neither Forand nor Underwood came forward prior to trial with any information

regarding their knowledge of Goney’s whereabouts when the robbery occurred at the

Fairborn Circle K on November 13, 2016.

{¶ 22} Goney’s appeal is now properly before us.

{¶ 23} Goney’s first assignment of error is as follows:

THE TRIAL COURT ERRED IN IMPOSING A DEFINITE PRISON TERM

FOR A REPEAT VIOLENT OFFENDER SPECIFICATION.

{¶ 24} In his first assignment, Goney contends that the trial court erred when it

imposed a definite prison term for the RVOs. Specifically, Goney argues that pursuant

to R.C. 2929.14(B)(2)(b), the jury, not the trial court, was required to find that Goney

attempted to cause, threatened to cause, or actually caused serious physical harm before -11-

the trial court could impose sentence for the RVO specifications.

{¶ 25} R.C. 2929.14(B)(2)(b) states in pertinent part:

(b) The court shall impose on an offender the longest prison term authorized

or required for the offense and shall impose on the offender an additional

definite prison term of one, two, three, four, five, six, seven, eight, nine, or

ten years if all of the following criteria are met:

(i) The offender is convicted of or pleads guilty to a specification of the type

described in section 2941.149 of the Revised Code that the offender is a

repeat violent offender.

(ii) The offender within the preceding twenty years has been convicted of or

pleaded guilty to three or more offenses described in division (CC)(1) of

section 2929.01 of the Revised Code * * *.

(iii) The offense or offenses of which the offender currently is convicted * *

* [is] any felony of the second degree that is an offense of violence and the

trier of fact finds that the offense involved an attempt to cause or a threat to

cause serious physical harm to a person or resulted in serious physical

harm to a person.

{¶ 26} Based upon the language in R.C. 2929.14(B)(2)(b)(iii), Goney argues that

the jury, not the trial court, was required to find beyond a reasonable doubt that he

attempted to cause or threatened to cause serious physical harm, or that his actions

resulted in serious physical harm. Each crime for which Goney was convicted required

him to be found guilty of inflicting, attempting to inflict, or threatening to inflict only physical

harm, not serious physical harm. -12-

{¶ 27} Goney was ultimately convicted of Count I, robbery (R.C. 2911.02(A)(2)),

Count III, kidnapping (R.C. 2905.01(A)(2)), and Count IV, abduction (R.C. 2905.01(A)(2)).

As previously stated, the trial court merged Count IV into Count III. The trial court

sentenced Goney to a mandatory eight years in prison for robbery. Upon finding Goney

to be a repeat violent offender, the trial court imposed an additional two years in prison to

be served consecutively to his eight-year robbery sentence. With respect to his

sentence for kidnapping, the trial court sentenced Goney to a mandatory eight years in

prison. Again, finding Goney to be a repeat violent offender, the trial court imposed an

additional two years in prison to be served consecutively to his eight-year kidnapping

sentence. The trial court then ordered that Goney’s sentences for Counts I and III be

served consecutively to one another, for an aggregate sentence of twenty years in prison.

{¶ 28} R.C. 2911.02(A)(2) states in pertinent part:

(A) No person, in attempting or committing a theft offense or in fleeing

immediately after the attempt or offense, shall do any of the following:

(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another[.]

{¶ 29} R.C. 2905.01(A)(2) states in pertinent part:

(A) No person, by force, threat, or deception, * * * , shall remove another

from the place where the other person is found or restrain the liberty of the

other person, for any of the following purposes:

(2) To facilitate the commission of any felony or flight thereafter[.]

{¶ 30} Initially, we note that we agree with the Eleventh District Court of Appeals

in State v. Payne, 11th Dist. Lake No. 2004-L-118,

, in which the court

held that in order to be constitutionally permissible under Apprendi v. New Jersey, 530 -13-

U.S. 466, 490,

,

(2000), “any fact, other than a prior

conviction, must be determined by a jury or admitted by the appellant.” (Emphasis sic.)

Id. at ¶ 114. Thus, any fact other than a prior conviction that is found by a jury or admitted

by the defendant complies with Apprendi, regardless of whether it relates to a prior or

current conviction. State v. Wilson, __ N.E.3d __,

(11th Dist.).

{¶ 31} It is undisputed that in the instant case, Goney did not admit to any

allegations that he attempted to cause or threatened serious physical harm, or that his

actions resulted in serious physical harm with respect to any of the offenses for which he

was convicted. Accordingly, under Apprendi, Goney was entitled to have a jury decide

whether he should be designated as a repeat violent offender. See State v. Bishop, 5th

Dist. Stark No. 2014-CA-190,

, ¶ 19–21.

{¶ 32} Nevertheless, as the U.S. Supreme Court stated in Blakely v. Washington,

,

,

(2004), “nothing prevents a defendant

from waiving his Apprendi rights [to a jury determination of every element of the charge].

* * * Even a defendant who stands trial may consent to judicial fact-finding as to sentence

enhancements, which may well be in his interest if relevant evidence would prejudice him

at trial.”

. While the Sixth Amendment generally prohibits judicial fact-finding,

there is an “exception for prior criminal convictions and the defendant's consent to judicial

fact-finding.” State v. Hunter,

,

,

, citing State v. Foster,

,

,

.

{¶ 33} Prior to trial, Goney filed a motion in limine in which he noted that pursuant

to R.C. 2941.149(B), “[t]he court shall determine the issue of whether an offender is a

repeat violent offender.” Therefore, according to Goney’s liminal motion, “[t]he issue of -14-

whether the Defendant is a repeat violent offender is a question for the court, not the jury.”

Accordingly, Goney requested that the trial court determine whether he should be

designated as a RVO. The trial court granted Goney’s motion in limine at a hearing

where Goney was present. Thus, Goney consented to judicial fact-finding regarding his

designation as a repeat violent offender.

{¶ 34} That is not the end of our analysis, however. In the instant case, although

the trial court was asked to determine if Goney was guilty of the RVO specifications, the

trial court was still required to make all of the appropriate findings based upon the

evidence before enhancing Goney’s sentence as an RVO. The trial court was only

permitted to enhance Goney’s sentence relative to the RVO specifications if, as trier of

fact, the trial court found appellant's actions threatened, attempted, or resulted in “serious

physical harm” to the victim. See State v. Brown, 10th Dist. Franklin Nos. 10AP-836 and

10AP-845,

, ¶ 23, fn. 2 (holding the trial court properly enhanced the

defendant's sentence for second-degree felony robbery only because the indictment for

the attached RVO specification alleged “serious physical harm” and the jury instructions

for the robbery count included a finding of “serious physical harm”); State v. Davis, 7th

Dist. Mahoning No. 08 MA 152,

, ¶ 36 (holding that, although the

defendant may have in fact threatened to cause serious physical harm to the robbery

victims, only the trier of fact was permitted to make such a finding for purposes of penalty

enhancement).

{¶ 35} Initially, we note that nowhere in Goney’s indictment did the State allege

that he attempted to cause or threatened “serious physical harm,” or that his actions

resulted in “serious physical harm” with respect to any of the offenses for which he was -15-

convicted. Moreover, the jury instructions contain no mention of “serious physical harm.”

Most importantly, the trial court did not make a finding that Goney attempted to cause or

threatened “serious physical harm” against the complaining witness, Melissa Wright,

before finding him guilty of the RVO specifications, and the trial record contains no threat

of serious physical harm. In fact, at the sentencing hearing held on July 10, 2017, the

trial court stated the following:

The Court: As recorded in the Court’s repeat violent offender entry,

the Court found the Defendant to be a repeat violent offender, and pursuant

to R.C. 2929.14(B)(2)(b) finds the following: The Defendant is convicted of

a R.C. 2941.149 specification that the Defendant is a repeat violent

offender.

The offense the Defendant is currently convicted of is a second

degree felony that is an offense of violence, and the trier of fact finds that

the offense involved an attempt or a threat to cause physical harm to a

person or result in serious physical harm to a person.

(Emphasis added.)

{¶ 36} Here, we find that the trial court made the proper findings with respect to

R.C. 2929.14(B)(2)(b)(i) and (ii). Specifically, the trial court found that Goney was

“convicted of a specification of the type described in section 2941.149 of the Revised

Code that the offender is a repeat violent offender,” and he “within the preceding twenty

years has been convicted of or pleaded guilty to three or more offenses described in

division (CC)(1) of section 2929.01 of the Revised Code * * *.”

{¶ 37} However, with respect to R.C. 2929.14(B)(2)(b)(iii), the record establishes -16-

that the trial court failed to find that Goney attempted to cause or threatened “serious

physical harm” against a person before finding him guilty of the RVO specifications.

Rather, as noted above, the trial court found “that the offense involved an attempt or a

threat to cause physical harm to a person.” (Emphasis added.) Simply put, “physical

harm” and “serious physical harm” represent two distinct legal standards and cannot be

used interchangeably. Therefore, pursuant to the clear language in R.C.

2929.14(B)(2)(b)(iii), the trial court failed to make the proper findings. Furthermore,

although the trial court ostensibly found “that the offense involved * * * serious physical

harm to a person,” there is no evidence in the record to support such a finding, with regard

to Wright based on the evidence surrounding the robbery of the Fairborn Circle K. Thus,

because the trial court failed to make the proper findings pursuant to R.C.

2929.14(B)(2)(b)(iii), it erred when it found Goney guilty of the RVO specifications.

{¶ 38} Goney’s first assignment of error is sustained, and each of his two-year

sentences for RVO specifications are vacated.

{¶ 39} Goney’s second assignment of error is as follows:

THE TRIAL COURT ERRED BY NOT MERGING SENTENCING FOR

ALLIED OFFENSE COUNT 1 AND COUNT 3.

{¶ 40} In his second assignment, Goney argues that the trial court erred when it

failed to merge Count I, robbery, with Count III, kidnapping. Initially, we note that Goney

did not raise the issue of merging Counts I and III before the trial court at sentencing.

Accordingly, we review Goney’s merger argument for plain error. In order to constitute

plain error, the error must be an obvious defect in the trial proceedings, and the error

must have affected substantial rights. State v. Norris, 2d Dist. Montgomery No. 26147, -17-

, ¶ 22; Crim.R. 52(B). Plain error should be noticed “with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long,

,

(1978), paragraph three of the

syllabus.

{¶ 41} R.C. 2941.25, Ohio's allied offense statute, provides that:

(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.

{¶ 42} The Ohio Supreme Court clarified the applicable standard when

determining whether offenses merge as allied offenses of similar import. State v. Ruff,

,

,

.

Rather than compare the elements of two offenses to determine

whether they are allied offenses of similar import, the analysis must focus

on the defendant's conduct to determine whether one or more convictions

may result, because an offense may be committed in a variety of ways and

the offenses committed may have different import. No bright-line rule can

govern every situation. -18-

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.

at ¶ 30–31.

{¶ 43} Recently, in State v. Wood, 2d Dist. Montgomery No. 26134, 2016-Ohio-

143, we stated the following:

[T]he Ohio Supreme Court addressed the allied-offense issue again in State

v. Earley, [

,

,

]. There

the majority characterized the analysis in its earlier [State v.] Johnson [,

,

,

] lead opinion as “largely

obsolete.” Id. at ¶ 11. The Earley court instead embraced Ruff, which, as

noted above, considers a defendant's conduct, his animus, and the import

or significance of his offenses. Applying Ruff, the Earley court concluded

that misdemeanor OVI and felony aggravated vehicular assault “are

offenses of dissimilar import and significance that are to be punished

cumulatively.” Earley at ¶ 20. For purposes of our analysis here, we note

that a defendant bears the burden of establishing entitlement to merger, and

we review a trial court's ruling on the issue de novo. State v. LeGrant, 2d -19-

Dist. Miami No. 2013-CA-44,

.

***

We reach the same conclusion under the Ruff standard, which the Ohio

Supreme Court applied in Earley. We see nothing in Ruff that alters or

undermines the foregoing analysis about [defendant’s] commission of

murder and aggravated robbery involving the same conduct committed with

the same animus. For the reasons set forth above, we conclude that the

two offenses were not committed separately and were not committed with

a separate animus or motivation. These findings remain pertinent under

Ruff, which, as noted above, provides that offenses do not merge if “(1) the

offenses are dissimilar in import or significance—in other words, each

offense caused separate, identifiable harm, (2) the offenses were

committed separately, or (3) the offenses were committed with separate

animus or motivation.” Ruff at ¶ 25; see also Id. at ¶ 30–31.

Wood at ¶ 54, quoting State v. McGail,

,

, ¶ 51 & 60 (2d

Dist.).

{¶ 44} Goney was convicted of Count I, robbery, in violation of R.C. 2911.02(A)(2),

which states in pertinent part:

(A) No person, in attempting or committing a theft offense or in fleeing

immediately after the attempt or offense, shall do any of the following:

(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another[.]

{¶ 45} Goney was also convicted of Count III, kidnapping, in violation of R.C.

2905.01(A)(2), which states in pertinent part: -20-

(A) No person, by force, threat, or deception, ***, shall remove another from

the place where the other person is found or restrain the liberty of the other

person, for any of the following purposes:

(2) To facilitate the commission of any felony or flight thereafter[.]

{¶ 46} Implicit in every robbery is a kidnapping insofar as an offender at least

temporarily must restrain the victim to commit a theft. State v. Johnson, 2d Montgomery

No. 26323, 2015–Ohio–347, ¶ 14, citing State v. Jenkins,

,

(1984), fn. 29. Kidnapping and robbery are not always allied offenses of

similar import subject to merger, however, because they can involve distinct acts. Even

when they involve the same conduct, they also each can involve a separate animus. “A

separate animus for kidnapping exists where (1) ‘the restraint is prolonged, the

confinement is secretive, or the movement is so substantial as to demonstrate a

significance independent of the other offense,’ or (2) ‘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.’ ” Id. at ¶ 14, citing State v. Logan,

,

(1975), syllabus.

{¶ 47} In the instant case, we see no error in the trial court's failure to merge the

kidnapping involving Wright with the robbery. The record establishes that Goney

ordered Wright inside the convenience store, and while he pointed a BB gun at her, Goney

demanded all of the money in the cash register. Wright testified that Goney put the

money in a black bag that he was carrying with him. Goney also ordered Wright to give

him the money in the store’s second cash register and a blue coupon folder, but she

showed him that neither the second register nor folder contained any money. At that -21-

point, Goney ordered Wright into a back room in the store where she remained until

Goney had fled the scene.

{¶ 48} In Logan, the Ohio Supreme Court recognized that the “primary issue” when

determining whether kidnapping merges with another offense “is whether the restraint or

movement of the victim is merely incidental to a separate underlying crime or, instead,

whether it has a significance independent of the other offense.”

. In our

view, the act of ordering Wright into the back room of the store constituted a separate and

distinct act beyond the restraint implicit in every robbery. The robbery itself had

concluded at the point when Goney ordered Wright into the back room. The act of

ordering Wright into the back room was not merely incidental to the robbery itself, and it

was substantial enough to have significance independent of the completed robbery. State

v. Grable, 2d Dist. Clark No. 2014-CA-52,

, ¶ 15. Therefore, we see no

error in the trial court's failure to merge the robbery with the kidnapping charge.

{¶ 49} Goney’s second assignment of error is overruled.

{¶ 50} Goney’s third assignment of error is as follows:

APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 51} In his third assignment, Goney argues that he received ineffective

assistance “through an accumulation of defects in trial counsel’s failure to properly

investigate his client’s case and his failure to communicate a plea offer.” Specifically,

Goney contends that his counsel was ineffective for failing to be aware of the nature of

Branham’s Miami Township arrest warrant and his failure to discover the cell phone found

in Branham’s brown purse, marked as State’s Exhibit 55. Lastly, Goney argues that his -22-

counsel was deficient for failing to inform him of an alleged plea deal offered by the State

after the trial began.

We review the alleged instances of ineffective assistance of trial counsel

under the two-prong analysis set forth in Strickland v. Washington (1984),

,

,

, and adopted by the Supreme

Court of Ohio in State v. Bradley (1989),

,

, * * *. Pursuant to those cases, trial counsel is entitled to a strong

presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland,

. To reverse a conviction based on

ineffective assistance of counsel, it must be demonstrated that trial

counsel's conduct fell below an objective standard of reasonableness and

that his errors were serious enough to create a reasonable probability that,

but for the errors, the result of the trial would have been different.

Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel's perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective

assistance of counsel.

(Internal citation omitted.) State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008–

Ohio–493, ¶ 31.

{¶ 52} Regarding defense counsel's alleged failure to properly investigate his or

her client’s case, the Ohio Supreme Court has noted:

It is axiomatic that effective representation of a client carries with it a burden

to investigate. “* * * [C]ounsel has a duty to make reasonable investigations -23-

or to make a reasonable decision that makes particular investigations

unnecessary. In any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel's

judgments.”

,

. See,

also, Powell v. Alabama (1932),

,

,

.

.

Branham’s Arrest Warrant

{¶ 53} During trial, Branham testified that she initially provided the police with a

false name upon being arrested at the Xenia Circle K. Branham testified that she

provided a false name because she was attempting to avoid triggering a warrant that she

believed was active in Miami Township. During cross-examination, Branham was asked

by defense counsel for what offense the alleged warrant was issued. The State

objected, and a bench conference was held. During the bench conference, defense

counsel was unable to inform the trial court what the warrant was for, and the State’s

objection was sustained. Goney argues that if his counsel had been aware of the nature

of Branham’s warrant, he could have used it to impeach her testimony.

{¶ 54} Upon review, we conclude that the record establishes that Goney’s counsel

vigorously cross-examined Branham. Defense counsel was able to impeach Branham

with several inconsistencies. On the record before us, we cannot find defense counsel’s

performance to be ineffective because he did not know the nature of a warrant which may

or may not have even existed. Goney’s argument that his counsel could have used the

warrant to further impeach Branham’s testimony is also somewhat speculative since the -24-

warrant, assuming it actually existed, could have been for failure to appear for a traffic

offense or of such a nature to render it inadmissible in the first instance. Thus, we cannot

find that defense counsel’s lack of knowledge regarding the nature of Branham’s warrant

would have altered the outcome of the trial.

Contents of State’s Exhibit 55

{¶ 55} The record establishes that after deliberations had begun, the jurors notified

the trial court that they had opened State’s Exhibit 55, Branham’s purse, and found an

envelope containing a cell phone and some drug paraphernalia. The envelope was

signed by Detective Whittaker. Goney moved for a mistrial, but his motion was denied.

{¶ 56} On appeal, Goney argues that his counsel was deficient for failing to locate

the phone in the purse prior to trial, because he could have acquired the cell phone

records which would have allowed him to track Branham’s location throughout the night

of November 12, 2016, and the early morning hours of November 13, 2016. Goney

argues that Branham’s location during the relevant time frame was a central part of his

defense, and the failure of his counsel to find and obtain the cell phone was clearly

ineffective and could have changed the outcome of the trial.

{¶ 57} Upon review, we conclude that Goney has failed to establish that the

outcome of the trial would have been any different if his counsel had discovered the cell

phone prior to trial. Initially, we note that although the cell phone was found in Branham’s

purse, it is unknown whether the phone actually belonged to her. Additionally, Goney is

assuming that the cell phone was in Branham’s purse and with Branham through the

entire time during which the robbery occurred. It is also possible that the cell phone, if it -25-

does in fact belong to Branham, would serve to corroborate her testimony. Goney is

merely speculating that the cell phone would help his case and that his attorney would

have sought an analysis of its GPS data if it existed. For these reasons, we find that

Goney’s counsel’s failure to locate the cell phone prior to trial is insufficient to create a

reasonable probability that the result of the trial would have been different.

Failure to Inform Goney of Plea Deal

{¶ 58} Here, Goney argues that his counsel was ineffective for failing to inform him

of a plea deal allegedly offered by the State after the trial had begun. As previously

noted, prior to the beginning of the trial, the trial court held a Lafler hearing during which

the State and defense counsel agreed that no plea offers had been made in the instant

case.

{¶ 59} However, at the sentencing hearing, Goney informed the trial court that

Detective Whittaker had approached him at some point during the trial and asked him

why he had not taken the deal. Goney further alleged that there was an offer to plead

guilty to one count of robbery, a felony of the second degree, without an RVO

specification. Goney then went on to ask all of the parties present at the sentencing

hearing on the record whether the plea offer ever actually existed. Neither the State nor

defense counsel answered his question. Other than Goney’s bare assertions to the

contrary, there is no evidence in the record which supports his claim that the plea deal

ever existed.

{¶ 60} Goney’s claim regarding the existence of a plea deal offered by the State

after the trial began is based upon evidence outside the record. A direct appeal can only

refer to evidence in the trial record. State v. Hartman,

, 754 N.E.2d -26-

1150 (2001) (if establishing ineffective assistance of counsel requires proof outside the

record, then such claim is not appropriately considered on direct appeal); State v. Ishmail,

,

(1978) (the appellate court is limited to what

transpired as reflected by the record on direct appeal).

{¶ 61} Matters outside the record must be addressed in a petition for post-

conviction relief. “[T]he availability of the post relief conviction route removes claims

based on matters outside the record from the form of extraordinary circumstances

demonstrating a manifest injustice.” State v. Laster, 2d Dist. Montgomery No. 19387,

2003–Ohio–1564, ¶ 8. Goney's argument that his counsel was ineffective for failing to

inform him of the alleged plea deal offered by the State after the trial began pertains to

matters outside the record, and is therefore more suited for a petition for post-conviction

relief.

{¶ 62} Goney’s third assignment of error is overruled.

{¶ 63} Goney’s fourth assignment of error is as follows:

THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT’S

MOTION FOR A MISTRIAL.

{¶ 64} In his fourth assignment, Goney contends that the trial court erred when it

overruled his motion for a mistrial based upon the U.S. Supreme Court’s holding in Brady

v. Maryland,

,

,

(1963). Specifically, Goney

argues that the State failed to disclose exculpatory evidence, to wit: the cell phone found

by the jury in Branham’s purse (State’s Exhibit 55) during deliberations.

{¶ 65} As this Court has previously noted:

In Brady, the United States Supreme Court held that “the suppression by -27-

the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

. See

also, State v. Johnston,

,

(1988),

paragraph four of the syllabus; State v. Aldridge,

,

(2d Dist. 1997). Evidence is considered material “if there

is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” United

States v. Bagley,

,

,

(1985).

State v. Royster, 2d Dist. Montgomery No. 26378,

, ¶ 16.

{¶ 66} Thus, in order to establish a Brady violation, the petitioner must

demonstrate that (1) the prosecution failed to disclose evidence upon request; (2) the

evidence was favorable to the defendant; and (3) the evidence was material.

{¶ 67} As previously discussed in our analysis of his third assignment, Goney has

failed to establish that the outcome of the trial would have been any different if he had

been aware of the cell phone prior to trial. Goney claims that the cell phone could

potentially exonerate him if the records establish that Branham was in a different location

than what she testified to at trial. However, the cell phone was potentially useful, not

materially exculpatory, because no more can be said other than that the cell phone could

have been analyzed and examined, the results of which might have exonerated Goney.

Other than being found in an evidence envelope in Branham’s purse, State’s Exhibit 55,

there was is no evidence that the phone even belonged to her or was retrieved from her

on the night of her arrest. Furthermore, Goney is assuming that the cell phone was in -28-

Branham’s purse and with Branham throughout the entire time during which the robbery

occurred. It is also possible that the cell phone, if it does in fact belong to Branham,

would serve to corroborate her testimony. Simply put, Goney is speculating that the cell

phone would change the outcome of the trial. Therefore, we cannot say that the cell

phone contents were not materially exculpatory under Brady, and there is no reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. Accordingly the trial court did not err when it

overruled Goney’s motion for a mistrial.

{¶ 68} Goney’s fourth assignment of error is overruled.

{¶ 69} Because they are interrelated, Goney’s fifth and sixth assignments of error

will be discussed together as follows:

APPELLANT’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S CRIMINAL

RULE 29 MOTION BECAUSE THERE WAS INSUFFICIENT EVIDENCE

TO SUPPORT THE CHARGES.

{¶ 70} In his fifth assignment, Goney contends that the trial court erred when it

overruled his Crim.R. 29 motion for acquittal made at the close of evidence. In his sixth

assignment, Goney argues that his convictions were against the manifest weight of the

evidence.

{¶ 71} Although the State does not raise the issue, we note that the record fails to

establish that Goney renewed his Crim.R. 29 motion for acquittal at the close of all the

evidence in his jury trial. Here, Goney moved for acquittal at the close of the State's -29-

case-in-chief, the trial court denied the motion, and defense counsel then presented the

testimony of two witnesses for the defense. After resting, the printed record provided to

this Court does not indicate that Goney renewed his Crim.R. 29 motion for acquittal.

Goney has therefore failed to preserve his insufficiency argument by not renewing it at

the close of evidence. See State v. Zimpfer, 2d Dist. Montgomery No. 26062, 2014-Ohio-

4401, ¶ 42 (appellant preserved his insufficiency argument by making an unsuccessful

Crim.R. 29 motion for acquittal at the close of evidence at trial). It is generally accepted

in Ohio that if counsel fails to make and renew a Crim.R. 29 motion during a jury trial, the

issue of sufficiency is waived on appeal. State v. Richardson,

, 2016-Ohio-

8081, ¶ 16 (2d Dist.). However, even if Goney had renewed his Crim.R. 29 motion, we

conclude that his argument that his convictions for robbery, kidnapping, and abduction

were based upon insufficient evidence lacks merit.

{¶ 72} Crim.R. 29(A) states that a court shall order an entry of judgment of acquittal

if the evidence is insufficient to sustain a conviction for the charged offense. “Reviewing

the denial of a Crim.R. 29 motion therefore requires an appellate court to use the same

standard as is used to review a sufficiency of the evidence claim.” State v. Witcher, 6th

Dist. Lucas No. L–06–1039,

. “In reviewing a claim of insufficient

evidence, ‘[t]he relevant inquiry is whether, after reviewing 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.’ ” (Citations omitted). State v.

Crowley, 2d Dist. Clark No. 2007-CA-99,

.

{¶ 73} “A challenge to the sufficiency of the evidence differs from a challenge to

the manifest weight of the evidence.” State v. McKnight,

, 2005-Ohio- -30-

6046,

. “A claim that a jury verdict is against the manifest weight of

the evidence involves a different test. ‘The court, 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 reversed and

a new trial ordered. The discretionary power to grant a new trial should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction.’ ”

(Citations omitted.) Id. at ¶ 71.

{¶ 74} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass,

,

(1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997).

{¶ 75} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97–CA–03,

(Oct. 24, 1997).

{¶ 76} Initially, we note that Goney concedes that the State adduced sufficient

evidence at trial for establishing the elements of the offenses for which he was convicted. -31-

Simply put, he does not dispute that a robbery, kidnapping, and abduction occurred at the

Fairborn Circle K on November 13, 2016. Goney is only arguing that the State failed to

prove beyond a reasonable doubt that he was the individual who committed the offenses.

Specifically, Goney contends that the only State’s witness who could identify him as the

perpetrator of the charged offenses was Magen Branham. Branham, Goney argues,

was an unreliable witness who lied about her identity to the police and had a drug

problem. Goney further argues that Branham lied about Goney’s involvement in the

robbery in order to receive a favorable plea deal. Goney argues that the testimony of

Forand, Branham’s cell mate, and his mother, Underwood, was entirely more credible

and provided him with a solid alibi regarding when the robbery occurred.

{¶ 77} Having reviewed the record, we find no merit in Goney's manifest-weight

challenge. It is well-settled that evaluating witness credibility is primarily for the trier of

fact. State v. Benton, 2d Dist. Miami No. 2010-CA-27,

. Here the

jury quite reasonably could have credited the extensive testimony provided by all of the

State's witnesses, including Magen Branham, evaluated said evidence and all reasonable

inferences to the elements of the offenses, and thereafter, found Goney guilty. Having

reviewed the entire record, we cannot clearly find that the evidence weighs heavily

against conviction, or that a manifest miscarriage of justice has occurred.

{¶ 78} Goney's fifth and sixth assignments of error are overruled.

{¶ 79} Goney’s first assignment of error having been sustained, both of his two-

year sentences for the RVO specifications are reversed and vacated. In all other

respects, the judgment of the trial court is affirmed, and this matter is remanded for

proceedings consistent with this opinion. -32-

.............

WELBAUM, P.J. and FROELICH, J., concur.

Copies mailed to:

Nathaniel Luken Andrea Ostrowski Hon. Michael A. Buckwalter