[Cite as State v. Metz,

.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

v. : Nos. 107212, 107246, 107259, and 107261 ANTHONY METZ, ET AL. :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: October 3, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-618532-C, CR-17-618532-D, CR-17-618532-A, and CR-17-618532-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut, Assistant Prosecuting Attorney, for appellee.

Russell S. Bensing, for appellant Anthony Metz; Thomas A. Rein, for appellant Richard A. Tenney; Joseph V. Pagano, for appellant Jaustin Browning; and Susan J. Moran, for appellant Anthony Bergant. LARRY A. JONES, SR., J.:

{¶ 1} Defendants-appellants Anthony Metz (“Metz”), Richard Tenney

(“Tenney”), Jaustin Browning (“Browning”), and Anthony Bergant (“Bergant”),

appeal their convictions and sentences for crimes associated with a sexual assault.1

For the reasons that follow, we affirm their convictions, but reverse their consecutive

sentences and remand for resentencing.

Procedural History

{¶ 2} The defendants were indicted in July 2017. In Count 1, all four

defendants were charged with rape (fellatio) by force or threat of force; in Count 2,

Tenney, Browning, and Bergant were charged with rape (vaginal intercourse) by

force or threat of force; Count 3 charged all four defendants with kidnapping with a

sexual motivation specification; Count 4 related solely to Browning, and charged

pandering obscenity; and Count 5 related solely to Browning and Bergant, and

charged misdemeanor assault.

{¶ 3} All four defendants waived their right to a jury trial, and the matter

proceeded to a bench trial. At the close of the state’s case, the defendants made a

Crim.R. 29 motion for judgment of acquittal, which was denied. The defense called

1Thiscourt sua sponte consolidated the defendants’ appeals for disposition after oral argument. two witnesses to testify. The defendants renewed their Crim.R. 29 motion at the

conclusion of the defense’s case; it was again denied.

{¶ 4} After its deliberations, the trial court found all four defendants guilty

of the charges as indicted. The trial court sentenced Metz to ten years on the rape

conviction and five years on the kidnapping conviction to be served consecutive to

each other for an aggregate 15-year term. Tenney was sentenced to ten years on each

of his three convictions (two counts of rape and one count of kidnapping), to be

served consecutive to each other, for an aggregate 30-year term. The trial court

sentenced Browning to ten years on each of the two rape counts, ten years on the

kidnapping count, 12 months on the pandering obscenity count, and time served on

the misdemeanor assault count; the trial court ordered the counts to run consecutive

to each other for an aggregate 31-year term. Bergant was sentenced to ten years on

each of the two rape counts, ten years on the kidnapping count, and time served on

the misdemeanor assault; the trial court ordered the counts to run consecutive to

each other for an aggregate 30-year term. The defendants were labeled Tier III

sexual offenders.

Trial Testimony

{¶ 5} The victim in this case was a 20-year-old female, T.B. The incident

giving rise to the charges occurred on April 6, 2017. At that time, T.B. had been

dating C.T., a 17-year-old boy.

{¶ 6} In the week leading up to the incident T.B. was staying with her

friend, D.W., in a house on Indiana Avenue in Cleveland. C.T. and D.W. are cousins and C.T. lived in the house too; the house belonged to C.T. and D.W.’s grandmother.

T.B. had been dating C.T. for about a month before the incident.

{¶ 7} The testimony demonstrated that a number of minors and young

adults lived in or “hung around” the Indiana Avenue house. The adults in the home

tended to occupy the upstairs portion of the house and the young people tended to

occupy the downstairs portion. T.B. explained that she was staying there because

she and her mother, with whom she lived, had been arguing and she wanted to get

out of her mother’s house for a few days.2

{¶ 8} C.T. was friends with the defendants. T.B. testified that she

previously knew Browning, and that she met Bergant a couple of weeks before the

incident when she was “hanging out” at Browning’s apartment and Bergant was

there. T.B. stated that she only met Tenney and Metz the day of the incident. T.B.

believed that Bergant and Tenney were brothers.

{¶ 9} According to T.B.’s testimony, on April 5, the day before the incident,

she and C.T. had been fighting after she confronted him about news she heard that

he had been cheating on her. Specifically, she learned that he had been engaging in

“multiple-partner sex” with some of his friends. T.B. testified C.T. left the house that

night, but she stayed.

{¶ 10} The following day, C.T. returned to the house with the four

defendants in Browning’s vehicle. T.B. was on the porch, the group came onto the

2T.B.’s mother and father were divorced and lived apart from one another. porch and C.T. said to T.B., “f--- your goddaughter,” in an apparent reference to

T.B.’s approximate 9-month-old goddaughter. T.B. testified that in response she hit

C.T. in his face; he then put her in a chokehold and almost pushed her down the

front porch steps.

{¶ 11} T.B. went into the house to get her cell phone, which she had left on a

table. However, the phone was not there and several of the people in the house,

including C.T. and Browning, were laughing at her. The group eventually went back

outside. T.B. testified that she got into Browning’s vehicle, “just joking around to

make [C.T.] mad.” According to T.B., this would make C.T. mad because he had

specifically told her that he did not want her around Browning.

{¶ 12} The defendants followed her into the vehicle. Bergant was in the

driver’s seat, Browning was the front passenger, and T.B. was in the back middle, in

between Tenney and Metz. T.B. testified that Bergant started driving ─ she did not

know they were actually going to leave ─ and she did not have her cell phone or

wallet, which were important to her. She repeatedly asked to go back to the Indiana

Avenue house, but Bergant would not.

{¶ 13} As they were driving, Browning told T.B. to perform oral sex on Metz.

Metz grabbed T.B.’s head and forcibly attempted to make her perform oral sex on

him; he was successful for about a minute, but then T.B. was able to stop him. She

specifically testified that his penis had been in her mouth. On cross-examination,

T.B. admitted that Metz’s penis was limp, not erect. {¶ 14} Following Metz, Tenney then forced T.B. to perform oral sex on him;

he was successful and ejaculated in her mouth. The other three defendants were

laughing while this occurred. She held the semen in her mouth until they reached

their destination, which was Browning’s apartment, and she spit it out when she got

out of the vehicle. T.B. testified that Browning was recording the sex acts on his cell

phone. Browning told her that if she did not do as she was told he would show the

video to other people. T.B. testified that during the course of the incident she told

the defendants that she did not want to do the sex acts and asked them to take her

back to the Indiana Avenue house.

{¶ 15} T.B. testified that when they arrived at Browning’s apartment

building they all went into Browning’s apartment. T.B. testified that she went into

the apartment because she was scared and she knew Browning knew where she

lived. She was also not familiar with her surroundings. In the apartment, Tenney,

Bergant, and Browning entered Browning’s bedroom, she followed them into the

bedroom, and Browning pushed T.B. on the bed. She testified that Metz did not go

into the bedroom. T.B. testified that Tenney, Bergant, and Browning were “smoking

a blunt, and they ashed on me,” meaning they put the ashes in her hair.

{¶ 16} T.B. testified that Browning then forced her pants off and told her to

engage in oral sex on Tenney; he told her that he would not take her home until she

did so. Tenney grabbed her head and made her do it. After that, Tenney vaginally

raped T.B. When Tenney was finished, Bergant vaginally raped her. Then T.B. was forced to perform oral sex on Bergant. Browning was recording all of this with his

cell phone.

{¶ 17} After those assaults, Tenney, Bergant, and Browning left the bedroom

and T.B. put her pants back on and went out into the living room where all four

defendants were. T.B. testified that upon entering the living room, she “got pushed

over on the couch, and [her] face went into the couch, and they pulled [her] pants

down,” and one of them raped her, but she did not see who it was.

{¶ 18} T.B. testified that after the couch incident, they took her back into the

bedroom, where she got pushed on the bed and Bergant vaginally raped her; he

ejaculated inside her. Browning then made the other defendants leave and he forced

her to perform oral sex on him and then he vaginally raped her, ejaculating inside of

her and into her hair. Browning left when he was finished and brought the other

defendants back into the bedroom. As T.B. was putting her pants back on, both

Browning and Bergant hit her on the side of her face so hard that she lost her hearing

for a couple of weeks. Further, one of the hits caused her eye to be swollen.

{¶ 19} T.B. went to the bathroom to try to clean her face, but the defendants

told her to come on, they were leaving. They all got back in Browning’s vehicle and

T.B. asked Browning to take her to the Indiana Avenue house, but he said he would

not. Browning drove T.B. to her mother’s house, told her to get out, and that if she

ever told anyone about what had happened, he would show the video. T.B. testified

that she initially would not get out of the car because she wanted to go to the Indiana

Avenue house to retrieve her belongings, but Browning told her he would not take her there so she got out. The events described above occurred between 1:00 p.m.

and 3:00 p.m.

{¶ 20} T.B.’s cousin, with whom she has a very close relationship, was

outside of her mother’s house; he lived there as well. She and the cousin walked to

the Indiana Avenue house because T.B. wanted to get her phone and wallet.

Additionally, she did not want to see her mother or stepfather; her face was red and

swollen and she did not want to tell them about the incident. During the walk, which

was approximately 20 minutes, T.B. told her cousin that the defendants hit her on

her face.

{¶ 21} Upon arriving at the Indiana Avenue house, T.B. also told one of the

adults that the defendants hit her in the face. She retrieved her wallet, but still could

not find her cell phone. T.B., her cousin, and two females from the house went to

the store with T.B. to attempt to purchase a new cell phone. At the store, T.B.

realized that her bank card was missing from her wallet. She called her mother to

tell her and to ask her to close the account. The group then dropped T.B. off at T.B.’s

grandmother’s house, and they took her cousin to T.B.’s mother’s house. T.B.

testified that she did not want to go home because she did not want her mother to

see her face.

{¶ 22} At her grandmother’s house, T.B. called her father and told him that

her cell phone had been stolen, and told him that she was coming to his house, which

was in close proximity to the grandmother’s house. Upon arriving at her father’s house, T.B. told him and his girlfriend that both her cell phone and bank card had

been stolen. Her father asked her if they should call the police and T.B. said yes.

{¶ 23} At about the same time, before the call to the police had been placed,

T.B.’s mother and cousin called and the cousin asked T.B. if the defendants had

raped her; T.B. responded that they had. It was the first time she had told anyone

of the rapes. T.B.’s father then called 911, and told the operator that T.B. had been

assaulted and robbed. T.B. told the 911 operator that the theft of her wallet and cell

phone happened at Browning’s apartment and that she believed C.T. was

responsible. At trial, T.B. admitted that C.T. had not been at Browning’s apartment

at the time in question and that she got that “mixed up.” T.B. never told the 911

operator about the rapes; she testified at trial that she did not because her father had

already told the operator she was assaulted. Her mother and cousin then came to

the father’s house, and arrived at about the same time the police did.

{¶ 24} The responding officer testified that T.B. did not tell him anything

about being sexually assaulted in a vehicle; relative to the vehicle, T.B. only told the

officer that the defendants would not allow her to leave it. T.B. also did not tell the

officer about being raped and hit in the living room; she only told him about the

sexual assault in the bedroom. The officer testified that he did not observe any

injuries to T.B., but T.B. told him that she had been hit so hard in the head that she

was having trouble hearing. {¶ 25} However, T.B.’s mother testified that T.B. appeared to be a “mess.”

She looked like she “had been through the mill. * * * She was very upset, like,

distraught. * * * You could tell that something happened to her.”

{¶ 26} After telling the police what had happened to her, T.B. was

transported by ambulance to a hospital where she was examined by a sexual assault

nurse examiner (“SANE nurse”) and a rape kit was administered.

{¶ 27} The SANE nurse testified. Her examination of T.B. started at 10:16

p.m. on April 6, 2017, the date the incident occurred. T.B. told the nurse that she

was sexually assaulted by Browning, Bergant, and a third individual whose name

she did not know, but whom she knew as Bergant’s “brother,” i.e., Tenney. T.B.

never mentioned that a fourth individual (Metz) was involved.

{¶ 28} She told the nurse that her assailants vaginally assaulted her with

their penises and fingers. T.B. told the nurse that the assailants ejaculated on her

face, back, and sweatshirt. She had not changed her clothes, showered, brushed her

teeth, or been to the bathroom since the assault.

{¶ 29} Specifically, T.B. told the SANE nurse that in the vehicle “Anthony’s

brother” (i.e., Tenney) was sitting next to her and he “zipped down his pants and

pulled [her] head down to his penis and [she] tried to stop him.” T.B. did not tell

the nurse about the other sexual assault that occurred in the vehicle.

{¶ 30} T.B. further told the nurse that when they arrived at Browning’s

apartment, the defendants made her get out of the car and then they all went into

Browning’s apartment. She told the nurse that they pushed her into the bedroom onto the bed, where Bergant first orally and vaginally raped her. T.B. told the nurse

that “Anthony’s brother” (i.e., Tenney) and Browning did the same thing to her.

{¶ 31} The SANE nurse testified that T.B. “looked clean” and was

“cooperative, [but] tearful at times.” The nurse did not observe any injuries on T.B.,

including on her face or her vagina, but testified that lack of vaginal injury is not

uncommon for rape. T.B. told the nurse that she had tenderness and pain on her

left shoulder. The medical records from T.B.’s hospital visit that evening indicated

that T.B. was “negative” for ear and eye pain.3

{¶ 32} The nurse administered a rape kit, which included taking anal,

vaginal, oral, and fingernail swabs and smears. Further, samples of dried stains

were taken. The SANE nurse also collected T.B.’s pants and sweatshirt; the

sweatshirt had ejaculations on the cuff.

{¶ 33} T.B. also consulted with a social worker while at the hospital. The

social worker’s report did not mention anything about an assault in the vehicle or

about four individuals being involved ─ it only referenced three assailants.

{¶ 34} The technical reviewer from the Cuyahoga County Regional Forensic

Science Laboratory who reviewed the analysis of the rape kit and evidence collected

at the hospital, as well as buccal swabs that were retrieved from all four defendants,

testified.

3The medical record indicating no eye or ear pain were recorded by someone at the hospital other than the SANE nurse. {¶ 35} The reviewer testified that seminal material was found in the vaginal

swabs, anal swabs, and a dried stain taken from T.B.’s cheek. The sperm fraction

found in the anal swab was a match to Bergant. There was no statistical match for

Tenney, Browning, or Metz from that swab. Further, a dry stain from T.B.’s check

matched codefendant Bergant’s DNA, but was not a match for the other defendants.

{¶ 36} A dry stain taken from T.B.’s lower back contained a mixture of DNA

from T.B. and Bergant. None of the other defendants were a match to that stain. As

to a dry stain retrieved from T.B.’s hair, there was DNA from T.B., Bergant, and

Tenney; there was no statistical match for Browning or Metz.

{¶ 37} There was no match for any of the defendants on the fingernail swabs.

And in regard to the vaginal swabs, a sperm fraction was found. It was inconclusive

as to Bergant, and there was no statistical support for a match in regard to Tenney,

Browning, and Metz.

{¶ 38} The matter was referred to the sex crimes and child abuse unit of the

Cleveland Police Department. The detective assigned to the case testified that he

confiscated numerous cell phones when the defendants were arrested in an attempt

to find evidence of the taping of the incident as reported by T.B., but did not find the

evidence. T.B. had testified that she provided to the detective a list of people whom

she believed may have seen the video; the detective testified that was not true ─ T.B.

never provided such a list. The detective further testified that T.B. never told him

about the couch incident. The detective admitted that there were “quite a few”

inconsistencies in what T.B. told him and what she testified to at trial. {¶ 39} As previously mentioned, the defense presented two witnesses, the

first of which was C.T. (T.B.’s boyfriend at the time of the incident). On the day he

testified, there was a warrant out for his arrest. However, about 30 to 60 minutes

before C.T. testified, the judge assigned to the arraignment room issued an order

withdrawing the warrant and scheduled for C.T. to be arraigned the following day.

C.T. testified that he was unaware of that development at the time he came to testify,

and came to testify believing that he would be arrested.

{¶ 40} C.T. testified about his relationship with T.B. According to C.T., T.B.

“would get real angry when things don’t go her way. She’ll get real mad and start

flipping out. She’s more of an angry type of person when it comes to arguing. She’s,

like, outspoken when it comes to anger.”

{¶ 41} C.T. confirmed that the night before the incident he and T.B. got into

an argument; she accused him being unfaithful to her, which he denied. According

to C.T., he spent the night at the Indiana Avenue house, separate and apart from

T.B., and the next morning he got up and told her to leave the house, believing that

their relationship was over, but she did not want to leave. C.T. then called Browning

to come get him. Browning arrived with the other defendants, and the group, which

included the defendants, T.B., and C.T., were outside on the front porch. C.T. denied

there being any mention of T.B.’s goddaughter.

{¶ 42} While on the porch, T.B. slapped C.T., and said to C.T. something to

the effect of, that if he wanted to cheat on her she was going to have sex with his

friends. When asked if he took T.B.’s threat seriously, C.T. responded, “[y]es and no. Yes, because I knew when she told me she was going to do something, she really

meant it.” So C.T. testified that when T.B. got in the car with the defendants he

believed she was going to have sex with them. C.T. testified that the defendants

specifically told T.B. that if she went with them she was going to have to perform

oral sex.

{¶ 43} According to C.T., the defendants left with T.B. in the car, but

returned approximately ten or 15 minutes later because T.B. was looking for her cell

phone. After she could not find it in the house, she returned to the car. C.T. wanted

to go with his friends, and leave T.B. at the house, but T.B. was in the car and said

she was going with them.

{¶ 44} C.T. testified that in the ten to 15 minutes the group had been gone,

he had been on “FaceTime” with Browning. He testified that Browning held his

phone so that C.T. could see T.B. in the back seat. At first C.T. testified that T.B. was

engaging in “happiness oral sex,” later, however, he testified that T.B. was giving

Tenney and Metz “hand jobs.” C.T. described T.B. as laughing, and her expression

was “happy, glad. * * * [L]ike ha, ha, more of a revenge type of thing.”

{¶ 45} According to C.T., after the group left the Indiana Avenue house the

second time, he told Browning not to bring T.B. back to his house, and Browning did

not. However, T.B. eventually returned on foot, this time with her cousin. T.B. was

“angry,” “furious,” and “out of control” because she could not find her phone.

Eventually, T.B. and her cousin left the house in a vehicle with some of the other people from the house. C.T. denied ever taking T.B.’s phone or bank card or

facilitating someone into improperly taking her bank card.

{¶ 46} During cross-examination, C.T. testified that he felt T.B.’s conduct

was disrespectful toward him because the defendants were like family to him. He

did not blame the defendants for having sex with T.B., however. C.T. admitted that

he never contacted the police to tell them his version of the events.

{¶ 47} According to C.T., D.W. and A.C. (one of the minors who frequented

the Indiana Avenue house and was close friends with Browning) witnessed the

FaceTime video call. C.T. also testified that A.C. went with him to Browning’s

lawyer’s office when he told the lawyer about the events.

{¶ 48} The second defense witness was A.C. She did not know Tenney at all,

and had just met T.B. days before the incident. A.C. spent the night at the Indiana

Avenue house the night before the day of the incident.

{¶ 49} A.C. testified that on the morning of the incident, the group was

hanging out on the front porch when T.B. and C.T. got into an argument; T.B.

accused C.T. of sleeping with other women. According to A.C., T.B. told C.T. she was

going to sleep with his friends. The defendants were not at the house when T.B.

made that comment, but they arrived about ten minutes later.

{¶ 50} As the defendants and C.T. started walking toward Browning’s

vehicle, T.B. started walking with them as well. T.B. told C.T. “no, you’re not going

with them. I’m going with them.” T.B. left with the defendants and C.T. stayed

behind. The group was gone for approximately ten minutes before they returned to the house. T.B. was in a “touchy, playful” mood, while C.T. was “distant.” The

defendants and T.B. left in Browning’s vehicle for a second time. She knew that C.T.

and the group FaceTimed but did not see what was occurring ─ she walked away as

the video call was taking place. A.C. testified that C.T. never told her what happened

on the FaceTime call.

{¶ 51} A.C. saw T.B. again later that day when T.B. returned to the Indiana

Avenue house on foot with her cousin. T.B. came in the house “yelling and

screaming about her phone,” because she could not find it. Unable to find the phone,

T.B. left in a car with someone from the house to go purchase a new phone.

According to A.C., T.B. returned to the house again, this time unable to find her bank

card, and again “yelling, screaming, and acting crazy” about it.

{¶ 52} A.C. testified that “multiple partner, group sex” was common among

her friends and that she believed C.T. engaged in it.

Assignments of Error

Metz’s Assignments of Error

I. The trial court erred in entering a judgment of conviction of rape, which was against the manifest weight of the evidence, in derogation of defendant’s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.

II. The trial court erred in entering a judgment of conviction of kidnapping, which was against the manifest weight of the evidence, in derogation of defendant’s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.

III. The trial court erred in failing to merge the offenses of rape and kidnapping. IV. The trial court erred in imposing a sentence, which was clearly and convincingly unsupported by the record.

Tenney’s Assignments of Error

I. The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29(a), on the charges, and thereafter entering a judgment of conviction of those offenses as those charges were not supported by sufficient evidence, in violation of defendant’s right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution.

II. Appellant’s convictions are against the manifest weight of the evidence.

III. The trial court erred by ordering Appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.

Browning’s Assignments of Error

I. Appellant’s convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal.

II. The convictions were against the manifest weight of the evidence.

III. Appellant’s constitutional rights were violated where defense counsel’s conduct was deficient and resulted in prejudice to Appellant.

IV. The trial court erred by denying Appellant’s request for a material witness warrant or in the alternative erred by denying Appellant’s motion for a brief continuance to compel the presence and testimony of witnesses at trial.

V. The trial court erred by failing to merge all allied offenses of similar import and by imposing separate sentences for allied offenses which violated Appellant’s state and federal rights to due process and protections against double jeopardy.

VI. Appellant’s thirty one year prison sentence is contrary to law.

Bergant’s Assignments of Error I. The trial court erred in entering a judgment of conviction of two counts of rape, one count of kidnapping, and one count of assault, which were against the manifest weight of the evidence, in violation of Defendant’s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.

II. The state failed to present sufficient evidence of the offenses charged in violation of the Fifth Amendment to the United States Constitution.

III. The trial court erred by denying Appellant’s request for a material witness warrant and for a brief continuance to compel the presence and testimony of witnesses at trial in violation of the Appellant’s right to due process and right to a fair trial.

IV. The trial court erred in failing to merge the offenses of rape and kidnapping.

V. The trial court erred in imposing a sentence which was clearly and convincingly unsupported by the record.

Law and Analysis

Sufficiency of the Evidence

{¶ 53} Tenney, Browning, and Bergant contend that the trial court erred by

denying their Crim.R. 29 motions for judgment of acquittal because the evidence

was insufficient to support the convictions.

{¶ 54} Pursuant to Crim.R. 29(A), a court “shall order the entry of the

judgment of acquittal of one or more offenses * * * if the evidence is insufficient to

sustain a conviction of such offense or offenses.” Because a Crim.R. 29 motion

questions the sufficiency of the evidence, “[w]e apply the same standard of review to

Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence.” State v. Hernandez, 10th Dist. Franklin No. 09AP-125,

, ¶ 6; State v.

Tenace,

,

,

, ¶ 37.

{¶ 55} Whether the evidence is legally sufficient to sustain a verdict is a

question of law. State v. Thompkins,

,

(1997).

Sufficiency is a test of adequacy.

We construe the evidence in a light most

favorable to the prosecution and determine whether a rational trier of fact could

have found the essential elements of the offense proven beyond a reasonable doubt.

State v. Jenks,

,

(1991), paragraph two of the

syllabus.

{¶ 56} The defendants were indicted for rape under R.C. 2907.02, which

charged them with engaging in oral sex (Count 1) and vaginal intercourse (Count 2)

with T.B. “by purposely compelling her to submit by force or threat of force.” They

were indicted of kidnapping in Count 3 under R.C. 2905.01(A)(4), which charged

that they “did, by force, threat, or deception, purposely remove [T.B.] from the place

where she was found or restrain the liberty of her for the purpose of engaging in

sexual activity.”

{¶ 57} Upon review, the state presented sufficient evidence to sustain both

the rape and kidnapping convictions as to the three defendants.

{¶ 58} The defendants’ contentions that the evidence was insufficient to

support the convictions go to the weight of the evidence, not the sufficiency of the

evidence. For example, the defendants contend that the evidence was insufficient

because the SANE nurse’s notes did not indicate injuries to T.B.’s face and vagina; or that T.B. went back to the house where C.T. was after the incident, looking for her

bank card, which according to the defendants, was an inconsistent action of

someone who had just been raped. Their contentions relate to T.B.’s credibility.

Credibility is not a consideration for us under a sufficiency-of-the-evidence review,

however. State v. Yarbrough,

,

,

.

{¶ 59} In a sufficiency-of-the-evidence inquiry, appellate courts do not

assess whether the prosecution’s evidence is to be believed; rather the court

determines whether, if believed, the evidence supports the conviction.

at ¶ 79-

80; State v. Bankston, 10th Dist. Franklin No. 08AP-668,

(noting that “in a sufficiency of the evidence review, an appellate court does not

engage in a determination of witness credibility; rather, it essentially assumes the

state’s witnesses testified truthfully and determines if that testimony satisfies each

element of the crime”). Further, “the testimony of one witness, if believed by the

[fact finder], is enough to support a conviction.” State v. Strong, 10th Dist. Franklin

No. 09AP-874,

, ¶ 42.

{¶ 60} T.B.’s testimony was sufficient to support the convictions. T.B.

testified that in the car ride to Browning’s apartment, Tenney used his hands to force

her head down onto Tenney’s lap for her to perform oral sex on him. She specifically

testified that the act was completed and that Tenney ejaculated. T.B. further

testified that Tenney was the first to sexually assault her at Browning’s apartment.

She testified that all of the acts were done against her will, and that she repeatedly requested to be driven home, but her requests were ignored. That testimony was

sufficient to support the rape counts.

{¶ 61} T.B. testified that Bergant was the next to assault her at the

apartment, vaginally raping her and making her perform oral sex on him. T.B.

testified that after Tenney and Bergant sexually assaulted her at the apartment,

Browning made them leave the bedroom and forced her to perform oral sex on him

and then he vaginally raped her, ejaculating inside of her and into her hair. This

evidence was sufficient to support the rape convictions.

{¶ 62} In regard to the kidnapping count, T.B. testified that she got into

Browning’s vehicle with the intent of annoying C.T.; she had no intention of

engaging in any sexual activity with the defendants. She testified that when the

vehicle started moving, she asked to be taken home. Browning then told her that

she was going to have oral sex with them, and Metz and Tenney thereafter forced

her to perform oral sex on them. T.B. further testified that, given what had occurred

in the vehicle, once at Browning’s apartment, she was afraid to attempt to leave.

This evidence was sufficient to support the kidnapping conviction.

{¶ 63} Only Browning was subject to the pandering obscenity count. The

charge was based on T.B.’s allegation that he was filming the assaults with his cell

phone and that some girls messaged her about seeing the video. Browning was

charged under R.C. 2907.32(A)(3), which prohibits the creation, direction, or

production of an obscene performance when the offender knows the performance

will be publicly presented. R.C. 2907.01(K) defines “performance” as “any motion picture, preview, trailer, play, show, skit, dance, or other exhibition performed

before an audience.”

{¶ 64} Browning contends that the evidence was insufficient on this charge

because none of the witnesses, including T.B., saw the video, and the investigating

detective testified that T.B. never gave him a list of the girls who messaged her about

the video, in contradiction to T.B.’s claim. We disagree and find the evidence

sufficient to support the charge.

{¶ 65} C.T. (T.B.’s boyfriend) testified that he made a FaceTime call to

Browning after the group left the Indiana Avenue house in Bergant’s vehicle.

According to C.T., Browning held up the phone so that C.T. could see what was

happening in the back seat; C.T. testified that he saw “happiness oral sex.” C.T. also

testified that D.W. (his cousin) saw the FaceTime call. That FaceTime call was

evidence of a performance before a live audience.

{¶ 66} Browning and Bergant were the subjects of the misdemeanor assault

charges. There was sufficient evidence to support them. Specifically, T.B. testified

that as she was putting her pants back on, both Browning and Bergant hit her on

the side of her face, so hard that she lost her hearing for a couple of weeks. T.B.

testified that one of the punches caused her eye to be swollen. Further, T.B. told the

responding officer about being hit. This evidence was sufficient to sustain the

misdemeanor assault convictions against Browning and Bergant.

{¶ 67} In light of the above, Tenney and Browning’s first assignments of

error, and Bergant’s second assignment of error, are overruled. Manifest Weight of the Evidence

{¶ 68} All four defendants challenge their convictions on a manifest-weight-

of-the-evidence basis.

{¶ 69} Unlike sufficiency of the evidence, “a manifest weight challenge

questions whether the state met its burden of persuasion.” State v. Bowden, 8th

Dist. Cuyahoga No. 92266,

, ¶ 13.

“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 [fact finder] 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.”

State v. Thompkins,

,

(1997), quoting State

v. Martin,

,

(1st Dist. 1983).

{¶ 70} The defendants’ contentions under manifest weight of the evidence

relate to T.B.’s credibility, and, unlike under the above analysis, are appropriate for

our consideration here. Nonetheless, we recognize that in a manifest-weight review,

the weight to be given the evidence and the credibility of the witnesses are primarily

for the finder of fact. State v. DeHass,

,

(1967),

paragraph one of the syllabus. The trier of fact has the authority to “believe or

disbelieve any witness or accept part of what a witness says and reject the rest.”

State v. Antill,

, 67,

(1964). Thus, in reviewing

criminal manifest-weight-of-the-evidence challenges, appellate courts must be mindful of the presumption in favor of the finder of fact, and defer to the factfinder’s

resolution of conflicting testimony if the greater amount of credible evidence

supports the verdict. State v. Wilson,

,

,

, ¶ 25.

{¶ 71} It is true that there are certain aspects of T.B.’s testimony that may, at

first blush, seem unusual. For example, the defendants cite that after the incident,

T.B. wanted to go back to the Indiana Avenue house, instead of her mother’s house,

as inconsistent with someone who had just been raped. T.B. provided an

explanation for that ─ she did not want her mother to see her and she wanted to

retrieve her belongings from the Indiana Avenue house ─ and the trial court believed

her.

{¶ 72} We acknowledge the inconsistencies in T.B.’s testimony and that

portions of her account may seem “unusual” as the defendants contend. There is no

prescribed manner in which a rape victim reacts to such a crime, however. The trial

judge, who also heard the inconsistencies and saw the witnesses first hand, was in

the best position to assess their credibility. After reviewing the entire record, we find

that this is not an exceptional case in which the trial court clearly lost its way in

convicting the defendants; we decline to substitute our judgment for that of the trial

court.

{¶ 73} In light of the above, we overrule Metz’s first and second assignments

of error, Tenney and Browning’s second assignment of error, and Bergant’s first

assignment of error. Ineffective Assistance of Counsel

{¶ 74} For his third assignment of error, Browning contends that his trial

counsel was ineffective because he (1) advised him to waive his right to a jury trial,

(2) failed to engage in plea negotiations, and (3) failed to secure witnesses to testify

on his behalf.

{¶ 75} The Sixth Amendment to the United States Constitution guarantees a

criminal defendant the effective assistance of counsel. McMann v. Richardson,

,

,

(1970). To prevail on a claim of

ineffective assistance of counsel, a defendant must meet the two-prong test

established in Strickland v. Washington,

,

,

(1984).

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

The defendant has the burden of proof and must overcome the strong

presumption that counsel’s performance was adequate or that counsel’s action

might be sound trial strategy. State v. Smith,

,

(1985).

{¶ 76} After the trial court had sentenced defendants Metz and Bergant,

Browning’s counsel stated that he had committed malpractice by advising Browning

to waive his right to a jury. Browning now relies solely on that statement as a ground for his counsel being ineffective. We are not persuaded. The statement was made

only in regard to what counsel anticipated would be coming Browning’s way at his

sentencing. Counsel’s advisement to Browning to waive a jury trial was a tactical

decision, not ineffective counsel. See State v. Sauers, 11th Dist. Portage No. 92-P-

0015,

, 9-10 (Dec. 11, 1992).

{¶ 77} We are also not persuaded by Browning’s contention that his counsel

failed to engage in plea negotiations. When a plea offer by the state is made to a

defendant, the law requires that defense counsel communicate the offer to the

defendant. See Missouri v. Frye,

,

,

(2012). There is no requirement that the negotiations, if any, be placed on the

record. We therefore find that Browning has failed to establish his contention that

his counsel failed to engage in plea negotiations.

{¶ 78} Browning further contends that his counsel intended to call D.W. and

her aunt to testify on his behalf, but never did. There is no indication of what these

witnesses would have testified to, however, and as such, we cannot find that the

outcome of the trial would have been different had they testified.

{¶ 79} In light of the above, Browning’s third assignment of error is

overruled.

Material Witness Warrant

{¶ 80} In Browning’s fourth assignment of error, and Bergant’s third

assignment of error, they contend that the trial court erred by denying their request for a material witness warrant or, alternatively, for a brief continuance to compel the

presence of witnesses.

{¶ 81} The record demonstrates that Bergant never requested a continuance

for the purpose of locating and compelling certain witnesses to testify. Browning,

through counsel, requested a tentative recess of the trial on March 26, 2018, before

the trial began. Prior to opening statements, Browning advised the court that the

state was not going to call a couple of witnesses, and Browning wanted to call them.

Browning’s lawyer explained:

This is a bench trial, so we’re not asking for a continuance. But we’re going to do everything that we can in the next several days to locate the witnesses to bring them in on behalf of the defense. I just wanted to give the Court a heads up. And we may need to ask you for a recess for a number days if we’re not able to get those witnesses located and get them brought to court.

* * *

I don’t want to speak for everyone ─ but that’s something that we thought we should bring to your attention at least. There may be a need at some point mid trial to ask for a recess if we can’t get those witnesses in by Wednesday.

But we don’t want to ask for a continuance, because candidly, Judge, three of the clients in this case have been in jail for a better part of a year. So we’re anxious to begin trial. We just may need to ask for recess at some point.

{¶ 82} The trial court replied: “The court would be more inclined to take

your continuance and find your witnesses before you get started because I have no

idea how long the recess will go for.” {¶ 83} Notably, Browning’s counsel was the only lawyer asking for the

tentative recess. And Browning’s lawyer did not mention requesting a warrant

during this discussion. Rather, Browning’s lawyer stated: “If we can’t find them in

a few days, I think, at that point, we would just move forward without.” Bergant’s

lawyer did not participate in this discussion and did not request a continuance, a

recess, or a warrant.

{¶ 84} The issue of a possible recess was not raised again until several days

later, on April 2, 2018, after Browning’s lawyer called C.T. and A.C. as witnesses.

The court asked if the defense was calling any other witnesses, and Browning’s

lawyer asked the trial court for more time to obtain personal service of subpoenas

for D.W. and her aunt Jody. Browning’s lawyer explained: “We attempted to

subpoena all of the witnesses who were present at the home and have been unable,

unfortunately, to get personal service for either Jody or [D.W.].” Browning’s lawyer

then asked for a recess to have the two witnesses arrested. Browning’s lawyer

acknowledged that the court had previously indicated it was not inclined to issue

material witness warrants without first obtaining personal service on the witnesses.

The trial court then stated: “Well, without personal service, I’m disinclined to issue

any material witness subpoenas.” Thereafter, Browning’s lawyer asked for a

continuance of the trial to serve the witnesses, and the trial court denied the request.

Bergant’s lawyer never requested a continuance, and the defendants rested their

cases. {¶ 85} The docket indicates that only Bergant’s counsel issued subpoenas to

D.W. and two police officers. And there is no evidence that personal service was

obtained on any of these witnesses. Thus, although Bergant issued a subpoena to

D.W., he never requested a continuance. He, therefore, failed to preserve the issue

for appeal. A party must raise an issue in the trial court in order to preserve the issue

on appeal. Niskanen v. Giant Eagle, Inc.,

,

,

.

{¶ 86} Even if the issue had been preserved for appeal, we cannot say the

trial court erred in denying Browning’s request for a continuance. We review a trial

court’s judgment denying a motion for continuance for an abuse of discretion. State

v. Unger,

,

(1981), syllabus. “An abuse of

discretion occurs when a trial court’s decision is unreasonable, arbitrary, or

unconscionable.” Blakemore v. Blakemore,

,

(1983).

{¶ 87} Bergant cites State v. Hollins, 8th Dist. Cuyahoga No. 103864, 2016-

Ohio-5521, for the proposition that the trial court abused its discretion by denying

the requested continuance to issue a material witness warrant. In Hollins, this court

found the trial court abused its discretion by refusing to grant the state’s motion for

a material witness warrant and then dismissing the indictment when the witness

failed to appear. However, the state had obtained personal service on the witness

and asked for the material witness warrant prior to trial. Id. at ¶ 6. And the state

submitted an affidavit in support of its motion averring that the witness was material because she was the alleged victim and eyewitness of the defendant’s conduct. Id.

at ¶ 7. The court did not rule on the motion until the case was called for trial and the

material witness failed to appear. The state again asked the court to grant the

material witness warrant, but the court denied the motion and dismissed the

indictment. Id. at ¶ 11.

{¶ 88} In contrast to the facts of Hollins, the trial court in this case offered to

grant the defendants a continuance in order to locate and subpoena witnesses before

the trial started. Browning’s lawyer indicated that Browning did not want a

continuance. Bergant’s lawyer remained silent and, therefore, indicated that he was

not interested in continuing the trial either. Moreover, the trial court indicated that

it was not inclined to grant a “several day recess” in the middle of trial when the

defendants could have obtained a continuance to secure the witnesses before trial.

Thus, the defendants knew before trial that they could have more time to personally

serve subpoenas on witnesses before trial, or they could proceed with the trial

knowing that the court would probably not grant a continuance at a later date. They

chose the latter option.

{¶ 89} On this record, we cannot say the trial court abused its discretion in

denying the mid-trial request for a continuance and for a material witness warrant

when the defendants had not yet obtained personal service on the witnesses and the

court gave the defendants an opportunity to secure the witnesses before trial.

{¶ 90} Therefore, Browning’s fourth assignment of error and Bergant’s third

assignment of error are overruled. Sentencing

{¶ 91} As mentioned, the trial court sentenced Metz to a 15-year prison term,

Tenney and Browning to 30-year-prison terms, and Bergant was sentenced to a 31-

year-prison term. The sentences consisted of consecutive terms. In their final

assignments of error, the defendants contend that the trial court improperly

sentenced them to consecutive terms. We agree and find that the consecutive

sentences are not supported by the record.

{¶ 92} Our review of felony sentencing must be “meaningful.” See State v.

Bratton, 6th Dist. Lucas Nos. L-12-1219 and L-12-1220,

, ¶ 8, citing

State v. Carter, 11th Dist. Portage No. 2003-P-0007,

. In order to

conduct a “meaningful review,” we are required to review the entire record,

including any reports that were submitted to the court (i.e., a presentence,

psychiatric, or other investigative report), the trial record, and any statements made

to or by the court at sentencing. See R.C. 2953.08(F)(1)-(3).

{¶ 93} After reviewing the entire record, if we clearly and convincingly

determine that the “record does not support the trial court’s findings under relevant

statutes or that the sentence is otherwise contrary to law,” then we have the

authority to “increase, reduce, or otherwise modify a sentence that is appealed under

this section or may vacate the sentence and remand the matter to the sentencing

court for resentencing.” R.C. 2953.08(G)(2); State v. Marcum,

,

,

, ¶ 1. In the final analysis, we hold that R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if they find by clear and convincing evidence that the record does not support any relevant findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code.

Marcum at ¶ 22.

Under R.C. 2953.08, appellate courts may not modify or reverse a sentence at their whim or fancy. And there is no question that trial courts have wide discretion to fashion a sentence within the statutory framework. That does not mean, however, that appellate courts should not fulfill their duty to actively review a record to determine if it supports the trial court’s sentence ─ to provide meaningful appellate review of a felony sentence.

State v. Roberts,

,

(8th Dist.), ¶ 41 (Boyle, J.,

dissenting).

{¶ 94} With the above in mind, we now consider the defendants’ sentences.

We initially note that under R.C. 2929.41(A) there is a presumption that prison

sentences for multiple offenses be served concurrently. However, R.C.

2929.14(C)(4) authorizes the trial court to order consecutive sentences if it makes at

least three distinct findings: “(1) that consecutive sentences are necessary to protect

the public from future crime or to punish the offender; (2) that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public; and (3) that one of the subsections

(a), (b) or (c) applies.” State v. Price, 10th Dist. Franklin No. 13AP-1088, 2014-

Ohio-4696, ¶ 31, citing State v. Bonnell,

,

,

. {¶ 95} Subsections (a), (b), and (c) of R.C. 2929.14(C)(4) provide as follows:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 96} In regard to subsections (a), (b), and (c), the trial court found that (b)

applied, stating,

Furthermore, the sentence is necessary because the defendant committed the offenses resulting in the aiding of the kidnapping of the victim, raping her in the car while she was being kidnapped, while the act was being filmed by codefendant Jaustin Browning and accompanied the three other defendants to Browning’s apartment where he again raped her and she was repeatedly raped by his codefendants, activity which is so severe that a single prison sentence for the offenses would not adequately reflect the seriousness of the crime.

{¶ 97} The trial court also made the required findings under R.C.

2929.14(C)(4) that consecutive terms are necessary to protect the public from future

crime by the defendants and that they are not disproportionate to the seriousness of

the defendants’ conduct and the danger they pose to the public. The trial court also

incorporated its findings into the sentencing entry, as required under Bonnell. Id.

at ¶ 29. But in accord with the discussion above, our inquiry does not end there. We must also determine whether we clearly and convincingly find that the record

supports the consecutive sentences. We find it does not.

{¶ 98} One of the troubles that we have with the sentences is in regard to the

trial court’s finding that a single prison sentence would not adequately reflect the

seriousness of the crime. Rape and kidnapping, without debate, are serious crimes.

In its findings, the trial court focused on the fact that T.B. was “repeatedly raped by

the defendants.” And each defendant was convicted and sentenced, too; we find

imputing each defendant’s conduct to the other defendants as a ground to impose

consecutive sentences unfair ─ the defendants were not charged and tried as a

coconspirators; they were codefendants. In fact, at Browning’s sentencing, the

assistant prosecuting attorney, in opposition to defense counsel’s request for the

trial judge to recuse himself given the sentences he had already handed down on

Metz (15 years) and Bergant (30 years), stated that the court “can judge each

defendant individually with regard to what was proven that each did and objectively,

as the court has.” This record does not reflect that the court judged each defendant

individually, however.

{¶ 99} We especially find Metz’s sentence disproportionate to the

seriousness of his conduct. Even by the state’s concession, Metz was “apprehensive

to participate in the gang rape.” As mentioned, his penis was flaccid when he forced

T.B. to put it in her mouth, which T.B. testified she did for “about a minute.” Metz

did not ejaculate and, moreover, he did not go into the bedroom at the apartment

where the other assaults occurred. {¶ 100} We further find troubling the trial court’s reasoning that

consecutive sentences were necessary because the crime was filmed, because no

video was ever recovered and the witnesses all testified that they had never seen one.

Further, there was inconsistency in the testimony about whether anyone had seen

the video: T.B. testified that she provided the investigating detective with a list of

people she believed may have seen it, but the detective testified that was not true.

{¶ 101} Another trouble we have is with the trial court’s findings that

consecutive sentences were necessary to protect the public from future crime by the

defendants, and that consecutive sentences were not disproportionate to the danger

they pose to the public. Implicit in those findings is a finding that, based on the

defendants’ prior criminal history, they are likely, if not incarcerated to consecutive

terms, to offend again. Metz and Tenney do not have lengthy criminal histories,

however. Metz has a limited juvenile record. Tenney has two misdemeanor juvenile

offenses, and two adult felony drug possession convictions. On this record, we

cannot agree that there exists a need to impose consecutive sentences to protect the

public from future crime by Metz or Tenney, or that they are not disproportionate

to the danger he poses to the public.

{¶ 102} We recognize that Bergant has some prior juvenile adjudications

and Browning has a lengthy juvenile record. But they were juvenile adjudications

which, under Ohio law, are treated differently from adult convictions. See generally

State v. Hand,

,

,

. {¶ 103} We further consider that “lengthy prison sentences do not make

the public safer, in part, because ‘long-term sentences produce diminishing returns

for public safety as individuals “age out” of the high-crime years.’” Mauer, Long-

Term Sentences: Time to Reconsider the Scale of Punishment, 87:1 UMKC.L.Rev.

121 (2018).

In other words, the risk an individual may pose to public safety declines with age and each successive year of incarceration is likely to produce diminishing returns for public safety. Id. at 22; see also Nazgol Ghandnoosh, The Next Step: Ending Excessive Punishment for Violent Crimes, https://www.sentencingproject.org/publications/the-next- step-ending-excessive-punishment-for-violent-crimes (accessed Aug. 14, 2019) (“Although the violent crime rate has plummeted to half of its early-1990s level, the number of people imprisoned for a violent offense grew until 2009, and has since declined by just 3%. This trend stems from increased prison admissions and sentence lengths, despite evidence that excessive penalties are counterproductive.”).

{¶ 104} There is also the consideration of the defendants’ ages ─ at the

time of sentencing they were in their early 20s. They were not juveniles, but

nonetheless they were “young offenders.” “[I]ncarceration is particularly ineffective

at reducing certain kinds of crimes: in particular, youth crimes, many of which are

committed in groups * * *.” Criminal Justice Facts, Our criminal justice system

today is like a bicycle stuck in one gear: the prison gear,

https://www.sentencingproject.org/criminal-justice-facts, copyright 2019

(accessed Aug. 14, 2019).

{¶ 105} In regard to “aging out of crime,” “[r]esearch shows that crimes

starts to peak in the mid- to late- teenage years and begins to decline when

individuals are in their mid-20’s. After that, crime drops sharply as adults reach their 30s and 40s.” Id. Thus, “‘[b]ecause recidivism rates decline markedly with

age, lengthy prison sentences, unless they specifically target very high-rate or

extremely dangerous offenders, are an inefficient approach to preventing crime by

incapacitation.’” Id., quoting the National Research Council.

{¶ 106} In addition to the concerns about what impact lengthy prison

terms have on recidivism, there is also the concern about the cost to the public for

such sentences. Indeed, the Ohio legislature has considered the tremendous cost of

incarceration:

A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.

(Emphasis added.) R.C. 2929.11(A).4

{¶ 107} There are also other collateral consequences of mass

incarceration that we should be concerned with, namely the reentry of offenders into

4There are now three overriding purposes set forth in R.C. 2929.11(A). See S.B. 66, Section 1, effective October 29, 2018. The third overriding principle is “to promote the effective rehabilitation of the offender.” The defendants were sentenced prior to the amendment’s effective date. Moving forward the trial court will be required to carefully consider and give equal weight to the new sentencing purpose of promoting “effective rehabilitation.” It is evident that S.B. 66 was formulated in an effort to reduce mass incarceration by rehabilitating individuals, expanding prison alternative programs, and reducing aggregate prison terms. The amendment to R.C. 2929.11 is not inconsequential and sentences should start reflecting the legislature’s comprehensive goals. society once their prison terms are completed. Under the sentences imposed here,

the defendants will be in their early 50s when they are released ─ that certainly

raises questions about what their lives will be like at the time, especially in terms of

finding employment and housing.

{¶ 108} Having addressed the issue of protecting the public from future

crime by the defendants, there remains the other sentencing purpose of

punishment. And as we have said, rape and kidnapping are serious and violent

crimes. This case, in our opinion, was not a “slam dunk” for the state, however.

There were credibility issues with T.B., the victim, as well as with C.T. and A.C., the

defense witnesses. However, as previously discussed, we defer to the trial court’s,

as the trier of fact, resolution of those credibility issues. But to impose such a severe

punishment on a case such as this is troubling.

{¶ 109} We do not take our position on the consecutive sentences in this

case lightly. But for too long appellate courts, including this one, have been too

much of a “rubber stamp” when it comes to sentencing, especially in instances of

excessive consecutive sentences. And we certainly are aware that there are instances

when severe, lengthy sentences are appropriate either to protect the public, punish

the offender, or both. We just do not find that to be the case here.

{¶ 110} In conclusion, we find the defendants’ assignments of error on their

consecutive sentences is well taken. We clearly and convincingly find that the record

does not support the trial court’s findings for the imposition of consecutive

sentences under R.C. 2929.14(C)(4). Thus, on the authority contained in Section 3(B)(2), Article IV of the Ohio Constitution and R.C. 2953.08(G)(2)(b), we remand

for resentencing.

{¶ 111} Metz’s fourth assignment of error, Tenney’s third assignment of error,

Browning’s sixth assignment of error, and Bergant’s fifth assignment of error are

well taken; our disposition on these assignments of error render Metz’s third

assignment of error, and Browning’s fifth and Bergant’s fourth assignments of error

moot.

{¶ 112} Judgments affirmed in part; judgments reversed in part. Case

remanded for resentencing.

It is ordered that appellants and appellee split the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

EILEEN T. GALLAGHER, P.J., CONCURS AND DISSENTS WITH SEPARATE OPINION; SEAN C. GALLAGHER, J., CONCURS AND DISSENTS WITH SEPARATE OPINION

EILEEN T. GALLAGHER, P.J., CONCURRING IN PART AND DISSENTING IN PART: [Cite as State v. Metz,

.]

{¶ 113} I concur with the majority’s conclusion that the defendants’

convictions are supported by the manifest weight of the evidence. All the defendants

attacked the victim’s credibility, arguing that her behavior after the incident in

Browning’s car and apartment was not consistent with that of a rape victim. They

also asserted that her trial testimony was not consistent with statements she made

to police and to the SANE nurse in the first few hours after the rapes. However, after

reviewing the record, I do not think this is a rare case in which the evidence weighs

heavily against conviction.

{¶ 114} As an appellate court, we are unable to view the witnesses’

demeanor, gestures, facial expressions, and voice inflections that are plainly

apparent to the trier of fact. These outward behaviors are not evident in a written

transcript. Demeanor is not what the witness says, but the manner in which he or

she says it. Demeanor evidence is invaluable in assessing a witness’s credibility, yet

it is totally lost in transmission to the court of appeals. It is for this reason that “the

weight to be given the evidence and the credibility of the witnesses are primarily for

the trier of facts.” DeHass,

,

(1967), paragraph

one of the syllabus.

{¶ 115} “Because the trier of fact sees and hears the witnesses and is

particularly competent to decide ‘whether, and to what extent, to credit the

testimony of particular witnesses,’ we must afford substantial deference to its

determinations of credibility.” Barberton v. Jenney,

, 2010-Ohio-

2420,

, quoting State v. Lawson, 2d Dist. Montgomery No. 16288,

, 4 (Aug. 22, 1997). Although we have the discretionary

power of a “thirteenth juror” to grant a new trial, that power “‘should be exercised

only in the exceptional case in which the evidence weighs heavily against the

conviction.’” Thompkins,

, 387

(1997), quoting

Martin,

,

.

{¶ 116} Despite a few exceptions, the victim’s testimony was consistent.

And although there were a few discrepancies between the victim’s testimony and

investigators’ accounts of her statements to them, I do not think these minor

differences weighed so heavily against conviction that a new trial should be ordered.

After weighing all of the evidence, including the testimony of defense witnesses that

corroborated some of the victim’s testimony, I find that the manifest weight of the

evidence supports the defendants’ convictions.

{¶ 117} I disagree, however, from the majority’s conclusion that the

defendants’ sentences are not supported by the record. The majority finds fault with

the trial court’s consideration of each defendant’s conduct in relation to the others.

They assert that because the defendants were not charged and tried as co-

conspirators, their actions should be viewed separately. But this was a gang rape.

The harm caused by each rape was compounded by the others. I believe the trial

court was correct when it found that consecutive sentences were

necessary because the defendant committed the offenses resulting in the aiding of the kidnapping of the victim, filming her being raped while being kidnapped and at his apartment and accompanied the three other defendants to Browning[’]s apartment where he raped her twice while she was repeatedly raped by his co[-]defendants, activity which is so severe that a single prison sentence for the offenses would not adequately reflect the seriousness of the crime.

(Tr. 754-756.)

{¶ 118} Therefore, I respectfully dissent.

SEAN C. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN PART:

{¶ 119} Upon reviewing the entire record, I believe the defendants’

convictions should be reversed as being against the weight of the evidence, but I

concur with the decision to reverse the imposition of consecutive sentences for the

reasons in this opinion.

{¶ 120} The account of events related by the victim at trial was at times

different from (1) the account she provided immediately after the incident, and (2)

the accounts she provided throughout the subsequent investigation. But make no

mistake, the problem with these cases does not entirely lie with inconsistencies in

the victim’s version of events. The trier of fact may consider all evidence, including

any inconsistencies within that evidence, and still reach a conclusion that an

offender is guilty of the charged crime. The inconsistencies weigh on this process,

but are not dispositive in and of themselves. The primary problem in this case is

that the state failed to offer an explanation harmonizing the victim’s divergent story

lines for the purpose of demonstrating that the greater weight of credible evidence

proved the defendants’ guilt beyond a reasonable doubt. State v. Thompkins,

,

,

. In these cases, the trier of fact was not offered any explanation upon which an overall credibility determination could

have been made in the state’s favor. The state had every opportunity to address the

inconsistencies, but instead the state largely ignored the inconsistent versions of

events and the late disclosures that occurred for the first time at trial.

Standard of Review: Manifest Weight of the Evidence

{¶ 121} When reviewing the weight of the evidence, unlike sufficiency review

that tests the adequacy of the evidence in a light most favorable to the state, appellate

courts address the “evidence’s effect of inducing belief.” State v. Wilson,

,

,

, ¶ 25, citing Thompkins at 386-387.

In undergoing this review, appellate courts must “ask whose evidence is more

persuasive ─ the state’s or the defendant’s?” Id. This means that

‘The [reviewing] court * * * weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’

Eastley v. Volkman,

,

,

, ¶ 20,

quoting Tewarson v. Simon,

,

(9th

Dist. 2001) (ellipsis and alterations sic). Appellate courts do not defer to the trier of

fact when reviewing the weight of the evidence. We sit as the thirteenth juror with

the ability to disagree with the factfinder’s resolution of the conflicting testimony.

Thompkins at 387, citing Tibbs v. Florida,

,

,

(1982). {¶ 122} The majority defers to the trial court’s ability to observe the

witnesses’ testimony firsthand, concluding that the trial judge was in the best

position to assess credibility and weigh the evidence based on the witnesses’

demeanor, gestures, facial expressions, and so forth. That deference to the trier of

fact’s ability to observe the demeanor, gestures, and voice inflection, stems from the

now-defunct civil manifest-weight-of-the-evidence standard and has no place in

criminal cases, much less within the standard of reviewing the weight of the

evidence. Wilson at ¶ 24. Regardless, the Ohio Supreme Court has eliminated the

civil standard in favor of the criminal standard as announced in Thompkins.

Volkman at ¶ 20.

{¶ 123} This step alone, however, was not sufficient to stem the tide of

cases that claim the weight of the evidence includes a deferential standard that

permits appellate courts to defer to the trier of fact’s weighing of the evidence and

credibility determinations. In all such instances, there is a claim, or a derivation of

a similar theme, that the weight of the evidence and credibility of the witnesses is

primarily for the trier of fact. See, e.g., State v. Heard, 8th Dist. Cuyahoga No.

107777,

, ¶ 25, citing State v. Bradley, 8th Dist. Cuyahoga No.

97333,

, and State v. DeHass,

,

(1967); State v. Becker, 8th Dist. Cuyahoga No. 100524,

;

State v. Rexrode, 10th Dist. Franklin No. 17AP-873,

; In re

N.Z., 11th Dist. Lake Nos. 2010-L-023, 2010-L-035, and 2010-L-041, 2011-Ohio- 6845, ¶ 35, citing DeHass. The majority, in both the majority and the concurring

opinions, cites this proposition as well.

{¶ 124} In one form or another, this language — that credibility

determinations are primarily for the trier of fact — comes from the sufficiency-of-

the-evidence review. DeHass; State v. Antill,

, 67,

(1964). It is unclear why appellate courts have inserted this approach into weight-

of-the-evidence review. In DeHass, for example, the Ohio Supreme Court held that

in civil and criminal cases, the weight to be given the evidence and the credibility of

witnesses are primarily for the trier of fact and a reviewing court may not reverse a

judgment where the record demonstrates that the verdict is based on sufficient

evidence.

at syllabus. Despite the unambiguous implications that DeHass is

specifically referencing sufficiency analysis, courts cite DeHass in support of the

standard of review with respect to the manifest weight of the evidence. See, e.g.,

State v. Hale, 8th Dist. Cuyahoga No. 107646,

; State v.

Riggins, 1st Dist. Hamilton No. C-180069,

; State v. Loomis,

10th Dist. Franklin No. 17AP-843,

. By deferring to the trier

of fact’s credibility determinations when reviewing the weight of the evidence, the

appellate courts accept the evidence in favor of the verdict while discounting the

evidence favorable to the defendant. In essence, this is sufficiency review

masquerading as weight-of-the-evidence review.

{¶ 125} The Ohio Supreme Court does not follow this approach. In direct

review of capital cases, the Ohio Supreme Court cites DeHass, or another case with a similar conclusion, in addressing the sufficiency of the evidence, but when

addressing the standard underlying the weight of the evidence, the court shifts to

Thompkins and the thirteenth-juror concept. For example in State v. Hunter,

,

,

, ¶ 2, the Ohio Supreme Court

affirmed a capital conviction in which both sufficiency and the weight of the

evidence were at issue. In relating the sufficiency standard of review, the court noted

that the weight of the evidence and the credibility of the witnesses are primarily for

the trier of fact. Id. at ¶ 118, citing DeHass; see also State v. Walker,

,

,

, ¶ 12 (weight and credibility of witnesses are

matters primarily for the trier of fact in determining whether the evidence is

sufficient to support the verdict); State v. Pickens,

, 2014-Ohio-

5445,

(same as Walker). In other words, the sufficiency

review is born from the deference given to the trier of fact’s ability to observe the

witnesses at trial and weigh the conflicting evidence.

{¶ 126} However, in addressing the weight-of-the-evidence argument,

the Ohio Supreme Court shifts its analysis. “A claim that a verdict is against the

manifest weight of the evidence involves a different test.” Hunter at ¶ 119. The court

then cites the Thompkins thirteenth-juror analysis in which the appellate court must

resolve the conflicting evidence and consider the credibility of the witnesses from its

review of the record. Id. Under the weight-of-the-evidence review, the court in

Hunter concluded that despite the discrepancies in the record, and after reviewing

the entire record, the court was unable to conclude that the testimony was not inherently unreliable or unbelievable. Id. at ¶ 128. Thus, the Ohio Supreme Court

does not defer to the trier of fact’s ability to observe the witness’s demeanor when

reviewing the weight of the evidence.

{¶ 127} The majority and the separate concurring opinions, cite DeHass,

,

, in overruling the defendants’ manifest-weight-

of-the-evidence review, claiming that the weight of the evidence and the credibility

of the witnesses is primarily for the trier of fact. Disregarding the inherent

contradiction in that citation, for how can one simultaneously review the weight of

the evidence while deferring to the trier of fact’s determination as to the weight of

the evidence, DeHass specifically applies to the sufficiency-of-the-evidence analysis.

(after setting forth the deferential standard, the court expressly stated that

“In conclusion, * * * there was evidence sufficient to support the verdict * * *). The

citation to Antill,

, 67,

, falls prey to the same analysis.

In Antill, the Ohio Supreme Court deferred to the trier of fact specifically under the

sufficiency-of-the-evidence analysis.

(after citing the deferential standard the

court stated that “[w]e, therefore, find that there was sufficient evidence in this cause

* * *.”). (Emphasis added.)

{¶ 128} It is for this same reason that the separate concurring opinion’s

reliance on Barberton v. Jenney,

,

,

, citing State v. Lawson, 2d Dist. Montgomery No. 16288, 4,

(Aug. 22, 1997), is misplaced. In Jenney, the Ohio Supreme Court

was expressly deciding whether there was sufficient evidence in support of the conviction. Id. at ¶ 14, 22. That case does not involve a weight-of-the-evidence

review, and quite simply we cannot inject sufficiency law into the weight-of-the-

evidence standard.

{¶ 129} It is for this reason that the majority and concurring decisions to

overrule the defendants’ weight-of-the-evidence argument, based on the claim that

the finder of fact “was in the best position to assess [the witnesses’] credibility,” is

misplaced — the incorrect standard is being used. By deferring to the trier of fact’s

credibility determinations, which weighed in the state’s favor in light of the verdict,

the majority is essentially performing a sufficiency-of-the-evidence review in which

all credibility determinations are found in favor of the state. It may well be time that

the Ohio Supreme Court review the continued use of DeHass, or a similar sufficiency

case, within the weight-of-the-evidence standard of review. Regardless, the majority

and concurring decisions ignore the Thompkins standard and simply defer to the

trial court’s weighing of the evidence and credibility determinations.

Weight of the Evidence: the Conflicting Testimony

{¶ 130} It is on this last point that my opinion diverges from my

colleagues. I believe the convictions are against the weight of the evidence and these

cases should be remanded for a new trial. Under Thompkins,

,

,

, we must weigh the conflicting evidence and all

reasonable inferences, independently consider the credibility of witnesses, and

determine whether in resolving conflicts in the evidence, the finder of fact clearly

lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Volkman,

, 2012-Ohio-

2179,

, ¶ 20. Under this standard, I cannot conclude that the state

met its burden to prove the defendants’ guilt beyond a reasonable doubt.

{¶ 131} The victim’s story was inconsistent, even throughout the trial. On this

point, the lead detective’s trial statement that the victim inconsistently described

“the suspects, who they are, what they did, where this occurred, in the home, in the

bedroom” haunts this case. But, as mentioned before, it is not the inconsistencies

in and of themselves that are dispositive; it is the state’s inability to offer a reason

upon which it could be determined that the state’s case is based on the greater weight

of credible evidence despite the inconsistences.

{¶ 132} The victim’s initial reporting of the crime differed remarkably

with the crimes actually charged. This is not simply a minor discrepancy that can

be disregarded. When the victim spoke with the emergency dispatcher, she claimed

that Browning, Bergant, and the victim’s boyfriend C.T. physically assaulted and

robbed her at an apartment on West Boulevard (Browning’s apartment). This

statement was inconsistent with the victim’s trial testimony in which she claimed

her phone and bank card were stolen at the east side home of the victim’s friend.

The victim stated that her boyfriend put her in a chokehold and then the trio stole

her cell phone and credit card before driving her back to her mother’s house. The

dispatcher then asked if the victim had been kidnapped, which elicited an

affirmative response. The victim’s statements to the emergency dispatcher do not appear to be the basis of any indictment, and further, neither the state nor the police

interviewed the victim’s boyfriend — the alleged perpetrator of the crime.

{¶ 133} None of those claims were investigated, much less led to any

indictments. Importantly, the victim, at trial, claimed that she reported a sexual

assault to the emergency dispatcher because her father mentioned the “assault” to

the dispatcher. The problem with that statement is that C.T. did not participate, was

not alleged to have participated, and did not become the subject of the sexual assault

allegations. The victim’s attempt to claim she reported the assault, to mean the

sexual assault, introduced more inconsistencies into the trial than it resolved.

{¶ 134} According to the responding police officer’s report and

testimony, the victim changed the narrative from what was initially reported. The

state claims that the victim was hesitant to disclose the sexual assaults in front of

her parents, although in contrast she testified that she told them of the rapes before

calling the emergency dispatcher. The victim told the responding officer that

Browning and Bergant picked her up from the east side location. According to the

responding officer, the victim claimed that Browning and Bergant then drove to pick

up Bergant’s brother Tenney, whom the victim only knew as “Bergant’s brother,”

and an unknown fourth person (this person was never identified in the record). It

was then that the group proceeded to Browning’s West Boulevard apartment, where

the three men (Browning, Bergant, and Tenney) forced the victim into the bedroom

to facilitate the rapes. The responding officer was not told about Metz’s involvement

or about any sexual activity occurring in the car. In addition, this was the last time that the victim mentioned that only two persons were initially in the car and the

other two persons were picked up along the way.

{¶ 135} According to the medical records, the victim told the examining

nurses that she was vaginally and orally raped by three men, Browning, Bergant,

and Tenney, although Tenney was again identified as Bergant’s brother. It was

noted that the victim did not contaminate or wash away the physical evidence

between the alleged assaults and her arrival at the hospital. The examining nurses

were not told about a fourth person’s involvement. The victim told the examining

nurse that during the car ride, Tenney unzipped his pants and pulled the victim’s

head down, forcing her to perform fellatio. The victim did not mention Metz’s

involvement to the nurse, who testified to writing “down verbatim what [the victim]

tells me.” The victim claimed at trial that she told the nurses about Metz’s

involvement and the nurses must be mistaken.

{¶ 136} According to what the victim told the healthcare professionals,

when the defendants and the victim arrived at Browning’s apartment, the three

defendants pushed her into the bedroom and Bergant was the first to vaginally rape

the victim after forcing her to perform fellatio on him. When Bergant left the room,

Tenney and Browning both vaginally raped the victim for about an hour. According

to the victim’s statement to the nurses, none of the defendants used condoms. The

victim told the nurse that the defendants orally and vaginally raped her and

ejaculated on her face, back, and sweatshirt (the sweatshirt was preserved, but there

was no discussion of any forensic testing on the sweatshirt at trial). After the assaults, according to the victim’s trial testimony, Browning allegedly punched the

victim in the face with enough force to cause her eye to swell shut. The examining

nurse did not record or otherwise observe any signs of trauma to the victim’s face,

but she noted that the victim complained of shoulder pain, latent pain around the

orbital bone of her eye, and ringing in her ear.

{¶ 137} It is not clear from the record, but it appears the victim disclosed

to the investigating detective that Metz was a fourth person involved in another

sexual assault that occurred during the car ride. This differed from her initial

statement to the responding officer that only Bergant and Browning were in the car

initially and that Tenney and an unknown individual were picked up along the way.

It also differed from her statement to the nurses in which Tenney was the only

person to assault her during the car ride. According to the prosecutor’s opening

statement at trial, the anticipated evidence would demonstrate that Metz’s

involvement was limited to attempting to pull the victim’s pants off while the victim

was orally raped by Tenney in the initial car ride. The prosecutor did not indicate

an attempt to prove that Metz actually committed rape. When confronted at trial

with the conflicting statements given to investigators and healthcare personnel

about Metz’s involvement, the victim doubled-down on her view that law

enforcement and the healthcare professionals were mistaken, necessarily pitting her

credibility against theirs.

{¶ 138} At trial, the victim claimed that she was forced to perform fellatio

on Metz first, but he remained flaccid during the encounter; but the testimony establishing penetration having occurred was not straightforward. During her

direct examination, the victim testified that she was able to stop Metz from pulling

her head down so that no penetration had occurred. During cross-examination by

Browning’s counsel, however, the victim claimed that penetration did occur.

Regardless, the state offers no explanation for its limiting Metz’s involvement to

attempting to pull the victim’s pants off when relating the anticipated facts in the

opening statement as compared to the victim’s trial testimony.5

{¶ 139} After arriving at the West Boulevard apartment, according to the

victim, Bergant parked the car in the attached parking lot. The defendants walked

toward the apartment, and the victim voluntarily followed. Once inside the

apartment, the victim testified that Browning, Bergant, and Tenney entered the

bedroom first and she followed — a detail contradicting her earlier statements to the

nurses and the responding officer in which she claimed that the defendants forced

5In the opening statement, the state claimed: “And during this ride, Richard Tenney forces [the victim] to give him oral sex. And during this drive, it’s Anthony Metz who is trying to pull down [her] pants from the other side.” Tr. 20:13-17. That is in stark contrast to the state’s closing argument:

And here we heard testimony from [the victim] that in the car it was Anthony Metz sitting on her right, Tenney sitting on her left. She said as soon as she got in the car, Metz started pulling down his pants and he started unzipping his pants and then he grabbed [the victim] by her head. [Metz] was sitting on the right of her, and she was in the center. He grabbed her head with both of his hands and he pushed her down on his penis with her mouth. She said that he was not successful at first, and then eventually she was able to push her head up. She said that he was pushing her down, but she was able to get up.

Tr. 652:7-21. or pushed her into the bedroom. According to her trial testimony, Tenney was the

first to vaginally rape her, immediately followed by Bergant — which contradicted

the victim’s narrative to the nurses in which Bergant was first. Browning sat on a

dresser in the bedroom and held his phone in such a manner as it suggested that he

was recording the events. After Tenney and Bergant finished, with Bergant

ejaculating during the vaginal penetration, the victim walked into the living room

where Metz had remained, and an unknown defendant pushed her on the couch and

vaginally raped her from behind. The couch incident was never reported to the

responding officer, the detective, or the healthcare professionals. When confronted

with that fact at trial, the victim claimed she told “everyone” about the incident on

the couch, and she could not explain why no one recorded that fact in their notes.

The state offered no further explanation on this point.

{¶ 140} After the incident on the couch, the victim testified that she again

followed the defendants back into the bedroom when Bergant raped her. After

Bergant finished, Browning forced the others to leave and then he vaginally raped

the victim. The victim testified that Browning ejaculated during the vaginal

penetration and then into her hair — a statement that was not demonstrated by the

forensic evidence, which excluded Browning as a contributor to the material

collected from the hair (in actuality no seminal fluid was recovered from the victim’s

hair) and excluded Browning as a contributor to any of the DNA samples preserved

in the vaginal swabs. The state did not offer any explanation for the differences

between the testimony and the physical evidence. {¶ 141} The defendants took the victim back to her mother’s house. The

victim, according to her testimony, refused to get out of the car. She insisted on

being returned to the east side location from which the series of events began. After

walking back to the east side location, the victim claims to have told one of her

friends of the rape before reporting it to her parents and the police. The state

originally subpoenaed that friend to testify but inexplicably withdrew the subpoena

on the day of trial. The defendants were not able to perfect service of their own

subpoena before trial. The trial court refused to issue a bench warrant or to delay

the bench trial, once it commenced, in order for the defense to ensure her

appearance. In addition, the trial court refused to permit the detective to discuss

the course of his investigation with respect to the victim’s friend, sustaining almost

every objection to the cross-examination on that point for an unexplained reason.

{¶ 142} During her direct examination, the victim testified that she had

no knowledge of what happened to the video she claims Browning took — when

asked during her direct examination if she knew what happened to the video, the

victim unambiguously responded, “I have no clue.”

{¶ 143} During her cross-examination, however, the victim changed the

narrative and claimed that undisclosed females “messaged” her on Facebook

referencing the video. She was unsure how many of the girls contacted her, claiming

a handful or six had seen the video. The victim claimed she told the investigating

detective of the encounter and provided a list of names, but the detective testified to

the contrary. Likewise, the state’s opening statement was limited to the fact that the investigating detective was unable to find evidence of the video — the prosecutor did

not mention the “messaging” incident in the opening statement although the

victim’s “messaging” testimony was relied on during the closing argument. The state

never explained why it left the messaging incident out of its opening narrative meant

to foreshadow the state’s anticipated trial evidence.

{¶ 144} The state presented forensic evidence implicating Bergant to

have engaged in sexual conduct with the victim through the testing of seminal

material; the DNA evidence with respect to the other defendants was innocuous at

best. Bergant was identified through the seminal material from the samples

preserved in the anal swab and the swab of the dried stain on the victim’s cheek. The

sperm inclusion from the vaginal swab was inconclusive as to Bergant, and excluded

the other defendants as contributors. Browning was identified through an

inconclusive epithelial fraction from a sample collected from under the victim’s

fingernail. Tenney was identified through an epithelial fraction from the hair swab,

also from material not identified as seminal material (the hair swab was preserved

based on the victim’s claim that Browning ejaculated in her hair). The victim,

however, was undisputedly in Browning’s apartment and bedroom and sat next to

Tenney during the car ride. Identifying Browning and Tenney through that

material, which was not identified as seminal fluid, does not give rise to any

inference of wrongdoing — at best, it is only probative of proximity, which is

undisputed in this case. State v. McNew, 2d Dist. Montgomery No. 22902, 2009-

Ohio-5531, ¶ 45 (state failed to prove digital penetration because the victim’s DNA found on the defendant’s hand could not be identified as vaginal fluid and the victim

and defendant resided together, explaining the presence of the victim’s DNA).

{¶ 145} There is no dispute that the testimony of the victim is the sole

evidence upon which Metz’s, Tenney’s and Browning’s convictions rest. Although

the state presented forensic evidence implicating Bergant in having sexual contact

with the victim, in light of my conclusion that other defendants require a new trial,

so, too, must Bergant. In this joint trial, the problems with the verdict with respect

to three of the four offenders, at the least, cast doubt on Bergant’s conviction.

{¶ 146} In order to find the defendants guilty of rape and kidnapping

beyond a reasonable doubt, the victim would have to be given the benefit of every

doubt in light of (1) the inconsistent narrative; (2) her trial testimony that conflicted

with itself, the reporting to the nurses, the responding officer, and the detective; and

(3) her testimony that conflicted with the physical evidence the state presented. In

order to affirm, we would have to disregard the clear inconsistencies while accepting

the evidence favorable to the state.

{¶ 147} If her trial testimony was inconsistent with the narrative related

to the nurses and investigators but the forensic evidence supported her testimony,

or vice versa, that would be a different case. See, e.g., State v. Henderson, 10th Dist.

Franklin No. 10AP-1029,

, ¶ 26 (the lack of any forensic evidence is

not dispositive when the victim’s testimony is corroborated by the consistent

statements the victim made to treating nurses performing the rape examination);

People v. Kotko, Cal.App. No. C079944,

, 54 (Feb. 1, 2019) (conflicting forensic evidence is not dispositive in light of the

“remarkably coherent” and consistent testimony of the victim). If that were the case,

there would be an explanation harmonizing the inconsistencies upon which the trier

of fact could have found the defendants’ guilt beyond a reasonable doubt. But in this

case, we are asked to review a case in which the victim provided an inconsistent

narrative up to and throughout trial, parts of which were in conflict with the medical

and investigative records and testimonial evidence, and inconsistent with the

physical evidence. Further, the victim pitted her credibility against that of the

healthcare professionals, the responding officer, and the detective in claiming she

disclosed facts each witness did not report. All of these factors must be considered

in our review of the weight of the evidence and the credibility of the state’s case in

general.

{¶ 148} There may be explanations to harmonize the inconsistencies in

the victim’s testimony, her reporting, and the physical evidence, but the state has

not provided any within the current record. For example, the state claims that the

conviction is not against the weight of the evidence because the victim “had DNA of

both Tenney and Bergant in various locations on her body” as proof that all four

defendants raped the victim. The inference from the DNA evidence relating to

Tenney, however, was not of criminal wrongdoing, but of proximity. McNew, 2d

Dist. Montgomery No. 22902,

, at ¶ 45 (state failed to prove digital

penetration because the victim’s DNA found on the defendant’s hand could not be

identified as vaginal fluid and the victim and defendant resided together, explaining the presence of the victim’s DNA). The forensic evidence identifying Tenney was

limited to an epithelial fraction recovered from the victim’s hair, a sample that was

not identified as seminal material. If the state’s argument is taken at face value, the

individual vaginal rapes are proven through the inference that one of the defendants

committed rape. On this point, it is important to note that none of the defendants

were charged with or convicted of conspiracy or complicity. Each of the defendants

was convicted as the principal offender for his own actions, a point the state

emphasizes in its briefing. The state’s argument is not persuasive and does not

address the inconsistencies in this record.

{¶ 149} It is important to note that there is no assertion that the victim

was untruthful, but instead, my decision is a reflection of the overall credibility of

the state’s case in chief that is based on the totality of the state’s evidence and the

lack of explanation resolving conflicting testimony. It is not the role of an appellate

court to determine whether the events actually transpired, but it is more aptly

described as determining whether the state has proven the crime with credible

evidence beyond a reasonable doubt in the court of law. “‘[M]anifest weight of the

evidence’ refers to a greater amount of credible evidence and relates to persuasion *

* *.” Volkman,

,

,

, at ¶ 19. In this

case, the state has not presented any explanation harmonizing the inconsistencies

with respect to the evidence that directly impact the elements of the crimes for which

the defendants were convicted. I would reverse the convictions as being against the

weight of the evidence and remand for a new trial. {¶ 150} In light of the foregoing, I concur with the majority’s decision to

reverse the imposition of consecutive sentences in this case. At the very least, given

the overall lack of overwhelming evidence presented by the state, an argument could

be made that it could be found by clear and convincing evidence that the consecutive

sentence findings are not supported by the record. The trial court generally found

that consecutive service is necessary to protect the public from future crime or to

punish the defendants; that the consecutive sentences are not disproportionate to

the seriousness of the defendants’ conduct and to the danger the defendants pose to

the public; and that the defendants’ history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by

defendant. As the majority points out, none of the defendants has a significant or

violent criminal history.

{¶ 151} The same credibility determination that undermined, in my

view, the state’s case in chief, infected the sentencing decision under R.C.

2929.14(C)(4). For instance, with respect to the finding that consecutive service was

not disproportionate to the defendants’ conduct, Metz, who by all accounts was the

least culpable, received the same consecutive sentences as the rest of the offenders.

Further, his conviction especially rested on the most tenuous evidence — his guilt

for the rape was not demonstrated until the victim’s cross-examination in which she

clarified that penetration occurred and the allegation of Metz having committed

rape did not occur until trial. Further, the majority’s discussion of the defendants’

lack of a criminal record supports the need to fully address the consecutive sentencing review. On this point, I agree with the determination to reverse the

imposition of consecutive sentences.

{¶ 152} And finally, I disagree that there is sufficient evidence in support

of Browning’s conviction for pandering an obscene performance. The majority

relies on C.T.’s testimony that he viewed the video recording of the victim

performing sexual acts on Tenney and Metz in the back of the car. The state did not

rely on that testimony, and in fact, asked the trier of fact to disregard all of C.T.’s

testimony as being incredible. Tr. 658:13-21, 659, 661:18-23, 721:9-12, 733:19-20.

At trial the state solely relied on the dissemination of the purported video that

Browning allegedly made in the apartment as a basis for the pandering conviction.

{¶ 153} The existence of the video recording is not the dispositive issue

in this case. The recording itself is more aptly described as “material,” which is

defined to include a motion picture film or “other tangible thing capable of arousing

interest through sight, sound, or touch” including an image or text appearing on a

computer monitor or similar display. R.C. 2907.01(J). Pandering obscene material

falls under R.C. 2907.32(A)(1). In this case, the indictment was specifically based

on R.C. 2907.32(A)(3), which expressly criminalizes the creation, direction, or

production of an obscene performance when the offender knows the performance

will be publicly presented. Under R.C. 2907.01(K), “performance” is defined as “any

motion picture, preview, trailer, play, show, skit, dance, or other exhibition

performed before an audience.” (Emphasis added.) “Publicly” is defined as

“openly. In public, well known, open, notorious, common, or general, as opposed to private, secluded or secret.” State v. Edmiston, 8th Dist. Cuyahoga No. 93397,

, ¶ 24, quoting Black’s Law Dictionary 1107 (5th Ed. 1979).

{¶ 154} Even considering that testimony in a light most favorable to the

state, there is no evidence demonstrating that Browning created or produced the

obscene performance knowing it would be publicly presented. The “performance”

in this case occurred in a private apartment and not before a public audience such

that we could conclude that the performance itself was publicly presented. See

Edmiston (the “performance” of the defendant masturbating in front of women took

place in a public elevator open to public viewing). The threat to disseminate the

obscene material, i.e., the recording of the “performance,” related to proving the

elements of a crime for which Browning was not charged. The state’s argument is

that the video recording itself was publicly disseminated, as demonstrated by the

victim’s testimony that the unknown persons referenced the video’s existence. That

is a criminal act under R.C. 2907.32(A)(1), a section not relevant to Browning’s

conviction for violating R.C. 2907.32(A)(3). I would conclude that there is

insufficient evidence to support the pandering obscenity conviction in this case.

{¶ 155} In summary, I believe the defendants are entitled to a new trial

based on the majority’s application of the incorrect standard of review and I would

remand for a new trial on all counts except the pandering conviction as it relates to

Browning. I concur with the decision to reverse the imposition of consecutive

sentences.