[Cite as State v. Jones,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

STATE OF OHIO, : : Case Nos. 20CA2, 20CA3, 20CA4 Plaintiff-Appellee, : : v. : DECISION AND JUDGMENT : ENTRY JEFFERY W. JONES, : : RELEASED: 07/26/2021 Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Kathryn Cornelius-Blume, Lancaster, Ohio, for Appellant.

Ryan R. Black, Hocking County Prosecuting Attorney, and Ryan W. Stickel, Assistant Hocking County Prosecutor, Logan, Ohio, for Appellee. _____________________________________________________________

Wilkin, J.

{¶1} This is a consolidated appeal from three Hocking County Court of

Common Pleas judgments memorializing jury verdicts that found appellant,

Jeffery W. Jones, guilty of multiple criminal offenses, and the accompanying

entries that sentenced him to an aggregate prison term of 20 to 28 ½ years.

{¶2} In case no. 20CA2, the trial court imposed a 12-month prison

sentence for aggravated possession of drugs to be served concurrent to the

prison sentences in case nos. 20CA3 and 20CA4. Appellant asserts a single

assignment of error in this case: appellant’s conviction for aggravated possession

of drugs is against the manifest weight of the evidence.

{¶3} In case no. 20CA3, the trial court imposed a 12-month prison

sentence for breaking and entering to be served consecutive to the prison Hocking App. Nos. 20CA2, 20CA3, and 20CA4 2

sentence in case no. 20CA4. Appellant has not asserted any assignments of

error in this case.

{¶4} In case no. 20CA4, the trial court imposed a 19 to 28 ½ year prison

sentence for kidnapping and attempted rape to be served consecutive to the

1-year prison sentence in case no. 20CA3, for an aggregate prison term of 20 to

28 ½ years. Appellant asserts five assignments of error in this case: (1) the trial

court violated appellant’s Fifth Amendment rights when it failed to merge

appellant’s attempted rape and kidnapping convictions, (2) there was insufficient

evidence presented at trial to convict appellant of kidnapping, (3) appellant’s

convictions for attempted rape, kidnapping, and abduction were against the

manifest weight of the evidence presented at trial, (4) the trial court abused its

discretion when it excluded evidence to impeach the alleged victim, and (5) the

trial court erred as a matter of law, whereas appellant’s sentence was contrary to

law.

{¶5} Having reviewed the record, appellant’s arguments, and the

applicable law, in case no. 20CA2, we overrule appellant’s sole assignment of

error. In case no. 20CA4, we sustain appellant’s first assignment of error and

remand for resentencing, overrule his next three assignments of error, and

decline to rule on his fifth assignment of error because it has been rendered moot

by our decision sustaining appellant’s first assignment. Therefore, we affirm in

part, and reverse in part, the trial court’s judgment entries herein, and remand

this cause for the trial court to merge appellant’s convictions for attempted rape

and kidnapping and to resentence appellant accordingly. Hocking App. Nos. 20CA2, 20CA3, and 20CA4 3

{¶6} We will address appellant’s appeal by case number, starting with

case no. 20CA2 and then case no. 20CA4.

1. Case No. 20CA2

BACKGROUND

{¶7} The state charged appellant with aggravated possession of drugs

(Methamphetamine) in violation of R.C. 2925.11(A) & (C)(1)(a), a fifth-degree

felony. During appellant’s trial, Officer Scott Mingus, of the Logan Police

Department, testified that on the evening of December 11, 2018, he stopped a

blue Pontiac because its license plate indicated that it belonged to a silver

Honda. The stop was recorded on both the officer’s cruiser cameras and his

body camera. There were four individuals in the car. Appellant was sitting in the

right rear passenger seat. Mingus learned that the driver had an outstanding

warrant, as did appellant. Mingus called for backup. He stated that when Officer

Alford arrived, he informed the occupants of the vehicle that a drug-detecting

canine was going to circle the vehicle. Mingus testified that the canine “indicated

on the right rear passenger door.” The officers removed the driver, Jeremy

Haybron, and appellant from the vehicle. Mingus did a pat-down search of

Haybron for weapons, and then placed him in the back seat of his cruiser.

Officer Mingus’ body camera recorded this conversation after appellant was out

of the vehicle:

Officer Mingus: What’s this, a flashlight? Appellant: Flashlight. In [the vehicle] is drug paraphernalia in that blue case. It is mine. Officer Mingus: Okay. The blue case has drug paraphernalia and it is yours? Appellant: It is mine. Hocking App. Nos. 20CA2, 20CA3, and 20CA4 4

*** Officer Mingus: Go ahead and just put your hands behind your back. Appellant: All right. *** Officer Mingus: Here’s what I want you to do. Turn – turn your wrists like you are praying. I think it will be more comfortable that way. Okay. What just fell out of your pocket there, partner? Appellant: Out of my pocket? There’s nothing in my pocket. Officer Mingus: No, it just fell because I got it on camera so let’s not – it’s not the time to lie. What’s in the pink baggie? Appellant: Ice.1 Officer Mingus: Ice? Appellant: Yeah. It didn’t fall out of my pocket, though, but that’s what it looks like. Officer Mingus: Okay. Appellant: I – I didn’t have – I got holes in my pockets.

After he finished handcuffing appellant, Mingus picked up the pink baggie, and

placed appellant in the back seat of his cruiser with Haybron.

{¶8} The video from the rear-facing camera in Officer Mingus’ cruiser was

then played for the jury, which recorded the appellant and Haybron having the

following conversation:

Appellant: Fucking fell out of my jacket. I couldn’t get it stopped. Fuck. Did they find yours? Haybron: Don’t say anything here. Appellant: Man, being recorded.

ASSIGNMENT OF ERROR

APPELLANT’S CONVICTION FOR AGGRAVATED POSSESSION OF DRUGS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

{¶9} Appellant alleges that his conviction for aggravated possession of

drugs was against the manifest weight of the evidence because the state did not

prove that he possessed the methamphetamine found in the pink baggie.

1 “ ’Ice’ means crystal methamphetamine.” State v. Anderson, 4th Dist. Lawrence No. 17CA6,

, ¶ 11. Hocking App. Nos. 20CA2, 20CA3, and 20CA4 5

Although the officers were operating body cameras as well as a dash camera on

a cruiser, there was no video of appellant dropping the pink baggie. Appellant

claims that other passengers were less than truthful regarding their ownership of

illegal substances found in the car. He states that he was “honest” in admitting

that a blue bag of drug paraphernalia inside the vehicle was his; therefore, his

statement that the pink baggie was not his should be interpreted truthfully as

well. Appellant also cites the fact that he had various holes in the pockets of his

pants and thus could not have possessed the baggie.

{¶10} In response, the state argues that the officer’s drug-detecting canine

indicated that drugs were present outside of the rear passenger door, which is

where appellant was seated. Officer Mingus testified that when he was patting

down appellant he heard something smack the ground and saw a pink baggie

that was not there previously and it contained methamphetamine. Finally, the

state asserts that appellant admitted that he dropped the baggie that Mingus had

recovered.

Law and Analysis

{¶11} “ ‘When an appellate court considers a claim that a conviction is

against the manifest weight of the evidence, the court must dutifully examine the

entire record, weigh the evidence, and consider the credibility of witnesses.’ ”

State v. Griffith, 4th Dist. Pickaway No. 17CA4,

, quoting

State v. Topping, 4th Dist. Lawrence No. 11CA6,

. “ ‘The

reviewing court must bear in mind, however, that credibility generally is an issue

for the trier of fact to resolve.’ ”

quoting State v. Issa,

, Hocking App. Nos. 20CA2, 20CA3, and 20CA4 6

(2001). A “ ‘court may reverse the judgment of conviction only if

it appears that the fact-finder, when resolving the conflicts in evidence, clearly

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

must be reversed and a new trial ordered.’ ”

quoting

. “ ‘A

reviewing court should find a conviction against the manifest weight of the

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

against the conviction.’ ”

quoting

.

{¶12} Appellant was convicted of aggravated possession of drugs in

violation of R.C. 2925.11(A), which states: “No person shall knowingly obtain,

possess, or use a controlled substance or a controlled substance analog.”

Possession is defined as “having control over a thing or substances, but may not

be inferred solely from mere access to the thing or substance through ownership

or occupation of the premises upon which the thing is found.” R.C. 2925.01(K).

{¶13} The evidence shows that a drug-detecting canine indicated the

presence of drugs outside the right rear passenger door of the vehicle where

appellant was sitting. Further, based on Officer Mingus’ testimony, as well the

audio from his body and cruiser cameras, it is reasonable to infer that appellant

dropped the pink baggie that contained methamphetamine while being searched.

Finally, it appears that appellant admitted the baggie was his when he told

Haybron, “fell out of my jacket. I couldn’t get it stopped. * * * Did they find

yours?”

{¶14} Appellant alleges that he could not have possessed the baggie

because he had holes in his pockets. However, having holes in his pockets may Hocking App. Nos. 20CA2, 20CA3, and 20CA4 7

be the reason why the baggie dropped to the ground during the pat-down search.

Furthermore, the mere fact that appellant was “honest” regarding ownership of

drug paraphernalia is not necessarily indicative of whether he would be honest in

also admitting he possessed methamphetamine, which is a more serious

offense.

{¶15} Having examined the entire record, weighed the evidence, and

considered the credibility of witnesses, we conclude that this is not the

exceptional case in which the evidence weighs heavily against conviction.

Instead, we find a significant amount of evidence supports the jury’s conclusion

that appellant did possess the pink baggie of methamphetamine before it was

dropped onto the ground thereby supporting his conviction for aggravated

possession of drugs. Therefore, because appellant’s conviction is not against

the manifest weight of the evidence, we overrule his sole assignment of error.

2. Case No. 20CA4

BACKGROUND

{¶16} On August 26, 2019, the state charged appellant with five criminal

counts: (1) attempted rape in violation of R.C. 2923.02, 2907.02(A)(2) and (B), a

second-degree felony; (2) attempted sexual battery in violation R.C. 2923.02,

2907.03(A)(1) and (B), a fourth-degree felony; (3) attempted gross sexual

imposition in violation of R.C. 2923.02, 2907.05(A)(1) and (C)(1), a fifth-degree

felony; (4) kidnapping in violation of R.C. 2905.01(A)(2) and (C)(1), a first-degree

felony; and (5) abduction in violation of R.C. 2905.02(B) and (C), a third-degree

felony. The case went to trial and the state presented several witnesses. Hocking App. Nos. 20CA2, 20CA3, and 20CA4 8

{¶17} The state’s first witness was a sexual assault nurse who examined

the victim C.E. The nurse testified that C.E. told her she heard a noise in the

basement of her apartment complex and when C.E. investigated, she

encountered appellant who demanded she perform fellatio. The nurse further

testified that when C.E. refused, appellant slapped her in the face several times.

The nurse explained to the jury that C.E. said she managed to get out of her

basement and ring a neighbor’s doorbell, but while waiting for an answer,

appellant pinned her against the stairs and ejaculated on her head. The nurse

took samples from C.E., including her hair to check for DNA. The nurse

indicated that she did not see any physical injuries but she did notice red welts

on C.E.’s face, which she noted as hives. She further noted that the doctor who

examined C.E. issued a report that described her face as having “redness and

edema.” The nurse also stated that in her opinion C.E.’s “mental capabilities of

what was happening to her [while in the basement] were slowed down.”

{¶18} The state’s next witness was C.E. She testified that she heard a

noise in the basement of her apartment complex and she discovered her friend at

the time, S.B., and appellant. C.E. stated that after S.B. went to the bathroom,

appellant told her to “suck his dick” three times, and if she refused he would “hit”

her. She refused appellant’s demand, and S.B. returned from the bathroom and

stopped appellant from slapping C.E. C.E. went on to say that she “got away

from [appellant] and was starting to go up the steps, he followed me, pinned my

knees together where I couldn’t move and then he proceeded to ejaculate on me”

and also “touched my breast.” C.E. called 9-1-1 to report the assault, but when Hocking App. Nos. 20CA2, 20CA3, and 20CA4 9

police arrived she did not initially mention that the assault was sexual in nature

because she was embarrassed.

{¶19} On cross-examination, C.E. confirmed that after denying appellant’s

initial demand for fellatio, she walked over to the stairs and sat down. When

asked why she did not just continue up the stairs after appellant’s assault, C.E.

said she was “freaked out.” She further stated that it wasn’t until police informed

her appellant could potentially return to the apartment that she told officers his

assault was sexual in nature.

{¶20} Next to testify was Officer Stump, who responded to C.E.’s 9-1-1

call. Stump testified that the report C.E. filled out indicated appellant “hit” her.

However, he could not recall what word she used in describing how appellant

struck her in the face, but did describe her cheek as being red. Stump stated

that when he arrived it seemed unusual that C.E. was standing near appellant,

but he also said that it appeared she did not completely understand what was

going on at the time. When asked how C.E. “presented” to him, Stump testified

“she was a little unsure of herself. Kind of slow. I don’t know if she just wasn’t

processing what was going on very fast.”

{¶21} Next to testify was Officer Burchfield, who also responded to

appellant’s call. Burchfield testified that C.E. said appellant punched or hit her.

Burchfield admitted that he used the word “punched” in his report; however, he

also stated that he was not sure whether he heard C.E. actually use the word

“punch.” But he did testify that C.E. said her face hurt and she went to the

hospital. Hocking App. Nos. 20CA2, 20CA3, and 20CA4 10

{¶22} The state’s next witness was Timothy Augusback, a forensic

scientist for the Ohio Bureau of Criminal Investigation. Augusback testified that a

“head-hair-comb” sample taken from C.E. tested positive for appellant’s DNA.

{¶23} The jury convicted appellant of attempted rape, attempted sexual

battery, kidnapping, and abduction, but found appellant not guilty of attempted

gross sexual imposition. At sentencing, the trial court merged the attempted

sexual battery into attempted rape and abduction, and merged the abduction into

kidnapping. The court then sentenced appellant for both kidnapping and

attempted rape for an aggregate prison term of 19 to 28 ½ years.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT VIOLATED APPELLANT’S FIFTH AMENDMENT RIGHTS WHEN IT FAILED TO MERGE APPELLANT’S ATTEMPTED RAPE AND KIDNAPPING CONVICTIONS

II. THERE WAS INSUFFICIENT EVIDENCE PRESENTED AT TRIAL TO CONVICT APPELLANT OF KIDNAPPING

III. APPELLANT’S CONVICTIONS FOR ATTEMPTED RAPE, KIDNAPPING, AND ABDUCTION WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL

IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT EXCLUDED EVIDENCE TO IMPEACH THE ALLEGED VICTIM

V. THE TRIAL COURT ERRED AS A MATTER OF LAW, WHEREAS APPELLANT’S SENTENCE WAS CONTRARY TO LAW

ASSIGNMENT OF ERROR I

{¶24} Appellant argues that the trial court erred in not merging his

attempted rape and kidnapping convictions under R.C. 2941.25. Appellant Hocking App. Nos. 20CA2, 20CA3, and 20CA4 11

claims that when a kidnapping is committed during the commission of another

crime they are committed with the same animus if the restraint or movement of

the victim is merely incidental to the underlying offense. In this instance,

appellant asserts, because the kidnapping was committed during the attempted

rape, they are allied offenses of similar import and must merge, which means

that he can only be sentenced for one offense or the other, but not both.

{¶25} In response, the state claims that the kidnapping is a separate

incident from the attempted rape. Therefore, the state argues that the

kidnapping and attempted rape were committed with a separate animus and the

kidnapping in the stairs caused an increased chance of harm to C.E.

Accordingly, the state maintains that the trial court did not err in failing to merge

appellant’s attempted rape and kidnapping convictions.

Law and Analysis

{¶26} “R.C. 2941.25 ‘codifies the protections of the Double Jeopardy

Clause of the Fifth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution, which prohibits multiple punishments for the

same offense.’ ” State v. Osman, 4th Dist. Athens No. 13CA22,

, quoting State v. Underwood,

,

,

, ¶ 23. R.C. 2941.25 states:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed Hocking App. Nos. 20CA2, 20CA3, and 20CA4 12

separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

“By its enactment of R.C. 2941.25(A), the General Assembly has clearly

expressed its intention to prohibit multiple punishments for allied offenses of

similar import.” State v. Whitfield,

,

,

, ¶ 8, citing State v. Rance,

,

(1999),

paragraph three of the syllabus, overruled on other grounds,

,

. “By contrast, the General Assembly exercised its power to

permit multiple punishments by enacting R.C. 2941.25(B).” Id. at ¶ 9, citing State

v. Brown,

,

,

.

{¶27} “An appellate court should apply a de novo standard of review in

reviewing a trial court's R.C. 2941.25 merger determination.” State v. Williams,

,

,

. A de novo

standard of review means we “ ‘ “independently determine, without deference to

the conclusion of the trial court, whether the facts satisfy the applicable legal

standard.” ’ ” State v. Gillman,

,

, ¶ 13 (4th Dist.),

quoting State v. Williams,

,

,

, quoting State v. Burnside,

,

,

.

{¶28} The Ohio Supreme Court has set out a tripartite test to determine

when multiple criminal offenses must merge under R.C. 2941.25 in State v. Ruff,

,

,

. In making a merger

determination under Ruff “within the meaning of R.C. 2941.25, courts must Hocking App. Nos. 20CA2, 20CA3, and 20CA4 13

evaluate three separate factors - the conduct, the animus, and the import.”

at

paragraph one of the syllabus. The tripartite test is as follows:

Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of all the offenses [i.e. they do not merge] if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus. (Emphasis added.)

at paragraph three of the syllabus.

Ruff explains that “[t]wo or more offenses of dissimilar import exist within the

meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses

involving separate victims or if the harm that results from each offense is

separate and identifiable.” Id. at ¶ 23.

{¶29} In 1979, years before Ruff was decided, the Supreme Court

addressed the issue of merger of kidnapping and rape convictions in State v.

Logan,

,

(1979). The Court recognized that

“implicit within every forcible rape R.C. 2907.02(A)(1) is a kidnapping.”

. In determining whether the rape and kidnapping convictions should merge,

the court stated:

The primary issue * * * is whether the restraint or movement of the victim is merely incidental to a separate underlying crime or, instead, whether it has a significance independent of the other offense. In the instant case, the restraint and movement of the victim had no significance apart from facilitating the rape. The detention was brief, the movement was slight, and the victim was released immediately following the commission of the rape. In such circumstances, we cannot say that appellant had a separate animus to commit kidnapping.

. Hocking App. Nos. 20CA2, 20CA3, and 20CA4 14

The Court adopted the following guidelines for determining when a kidnapping

conviction and another similar offense are committed should merge:

(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;

(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.

at syllabus.

{¶30} “Ohio courts still apply the test found in [Logan] to determine

whether rape and kidnapping convictions merge for sentencing even though this

test predates Ruff.” State v. Thacker, 4th Dist. Lawrence No. 18CA21, 2020-

Ohio-4620, ¶ 125, appeal not accepted,

,

,

. Consequently, this Court adopted the “guidelines” set out in

Logan to determine when kidnapping and similar offenses - like rape - are

committed with the same animus and must merge.

quoting Logan at

syllabus. Therefore, kidnapping and rape convictions merge if the restraint of the

victim is merely incidental to the rape, but do not merge if the restraint subjected

the victim to a harm beyond that of the rape.

{¶31} The evidence indicates that while in the basement of the apartment

complex, appellant threatened he would hit C.E. if she did not perform fellatio,

and when she refused, he struck her several times. C.E., on her own volition, Hocking App. Nos. 20CA2, 20CA3, and 20CA4 15

then immediately proceeded to the stairs that lead out of the basement, and sat

down. However, appellant followed C.E., pinned her in the stairs, then

masturbated and ejaculated on her head. The evidence also shows that while

pinning her in the stairs, appellant again demanded she perform fellatio while

also threatening to hit her.

{¶32} We find that this evidence indicates that the appellant pinned C.E.

by force in the stairs thereby restraining her liberty, and demanded C.E. perform

fellatio by threat of force. We further find that the kidnapping involved only a

relatively brief restraint with no asportation, was committed to facilitate

appellant’s attempt to rape C.E., and did not subject C.E. to additional danger

aside from the rape. Therefore, under Logan, the offenses must merge.

{¶33} We reach the same result in applying the tripartite test from Ruff.

First, the kidnapping and attempted rape convictions involved a single victim and

the harm caused by the two offenses was not separate and identifiable, so the

offenses are not dissimilar. Second, both offenses were also committed at the

same time, not separately. Lastly, the kidnapping was committed merely to

facilitate the attempted rape, so the conduct did not show that these offenses

were committed with a separate animus. Therefore, under Ruff, the offenses

must merge.

{¶34} In conclusion, we find that under both Logan and Ruff, appellant’s

kidnapping and attempted rape convictions must merge, and the trial court erred

in failing to do so. For this reason, we sustain appellant’s first assignment of

error. Accordingly, we reverse the trial court's imposition of separate sentences Hocking App. Nos. 20CA2, 20CA3, and 20CA4 16

on these counts and remand this matter to the trial court to merge the attempted

rape and kidnapping convictions for purposes of sentencing.

ASSIGNMENT OF ERROR II

{¶35} Appellant alleges that there is insufficient evidence that the victim

was “restrained” to support his kidnapping conviction. Appellant argues that

there were two incidents of potential restraint. The first was when he slapped

C.E. after she refused to perform fellatio, and the second was when C.E. was on

the stairs. But he alleges that under both scenarios, C.E. was not restrained

because she testified that she was free to leave at any time. As a result,

appellant maintains that there is insufficient evidence to support his kidnapping

conviction.

{¶36} In response, the state claims that when appellant pinned C.E.’s

knees on the stairs that was evidence of restraint to support the kidnapping

conviction. Thus, the state argues that there is sufficient evidence of restraint to

support appellant’s kidnapping conviction.

Law and Analysis {¶37} “A claim of insufficient evidence * * * raises the question of whether

the evidence is legally sufficient to support the verdict as a matter of law.” State

v. Benge, 4th Dist. Adams No. 20CA1112,

, citing State v.

Blanton,

,

(4th Dist.); State v. Thompkins,

,

(1997). The standard of review of a

sufficiency of the evidence claim is “after viewing the probative evidence and

inferences reasonably drawn therefrom in the light most favorable to the

prosecution, any rational trier of fact could have found all the essential elements Hocking App. Nos. 20CA2, 20CA3, and 20CA4 17

of the offense beyond a reasonable doubt.”

citing Jackson v. Virginia,

,

,

(1979); State v. Jenks,

,

(1991). “A reviewing court will not overturn a

conviction on a sufficiency-of-the-evidence claim unless reasonable minds could

not reach the conclusion that the trier of fact did.” Id. at ¶ 26, citing State v.

Tibbetts,

,

(2001).

{¶38} Appellant was convicted of kidnapping under R.C. 2905.01(A)(2),

which in pertinent part requires proof that “by force, threat, or deception,” the

offender did “restrain the liberty of [the victim] * * * [t]o facilitate the commission of

any felony or flight thereafter.” (Emphasis added). The Ohio Revised Code does

not define “restraint,” but the Tenth District Court of Appeals has stated that

“[r]estraining an individual's liberty means limiting or restraining their freedom of

movement.” State v. Williams,

,

(10th Dist.)

{¶39} The evidence indicates that appellant used force by pinning C.E.’s

knees together on the stairs, which restrained her liberty for the purpose of

committing attempted rape, which is a felony. In viewing this evidence in a light

most favorable to the prosecution, we find that any rational trier of fact could

have found appellant guilty of kidnapping. Therefore, we overrule appellant’s

second assignment of error.

ASSIGNMENT OF ERROR III

{¶40} Appellant’s third assignment of error alleges that his kidnapping,

attempted rape, and abduction convictions are against the manifest weight of the

evidence. Specifically, appellant argues that there is insufficient evidence that he Hocking App. Nos. 20CA2, 20CA3, and 20CA4 18

used “force” to support his kidnapping or abduction convictions, or used “force” or

“threat of force” to support his attempted rape conviction. It appears that

appellant claims that a slap is insufficient to constitute force for purposes of these

offenses. He maintains that slapping C.E. did not restrain her liberty and she

testified that she was free to leave. Appellant also asserts that there was

insufficient evidence to prove that he restrained C.E. for purposes of his

kidnapping or abduction convictions.

{¶41} In response, the state argues that while there is conflicting testimony

as to how the force was applied (punch, hit, slap), the testimony was sufficient for

the jury to conclude that appellant used force in committing the attempted rape,

kidnapping, and abduction. The state also asserts that appellant’s act of pinning

C.E. in the stairs restrained her liberty for purposes of abduction and kidnapping.

Therefore, the state argues that these convictions are not against the manifest

weight of the evidence.

Law and Analysis

{¶42} Because we set forth the manifest weight of the evidence standard

of review earlier in this decision, we will not repeat the standard or accompanying

citations here. Appellant challenges the manifest weight of evidence regarding

his kidnapping, abduction, and attempted rape convictions. We first note that the

trial court merged abduction with the kidnapping conviction. Therefore, if

sufficient evidence supports appellant’s kidnapping conviction and if the

conviction is not against the manifest weight of the evidence, then an erroneous

abduction finding of guilty by the jury would be harmless. See State v. Hocking App. Nos. 20CA2, 20CA3, and 20CA4 19

Wickersham, 4th Dist. Meigs No. 13CA10,

, ¶ 21, citing State v.

Powell,

,

(1990). As such, we will review

appellant’s evidentiary challenge to abduction only if we find that appellant’s

kidnapping conviction is against the manifest weight of the evidence.

{¶43} The offense of kidnapping required the state to prove the appellant

used “force” “by any means” to “restrain the liberty of the [victim]” for the purpose

of committing a felony. R.C. 2905.01(A)(2). The offense of attempted rape

requires the state to prove that the offender attempted to “engage in sexual

conduct with another when the offender purposely compels the other person to

submit by force or threat of force.” R.C. 2903.02 and R.C. 2907.02(A)(2). R.C.

2901.01(A)(1) defines “force” as “any violence, compulsion, or constraint

physically exerted by any means upon or against a person or thing.”

{¶44} C.E. testified that shortly after appellant initially demanded she

perform fellatio and struck her for refusing to comply, he “pinned” her legs in the

stairs, and again demanded she perform fellatio. We find that the jury could have

reasonably construed this evidence as indicating that appellant used “force” by

physically constraining C.E.’s liberty for purposes of finding appellant guilty of

kidnapping. We further find the jury could have reasonably found appellant’s

threat to slap, and then actually slapping C.E., was “force” because it was

“violence” that he used in an attempt to compel her to perform fellatio, which is

attempted rape.

{¶45} Nevertheless, appellant cites State v. Pierce, 3rd Dist. Seneca No.

13-87-27,

(Aug. 3, 1989) apparently for the proposition that a Hocking App. Nos. 20CA2, 20CA3, and 20CA4 20

slap is insufficient to constitute force for purposes of his convictions. [Appellant’s

brief p. 19] In Pierce, the court of appeals affirmed an adult offender’s rape

conviction of a 13-year old child, reasoning that the appellant’s threat to slap the

child was sufficient to constitute force. (Emphasis added.) Id. at *2. And, the

court in Pierce further stated that “[a] slap in the face is, in any event, ‘violence,

compulsion, or constraint physically exerted by any means * * * against a

person.’ ” Id. at *2. Pierce simply does not support appellant’s argument that a

slap is insufficient to constitute a use of force for purposes of R.C. 2901.01(A)(1).

{¶46} Because we find that the jury did not lose its way in finding

appellant guilty of kidnapping and attempted rape so as to create a manifest

injustice requiring a reversal of his convictions, we hold that appellant’s

convictions are not against the manifest weight of the evidence. Accordingly, we

overrule appellant’s third assignment of error.

ASSIGNMENT OF ERROR IV

{¶47} In his fourth assignment of error, appellant argues that the trial court

violated his due process rights when it precluded admission of Officer

Burchfield’s police report. Appellant claims that the trial court abused its

discretion in refusing to admit Officer Burchfield’s police report to impeach C.E.’s

testimony under Evid.R. 613(B). Appellant asserts that Burchfield’s police report,

which indicated that appellant “punched” C.E., would have impeached C.E.’s

testimony that appellant “slapped” her.

{¶48} The state argues that the report does not impeach C.E.’s testimony

because the report did not include a direct statement from C.E. The report was a Hocking App. Nos. 20CA2, 20CA3, and 20CA4 21

recitation of what Burchfield recalled C.E. saying. Burchfield testified about his

report and nowhere in his testimony does he claim C.E. used the word “punch.”

Therefore, the state contends that the trial court did not abuse its discretion in

denying appellant from using the report to impeach C.E.

Law and Analysis

{¶49} “A trial court has broad discretion in the admission or exclusion of

evidence, and so long as such discretion is exercised in line with the rules of

procedure and evidence, its judgment will not be reversed absent a clear

showing of an abuse of discretion with attendant material prejudice to defendant.”

State v. Ward, 4th Dist. Gallia No. 3CA2,

, citing Rigby v.

Lake Cty.,

,

(1991). “[T]rial witnesses

may be impeached pursuant to Evid.R. 613(B) through the use of their own prior

inconsistent statements.” (Emphasis added.) State v. Byrd, 4th Dist. Scioto No.

96CA2427,

, *2 (Jan. 6, 1998), citing State v. Hill,

,

(1996).

{¶50} Officer Burchfield’s police report does state that appellant “punched”

C.E. And C.E. testified that she told officers that appellant “hit” her with “his

palm,” but did not “punch” her. She further testified that to the extent an officer

indicated that appellant “punched” her, he was wrong. However, Officer

Burchfield could not verify that his use of the word “punched” in his report was

directly attributable to C.E. Consequently, it does not appear that the report

contains a prior statement from C.E. that conflicted with her trial testimony.

Therefore, we find that the trial court’s exclusion of the police report from being Hocking App. Nos. 20CA2, 20CA3, and 20CA4 22

used to impeach C.E.’s testimony was not unreasonable, arbitrary, or

unconscionable. Accordingly, because we find that the trial court did not abuse

its discretion in precluding admission of the police report, we overrule appellant’s

fourth assignment of error.

ASSIGNMENT OF ERROR V

{¶51} Finally, appellant argues that his aggregate sentence of a 20-year

minimum and 28 ½ years maximum in prison, received in case nos. 20CA3, and

20CA4, violates R.C. 2929.144 (The Reagan Tokes Law). The state agrees that

appellant’s sentencing does not conform with the requirements of R.C. 2929.144.

However, appellant admits that if we find that his kidnapping and attempted rape

convictions merge, as we have held, this assignment of error becomes moot

because the trial court will need to resentence him. Therefore, we decline to

address appellant’s fifth assignment of error as it has become moot.

CONCLUSION

{¶52} In case no. 20CA2, we overrule appellant’s sole assignment of

error. In case no. 20CA4, we sustain appellant’s first assignment of error,

reversing his sentences for kidnapping and attempted rape, and remand the

matter for the trial court to merge those convictions and re-sentence appellant

accordingly. On remand, the state will have the option of deciding whether the

trial court sentences appellant for kidnapping or attempted rape. Additionally, we

overrule appellant’s second, third, and fourth assignments of error in case no.

20CA4, and we decline to address his fifth assignment of error, which is moot. Hocking App. Nos. 20CA2, 20CA3, and 20CA4 23

JUDGMENTS AFFIRMED IN PART AND REVERSED IN PART AND CAUSE

REMANDED FOR MERGER AND RESENTENCING. Hocking App. Nos. 20CA2, 20CA3, and 20CA4 24

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED IN PART AND REVERSED IN PART AND CAUSE REMANDED FOR MERGER AND RESENTENCING and costs be split equally between the parties.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ______________________________ Kristy S. WIlkin, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.