[Cite as State v. Travis, 

.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                       TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                   :        OPINION

                   Plaintiff-Appellee,            :
                                                           CASE NOS. 2018-T-0101
          - vs -                                  :                  2018-T-0102

 HAROLD TRAVIS, JR.,                              :

                   Defendant-Appellant.           :


 Criminal Appeals from the Trumbull County Court of Common Pleas, Case Nos. 2015
 CR 00161 and 2016 CR 00580.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
 Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
 44481 (For Plaintiff-Appellee).

 David Cripps and Phillip Comorski, 1300 Broadway Street, Suite 800, Detroit, MI 48226;
 and Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For
 Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}       Appellant, Harold Travis, Jr., appeals from the November 9, 2018 Entry on

Sentence of the Trumbull County Court of Common Pleas sentencing him to a total term

of 36 years imprisonment. For the reasons that follow, we affirm.

        {¶2}       The initial underlying case originated as Case No. 2015 CRA 00405, in

which appellant was indicted on five counts: (1) Felonious Assault, a felony of the second
degree, in violation of R.C. 2903.11(A)(1)&(D)(1)(a); (2) Kidnapping, a felony of the first

degree, in violation of R.C. 2905.01(A)(1)&(C)(1); (3) Kidnapping, a felony of the first

degree, in violation of R.C. 2905.01(A)(3)&(C)(1); (4) Extortion, a felony of the third

degree, in violation of R.C. 2905.11(A)(4)&(B); and (5) Having Weapons While Under

Disability, a felony of the third degree, in violation of R.C. 2923.13(A)(3)&(B). These

events were alleged to have occurred in February 2015 on Elm Road in Warren, Ohio

against appellant’s wife, Shateara Frank Travis. Appellant pleaded not guilty.

      {¶3}    While the first case was pending, appellant was charged, in Case No. 2016-

CR-580, with three new counts: (1) Felonious Assault, a felony of the second degree, in

violation of R.C. 2903.11(A)(1)&(D)(1)(a); (2) Kidnapping, a felony of the first degree, in

violation of R.C. 2905.01(A)(3)&(C)(1); and (3) Abduction, a felony of the third degree, in

violation of R.C. 2905.02(A)(2)&(C). These events were alleged to have occurred in

February 2016 on Douglas Street in Warren, Ohio against Jeremy McMahan and

Shannon Johnson. Appellant pleaded not guilty. Appellant’s counsel stipulated to the

consolidation of the cases for trial and the court journalized the stipulation and

consolidated the cases. The counts were ultimately renumbered as one continuous list

of charges.

      {¶4}    The case proceeded to trial, where the jury ultimately found appellant guilty

of Count 1, Felonious Assault of Shateara Frank Travis; Count 3, Kidnapping of Shateara

Frank Travis; Count 5, Having Weapons While Under Disability; Count 6, Felonious

Assault of Jeremy McMahan; Count 7, Kidnapping of Jeremy McMahan; and Count 8,

Abduction of Shannon Johnson.




                                            2
          {¶5}   The court sentenced appellant to seven years for the Felonious Assault of

Shateara and 10 years for the Kidnapping of Shateara, to be served consecutively for a

term of 17 years. Additionally, the court sentenced appellant to seven years for the

Felonious Assault of Jeremy and 10 years for the Kidnapping of Jeremy, to be served

consecutively to each other for a term of 17 years. For the Abduction of Shannon, the

court sentenced appellant to a 24-month term. And for Having Weapons Under Disability,

the court sentenced appellant to a 24-month term. The two terms of 17 years and the 24-

month sentence on the Abduction count are to run consecutively, while the 24-month term

for Having Weapons Under Disability is to run concurrently.          In all, appellant was

sentenced to a total term of imprisonment of 36 years.

          {¶6}   Appellant filed two notices of appeal, assigned Case Nos. 2018-TR-101 and

2018-TR-102, which this court sua sponte consolidated. He assigns five errors for our

review. Appellant’s first assignment of error states:

          {¶7}   The evidence was insufficient to support the convictions against
                 appellant with respect to the kidnapping, felonious assault, having
                 weapons while under disability, and abduction charges.

          {¶8}   “A ‘sufficiency’ argument raises a question of law as to whether the

prosecution offered some evidence concerning each element of the charged offense.”

State v. Swiggett, 11th Dist. Trumbull No. 2017-T-0003, 

, citing State

v. Windle, 11th Dist. Lake No. 2010-L-0033, 

, ¶25. “‘[T]he proper inquiry

is, after viewing the evidence most favorably to the prosecution, whether the jury could

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

 quoting State v. Troisi, 

, 

, ¶9 (11th

Dist.).




                                              3
       {¶9}    The testimony and evidence presented at trial shows the following facts

related to Counts 1 through 5. Nyiesha Frank, the mother of Shateara, testified that

appellant and Shateara are married and have one child together, but that their marriage

was “rocky,” and they had been living apart for some time. Appellant confirmed he and

Shateara were not living together at the time of the incidents in question.       Around

February 14, 2015, Nyiesha was uncharacteristically unable to get in contact with

Shateara. Around the same time, she testified that appellant contacted her stating his

“bag” was missing and threatened to cut off Shateara’s fingers unless Nyiesha produced

$5,000. The police were contacted on February 23, 2015, and officers were dispatched

to conduct a welfare check at appellant’s house on Elm Road. No one answered and the

police left.

       {¶10} On February 24, 2015, Shateara knocked on the door of Keri Bellay, who

let her inside. Ms. Bellay testified that Shateara was crying, panicky, breathing heavily,

badly bruised, carrying her infant child, and that neither were properly dressed for the

weather. Ms. Bellay called 9-1-1 and handed the phone to Shateara. Ms. Bellay testified

that she heard Shateara talk with the 9-1-1 operator; the 9-1-1 call was entered into

evidence. Shateara told the operator she was held against her will at her husband’s

house for approximately two weeks, that he had beaten her up, and that she was able to

escape when he left to go to court. The operator asked her why she did not yell out when

police conducted the welfare check the day prior, and she stated he threatened her to

stay quiet with a gun.

       {¶11} The police arrived at Ms. Bellay’s residence. Responding officers testified

that Shateara was manic and hectic, crying, and had multiple injuries. She provided a




                                            4
statement, in which she reiterated that she was held against her will at her husband’s

house, that he beat her up, and threatened her and her family with a gun. Shateara was

taken away in an ambulance.

       {¶12} On February 25, 2015, an arrest warrant was executed at appellant’s

residence on Elm Road. Appellant was found hiding alone in the upstairs attic and was

arrested. The following day, Warren Police executed a search warrant at appellant’s

residence and found loose and boxed ammunition for handguns and rifles. They also

found a loaded, operable shotgun in the attic where appellant was found. Officers also

collected a video surveillance system and portable hard drive of the videos. However,

the cameras were not synched, did not display accurate dates and times, did not record

non-stop, and had various blocks of time missing.

       {¶13} Detective Mackey conducted a follow-up interview with Shateara on

February 26, 2015, at which time she showed him a conversation between her and

appellant on Facebook, in which they discuss their child and the incident in question.

Appellant confirmed that was his Facebook account but asserted that other people had

his password. The messages appear to show appellant responding to Shateara, “I know

I f ***ed up and I know how and I don’t know how to make it right,” and “trust me, I know

what I did and why you feel the [sic] way.” When Shateara told appellant she had a

cracked rib and concussion, and appellant responded, “I swear it was out of anger and

hurt * * * yeah I did all that.”

       {¶14} Shateara was declared an unavailable witness and her preliminary hearing

testimony was read to the jury. At the preliminary hearing, she testified that in February

2015 when she went to drop off an individual at appellant’s residence, he approached her




                                            5
with a gun and forced her into the home. She testified that he accused her of stealing

money from him, beat her, threatened her and her family, and held her against her will for

about two weeks, until she was able to get away.

       {¶15} The testimony and evidence presented at trial shows the following facts

related to Count 6 through 8. Jeremy McMahan and Shannon Johnson both testified at

trial that they were in a relationship in early 2016, and that they were both heroin addicts.

Their heroin dealer was appellant’s father, Harold Travis, Sr., with whom they resided in

exchange for running drugs and errands, and taking care of Harold Travis, Sr., who had

limited mobility and other health conditions. It was there that they met appellant. Jeremy

and Shannon also visited appellant’s home; Jeremy would sometime help by cleaning up

after appellant’s dogs.

       {¶16} At one point, a necklace disappeared from appellant’s house. Shannon and

Jeremy testified that appellant accused them of stealing it and assaulted Jeremy. When

the necklace was found behind a dresser a few days later, appellant apologized and gave

them crack and heroin. Later, in July 2016, appellant again accused them of stealing;

this time, some of appellant’s father’s prescription pills were missing. Appellant, and

others at appellant’s father’s house, again assaulted Jeremy. Jeremy was able to flee

the residence and called the police. He reported that Shannon was being held against

her will at appellant’s father’s house on Douglas Street. The police arrived removed

Shannon, who told them she was afraid of being beaten or killed. Shannon and Jeremy

obtained a voucher for a motel but left later that evening to go get food. While driving

around town, they encountered appellant and others with him in a white car and were

shown a gun and ordered back to appellant’s father’s house. Shannon, who was driving,




                                             6
unsuccessfully attempted to evade them. Once at the residence, Jeremy tried to walk

away but was forced into the house.

       {¶17} Jeremy and Shannon testified that once inside, appellant, his father, and

the other individuals began to beat, choke, and prod Jeremy with a screwdriver. Shannon

was made to punch Jeremy in the face. In the evening, Jeremy was able to jump through

a window and ran to his aunt’s house, where he called the police. Around midnight,

Warren Police again went to appellant’s father’s house. They found Shannon in the

house, who, upon being assured the officers could ensure her safety, stated she was held

against her will. She provided a statement, in which she also confirmed they were forced

into the home, and that appellant and others assaulted Jeremy.

       {¶18} Appellant took the stand and testified that he was not at his father’s house

at all on the day in question. However, appellant was under house arrest during the time,

and wore an ankle bracelet which sent a radio signal with his location so long as he was

within 150 feet of the receiver located at his residence on Elm Road. During July 12 to

July 14, 2016, on the dates and around the times Jeremy and Shannon said they

encountered appellant, several instances were logged where appellant left his residence

without authorization.

       {¶19} Additionally, while appellant was in jail, he began talking to a fellow inmate,

Joel White.    After pleading guilty to unrelated charges, Mr. White contacted the

prosecutor’s office in July 2018 to provide information he had regarding appellant’s

pending cases. He stated he received no deals, representations, or promises of leniency

in his criminal case in exchange for his cooperation in this matter. Mr. White testified that

appellant mentioned he was getting victims to change their statements and lie in order to




                                             7
“beat” his case, and that appellant had Shateara write letters contradicting her original

statements. He also testified that appellant admitted to holding Shateara at his house for

a couple of weeks, that he “dogged” her a little, which Mr. White understood to mean

assaulted her, and that she was leaving the state to avoid being subpoenaed. Mr. White

also testified that appellant told him he was charged with “a gun specification” because

they found his gun in the attic. Additionally, Mr. White testified that appellant told him he

beat Jeremy for stealing prescription pulls and kept him hostage on at least two

occasions, but that he had escaped, and that appellant had someone give Jeremy drugs

to overdose on.

       {¶20} On appeal, appellant argues that while there was some evidence presented

to support his convictions, “the evidence as a whole was constitutionally insufficient to

prove the essential elements.”

       {¶21} In addressing his sufficiency argument, we take each of appellant’s

convictions in turn. First, appellant was convicted of Having Weapons While Under

Disability, in violation of R.C. 2923.13, which states:

       {¶22} (A) Unless relieved from disability under operation of law or legal
             process, no person shall knowingly acquire, have, carry, or use any
             firearm or dangerous ordnance, if any of the following apply:

       {¶23} * * *

       {¶24} (3) The person is under indictment for or has been convicted of any
             felony offense involving the illegal possession, use, sale,
             administration, distribution, or trafficking in any drug of abuse or has
             been adjudicated a delinquent child for the commission of an offense
             that, if committed by an adult, would have been a felony offense
             involving the illegal possession, use, sale, administration,
             distribution, or trafficking in any drug of abuse.

       {¶25} Appellant does not dispute the evidence concerning the underlying

elements of this conviction but only disputes the issue of his identity as to the conviction.


                                              8
He argues a rational trier of fact could not have found that appellant was the person who

put the gun in the attic, because he asserts that he was not the last person to be seen

where the gun was found and that the state presented no evidence that appellant was

anywhere near the area where the gun was found.

         {¶26} However, the arresting officers testified that appellant was found hiding,

alone, in the attic of his own residence. Contrary to appellant’s assertion that he was not

anywhere near the shotgun, the next day officers found the shotgun within four to five feet

of the opening of the attic; it was not hidden or covered and had no dust or dirt on it.

Moreover, his fellow inmate testified that appellant admitted to him that police had found

his gun. Viewing the evidence most favorably to the prosecution, the jury could have

found that it was appellant who as in possession of the shotgun beyond a reasonable

doubt.

         {¶27} Appellant was also convicted of Kidnapping and Felonious Assault against

Shateara and Jeremy, in violation of R.C. 2905.01(A)(3) and R.C. 2903.11(A)(11),

respectively.

         {¶28} R.C. 2905.01(A) states:

         {¶29} (A) No person, by force, threat, or deception, or, in the case of a
               victim under the age of thirteen or mentally incompetent, by any
               means, shall remove another from the place where the other person
               is found or restrain the liberty of the other person, for any of the
               following purposes:

         {¶30} * * *

         {¶31} (3) To terrorize, or to inflict serious physical harm on the victim or
               another * * *.

         {¶32} R.C. 2903.11(A) states “[n]o person shall knowingly * * * [c]ause serious

physical harm to another * * *.



                                              9
       {¶33} In regard to Shateara, appellant argues that the state did not present any

evidence of a purpose to terrorize or inflict serious physical harm, and that there was no

evidence of physical harm to Shateara by appellant, since Shateara did not testify at trial

and Nyiesha’s testimony was hearsay. However, the State presented the testimony of

Shateara from the preliminary hearing, in which she identified appellant as her husband

and the person who held her against her will and assaulted her. The State also presented

the Facebook conversation between Shateara and appellant in which appellant appears

to admit he caused Shateara’s broken rib and concussion. Additionally, the State offered

the medical records from Shateara’s hospital visit, which states: “[patient] states held in

house and beatten [sic] by husband for past 2 wks * * * states was hit and kicked by

husband several times past 2 wks.” Pictures of Shateara’s injuries were also submitted.

From this, the jury could reasonably conclude it was appellant’s intent to terrorize or inflict

serious physical harm on Shateara, and that he did, in fact, do so. Thus, the State

presented sufficient evidence of each of the essential elements of Kidnapping and

Felonious Assault against Shateara.

       {¶34} In regard to Kidnapping Jeremy, appellant argues the state did not show

evidence of a purpose to terrorize or to inflict serious physical harm to Jeremy or restrain

him from leaving. And in regard to the Felonious Assault of Jeremy, appellant seems to

argue that he could not have “knowingly caused” his injuries because they resulted from

the actions of other individuals. However, Jeremy testified that appellant was the one

who ordered him and Shannon to return to his father’s house by showing them a gun. He

stated that once at appellant’s father’s house, he attempted to walk away but that

appellant and the others with him surrounded him and made him go into the house. The




                                              10
prosecutor asked him if he went into the house of his own freewill and he responded “not

really * * * I didn’t want to.” Furthermore, he testified that as soon as he entered the

house, appellant and others began to assault him.             Shannon also testified that

immediately after being forced in the house, appellant and others began to assault

Jeremy. Shannon and Jeremy both testified that they tried to get away from appellant

and his father’s house because they feared being beaten or killed after being accused of

stealing from appellant and his father.      Furthermore, the State entered pictures of

Jeremy’s injuries and the medical records from his related hospital visit. The jury could

reasonably conclude from this evidence that appellant’s intent was to return Jeremy to

his father’s house in order to terrorize or inflict serious physical harm to him, and that he

did, in fact, cause such harm. Thus, there was sufficient evidence of each of the essential

elements of Kidnapping and Felonious Assault against Jeremy.

       {¶35} Finally, appellant was convicted of the Abduction of Shannon in violation of

R.C. 2905.02(A)(2), which states: “[n]o person, without privilege to do so, shall knowingly

* * * (2) [b]y force or threat, remove another from the place where the other person is

found.” Appellant argues that the state did not present any evidence of force or threat,

but that the testimony only alleges appellant and others showed them a gun and asked

them to follow them back to the residence. However, Jeremy testified:

       {¶36} [Jeremy:] I was forced to go back to Douglas Street.

       {¶37} [Prosecutor:] How were you forced to go back to Douglas Street?

       {¶38} [Jeremy:] They kept going up next to us, showing us guns, and telling
             us to go to his dad’s house.




                                             11
       {¶39} Similarly, Shannon testified that appellant was the one holding the gun and

told them to go back to the house on Douglas Street. She testified that she tried to outrun

them and get away by going down side roads.

       {¶40} [Shannon:] They pulled up behind me and I knew that we weren’t
             going to get away. And at that point in time, I—I don’t know why I
             didn’t think of it to call the cops or instead drive to the police station
             like I should have but I followed them.

       {¶41} Shannon also testified that once they arrived at the house:

       {¶42} [Shannon:] Me and Jeremy reluctantly got out of the car. * * * Harold
             Travis, Jr., and the other two guys got out of the car and came up
             front to where we were parked and made sure that we walked inside
             of the house through the side door.

       {¶43} * * *

       {¶44} [Prosecutor:] And you did not go back to the house – you did not go
             into the house voluntarily?

       {¶45} [Shannon:] No.

       {¶46} By showing a gun and telling them to return to the house, and by not

allowing Shannon to evade them, a rational jury could find that appellant forced or

threatened Shannon to return to appellant’s father’s house. Thus, the State presented

sufficient evidence of each of the essential elements of the Abduction of Shannon.

       {¶47} In light of the foregoing, appellant’s first assignment of error is without merit.

       {¶48} Appellant’s second assignment of error states:

       {¶49} Appellant’s convictions are against the manifest weight of the
             evidence.

       {¶50} A court reviewing the manifest weight observes the entire record, weighs

the evidence and all reasonable inferences, considers the credibility of the witnesses and

determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its

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


                                             12
reversed and a new trial ordered. State v. Thompkins, 

 (1997).

The role of the reviewing court is to engage in a limited weighing of the evidence in

determining whether the state properly carried its burden of persuasion. 

. If the

evidence is susceptible to more than one interpretation, an appellate court must interpret

it in a manner consistent with the verdict. State v. Banks, 11th Dist. Ashtabula No. 2003-

A-0118, 

. “‘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.’”   

 quoting State v. Martin, 

(1st.Dist. 1983).

       {¶51} Appellant argues that the inconsistencies are so numerous that they are

impossible to list and that the only evidence linking appellant to the crimes charged was

testimony from Shannon and Jeremy, who he purports are not trustworthy, and Joel

White, whose motives are suspect.

       {¶52} However, as discussed under the first assignment of error, the State

presented, contrary to appellant’s assertion, evidence of each element of the crime for

which appellant was convicted. And after a thorough review of all the evidence, we find

appellant’s conviction was not against the manifest weight of the evidence.

       {¶53} The various inconsistencies that appellant complains of are largely based

on the differing testimony of appellant versus the other witnesses. However, it is well

established that “the weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. DeHass, 

 (1967),

paragraph one of the syllabus. Moreover, many inconsistencies were countered by other

evidence or testimony. For example, appellant asserted he was not at his father’s house




                                            13
on the day which Jeremy was assaulted. However, his house arrest ankle monitor

showed he was not at home without authorization. Additionally, the jury heard a phone

conversation between Jeremy and appellant, after appellant had been arrested, in which

Jeremy states the police got his testimony wrong and that he didn’t say anything against

appellant. At trial, however, Jeremy testified that he was lying to appellant on the phone

“because [his] life is important to [him].”

       {¶54} As for the untrustworthiness of Shannon, Jeremy, and Joel, we reiterate that

is a matter for the jury to decide. And in light of the evidence, it was not unreasonable for

the jury to believe these witnesses. First, the only criticism appellant makes in support of

Shannon and Jeremy’s untrustworthiness was that they were drug addicts. However, the

use of drugs does not automatically equate to untrustworthiness. Second, the prosecutor

and defense counsel thoroughly examined and cross-examined Joel to ascertain his

motives. He had signed a plea agreement before contacting the prosecutor about this

case. Furthermore, he testified that he was never told by anyone to talk to appellant

about his case. He stated that he testified without any promises of leniency in his own

case; only that the prosecutor at his own sentencing would say that he cooperated and

testified in this case. Instead, Joel testified he began to resent appellant’s actions

because his brother had recently died of an overdose. Finally, although Joel was in jail

on drug related charges, he noted that his drug related activities happened before his

brother died and that the drugs were Suboxone, which is intended to help the user get off

heroin.

       {¶55} Finally, appellant argues that Nyiesha’s testimony that appellant was the

one who caused Shateara’s injuries was hearsay because Shateara did not testify at trial.




                                              14
Contrary to his assertion, however, this was not the only evidence of Shateara’s assailant

entered into evidence. Any error in this regard is harmless as the state properly entered

into evidence Shateara’s preliminary hearing testimony, in which she identified appellant

as her assailant, and her medical records, in which she states that her husband was her

assailant.

       {¶56} In light of the foregoing, we cannot say that the jury clearly lost its way in

finding appellant guilty; the evidence does not weigh heavily against the convictions.

Appellant’s second assignment of error is without merit.

       {¶57} Appellant’s third assignment of error states:

       {¶58} The trial court erred by denying appellant’s motion for severance of
             the indictments.

       {¶59} At pre-trial in February 2017, the state, appellant, and appellant’s counsel

discussed consolidation of the two criminal cases for the purposes of trial. Appellant’s

counsel withdrew and new counsel filed a notice of appearance. New counsel and the

state again discussed consolidation of the two criminal cases. On June 12, 2017,

appellant’s new counsel stipulated to the consolidation, which the court journalized, and

the cases were consolidated. Counsel then withdrew, and ultimately new counsel was

appointed.

       {¶60} In July 2018, appellant filed a Motion for Severance of the two consolidated

criminal cases. The state responded noting that discussions regarding consolidation had

been occurring with prior counsel since February 2017, over a year earlier. The court

denied appellant’s motion.

       {¶61} Crim.R. 8(A) states that:

       {¶62} [t]wo or more offenses may be charged in the same indictment,
             information or complaint in a separate count for each offense if the


                                            15
              offenses charged, whether felonies or misdemeanors or both, are of
              the same or similar character, or are based on the same act or
              transaction, or are based on two or more acts or transactions
              connected together or constituting parts of a common scheme or
              plan, or are part of a course of criminal conduct.

       {¶63} Crim.R. 13 allows a court to try two or more indictments together if the

offenses could have been joined in a single indictment. Crim.R. 14, however, requires

separate trials if it appears that a defendant or the state would be prejudiced by such

joinder.

       {¶64} A defendant bears “the burden of showing the trial court’s refusal to allow

separate trials of multiple charges under Crim.R. 14 has the burden of affirmatively

showing that his rights were prejudiced; he must furnish the trial court with sufficient

information so that it can weigh the considerations favoring joinder against the

defendant’s right to a fair trial, and he must demonstrate that the court abused its

discretion in refusing to separate the charges for trial.” State v. Torres, 

, syllabus, (1981).

       {¶65} An appellate court reviews a denial of a motion to sever under an abuse of

discretion standard. State v. Stoutamire, 11th Dist. Trumbull No. 2007-T-0089, 2008-

Ohio-2916, ¶52. The phrase “abuse of discretion” is one of art, connoting judgment

exercised by a court which neither comports with reason, nor the record. State v.

Ferranto, 

, 676–678 (1925). “An abuse of discretion may be found when

the trial court ‘applies the wrong legal standard, misapplies the correct legal standard, or

relies on clearly erroneous findings of fact.’” State v. Figueroa, 11th Dist. Ashtabula No.

2016-A-0034, 

, quoting Thomas v. Cleveland, 

,

 (8th Dist.).




                                            16
       {¶66} “‘A prosecutor can use two methods to negate such [defense] claims of

prejudice.’ First, if one offense could have been introduced under Evid.R. 404(B) at the

trial of the other offense, no prejudice could have resulted from joinder. Evid.R. 404(B)

recognizes that evidence of other crimes may ‘be admissible for * * * proof of motive,

opportunity, intent, preparation, plan.’ Second, the state can refute prejudice by showing

‘that evidence of each of the crimes joined at trial is simple and direct.’” State v. Brinkley,

, 

, ¶30, quoting State v. Lott, 

(1990), and State v. Franklin, 

 (1991).

       {¶67} Appellant argues for the first time on appeal that the charges of kidnapping,

abduction and assault were improperly included with gun possession charges. In his

motion for relief from prejudicial joinder, made July 18, 2018, appellant argues that the

cases should be separated because the events happened over a year apart, the motives

appeared to be different, and there were no common victims. He argues the jury would

be prejudiced because they would be unable to segregate the evidence. However, no

argument was made as to gun possession charges being erroneously joined with

kidnapping, abduction, and felonious assault charges.           Appellant cannot raise this

argument for the first time on appeal; accordingly, we review only for plain error. See

State v. Goodner, 

, 

 (2d Dist.). “[P]lain error

does not exist unless, but for the error, the outcome of the proceedings would have been

different.”   State v. Long, 

 (1978), paragraph two of the syllabus.

Because the evidence of each charge was strongly supported by the evidence and the

evidence presented was simple and direct, as discussed under the second assignment




                                              17
of error and further below, we are not persuaded the outcome would have been different,

and thus we find no plain error.

       {¶68} Appellant also contends that joinder was improper because the criminal

offenses were not of the same or similar character. He notes that the crimes were

committed more than a year apart, involved different victims, and occurred at different

locations and that “the joinder served only to inflame the jurors’ passions.” He further

asserts joinder effectively denied him the right to a fair and impartial trial because the

evidence on each count would not have been admissible under Evid.R. 404(B) to the

other counts, if the offenses were tried separately. The State, however, does not argue

that as a basis for consolidating the cases. Instead, the state argues that the evidence

of each of the crimes joined at trial was simple and direct.

       {¶69} The object of simple and direct evidence is to prevent the trier of fact from

confusing the offenses or from improperly cumulating evidence of various crimes. 

; State v. Roberts, 

 (1980). This test “focuses

on whether the trier of fact is likely to consider ‘evidence of one [offense] as corroborative

of the other.’” State v. Wiles, 

 (1991), citing Dunaway v. United

States, 

 (D.C.Cir. 1953).

       {¶70} Appellant argues that the presentation of different factual situations relating

to different counts is complex and will confuse the trier of fact at the defendant’s expense.

In support, he cites State v. Van Sickle, 

 (10th Dist. 1993) and

Gregory v. United States, 

 (D.C.Cir. 1966).

       {¶71} In Van Sickle, the Tenth District found that the gruesome video of the

murder victim’s burnt corpse, though admissible on the abuse of corpse charge, was more




                                             18
prejudicial than probative on the joined aggravated murder charge. In Gregory, the

District of Columbia Circuit court found that although the joinder of the claims was proper

under Crim.R. 8, it was unfairly prejudicial to the defendant because the evidence as to

one of the counts was “so weak as to lead one to question its sufficiency to go to the jury.”

.

       {¶72} Neither case is particularly relevant to these proceedings. The evidence of

each of the relevant incidents appear to be of similar severity and the evidence of similar

weight.   Moreover, contrary to appellant’s assertion, the fact that the crimes were

committed more than a year apart, involved different victims, and occurred at different

locations does not show they were not of the same or similar character. To the contrary,

in each case, evidence was presented to show appellant accused the victims of stealing

from him, forced them to a location they did not want to go to by showing them a gun, and

assaulted them. The resulting indictments and convictions on each of these counts

included Felonious Assault and Kidnapping or Abduction.

       {¶73} The burden is on appellant to show that he was prejudiced by the joinder.

He asserts that the evidence of each event was “hardly simple or direct” and that the jury

was incapable of segregating the proof required for each offense. We disagree. The

different victims, the different locations, and the different times support a finding that the

evidence of each crime was simple and direct. Appellant testified at trial in an attempt to

refute the evidence presented within each count; while this may have made the evidence

within each count less straightforward, the evidence of each count was clear and distinct

from the evidence presented to support each other count.




                                             19
       {¶74} The State first examined the witnesses who had knowledge about the 2015

incident; then, it examined the witnesses who had knowledge about the 2016 incident.

The only deviation was of the three witnesses who testified about both incidents: Ronald

Metz, who wrote bail bonds for both cases; Joel White, who met and spoke with appellant

while in jail; and Detective Wayne Mackey, who was involved in both investigations. Each

witness’ testimony was simple and direct. They discussed each of the events separately;

they did not go back and forth mixing details involving Shateara with those involving

Shannon and Jeremy. They used names or identified people by their relationship to

appellant and were not vague in their use of pronouns. And there was a clear “changing

of gears” between the testimony of each incident.

       {¶75} In light of our finding that the two cases were of a similar nature, and the

evidence presented for each was simple and direct, and considering that prior defense

counsel stipulated to the joinder of the claims, we find appellant’s third assignment of

error is without merit.

       {¶76} Appellant’s fourth assignment of error states:

       {¶77} The trial court erred by refusing to allow appellant to represent
             himself.

       {¶78} Appellate courts “review a trial court’s denial of a request for self-

representation asserted prior to the commencement of trial de novo.” State v. Degenera,

11th Dist. Trumbull No 2015-T-0104, 

.

       {¶79} The Ohio Supreme Court has recognized “that the Sixth Amendment

“guarantees that a defendant in a state criminal trial has an independent constitutional

right of self-representation and that he may proceed to defend himself without counsel

when he voluntarily, and knowingly and intelligently elects to do so.” State v. Obermiller,



                                            20


, 

, quoting State v. Gibson, 

(1976), paragraph one of the syllabus. “The Sixth Amendment does not provide merely

that a defense shall be made for the accused; it grants to the accused personally the right

to make his defense.” Faretta v. California, 

 (1975).

       {¶80} “A criminal defendant must ‘unequivocally and explicitly invoke’ the right to

self-representation.” 

. “Additionally, as was recognized in

Faretta, the trial court must be sure that the criminal defendant ‘knowingly and

intelligently’ forgoes the ‘traditional benefits associated with the right to counsel.’” Id, at

¶30, quoting 

. “Thus, a defendant’s unambiguous assertion of the

right to self-representation triggers a trial court’s duty to conduct the Faretta inquiries to

establish that the defendant is knowingly and voluntarily waiving his constitutional right to

counsel.” 

 citing United States v. Cromer, 

 (6th

Cir. 2004). “[A] trial judge “must investigate [a defendant’s request for self-representation]

as long and as thoroughly as the circumstances of the case before him demand.”

, quoting Von Moltke v. Gillies, 

 (1948).

       {¶81} Here, it is not disputed that appellant unequivocally requested to represent

himself. Contrary to his assertion that the trial court ignored his request, however, the

court made at least three formal attempts to conduct a Faretta colloquy and ensure that

appellant was “made aware of the dangers and disadvantages of self-representation.”

. Appellant refused to cooperate on every occasion.




                                              21
       {¶82} On December 11, 2018, a pretrial hearing was held to determine whether

appellant understood the consequences of being his own attorney.1                      The following

conversation took place, on the record:

       {¶83} [The Court:] Do you understand that you have the right to have a
             lawyer represent you and the Court will appoint a lawyer for you at
             no cost if you cannot afford an attorney?

       {¶84} [Appellant:] Your Honor, how you doing today? How you doing
             today?

       {¶85} [The Court:] I am doing fine. Can you answer my question?

       {¶86} [Appellant:] For the record on the record, anything you put on the
             record I would like to strike them because he’s a third-party debt
             collector. And I feel that you have an interest in this case and –

       {¶87} [The Court:] Are you going to answer my question?

       {¶88} [Appellant:] Can I talk, please?

       {¶89} [The Court:] No, you can’t. You have to answer my question.

       {¶90} [Appellant:] I want to know how you tolling my speedy time trial? Like,
             you is violating my rights.

       {¶91} [The Court:] Have you thought this matter through and you are
             certain that you wish to proceed without a lawyer?

       {¶92} [Appellant:] Why are you violating my speedy time rights?

       {¶93} [The Court:] Do you understand that your current lawyers that you
             had were experienced and any other attorney that the Court may
             appoint are experienced in criminal matters and in particular handling
             criminal jury trials? Do you understand that?

       {¶94} [Appellant:] Objection. I don’t agree to no trial.

       {¶95} [The Court:] Do you understand that --

       {¶96} [Appellant:] I’m done talking to you, Your Honor, ‘cause you’re not --

       {¶97} [The Court:] All right. In that case, I’m going to make my ruling that
             you will not be permitted to be a pro se Defendant in this case. Your

1. The court noted that it had previously made an attempt at this on November 20, 2017 but was unable
to do so.


                                                  22
       refusal to answer questions posed to you or your decisions to make
       other generalized comments --

{¶98} [Appellant:] Objection. You’re not allowed to give me legal advice.

{¶99} [The Court:] --makes it understandable to this Court that you are not
      capable of representing yourself in this case.

{¶100} On February 14, 2018, with new counsel appointed, the court told appellant:

{¶101} [The Court:] You can have [defense counsel] represent you in this
       case and he is a seasoned attorney who has tried every kind of case
       imaginable in criminal matters and is one of the best in the entire
       area. * * * The other option is one that has you defending yourself
       and he acts as standby counsel. The problem that we’ve had in the
       past is in order for you to represent yourself, I am obligated to inquire
       of you and make a ruling that you’re capable of defending yourself.
       There are questions and there is [sic] procedures as to how that’s
       done and if you answer those questions and they’re answered to my
       satisfaction, I will allow you to represent yourself with [defense
       counsel] as standby counsel. If one of two things happen; one of
       which is that you simply don’t answer them or if you answer them
       and I’m not satisfied that you’ve answered them sufficiently to satisfy
       this Court and appellate courts that will hear this case afterwards,
       that you are in a position to adequately represent yourself, then in
       this situation, [defense counsel] will be your counsel in defense of
       this case. Do you understand that?

{¶102} * * *

{¶103} [Defense Counsel:] Can I have just one second? * * * I want to ask
       him if he want to do the Faretta.

{¶104} [The Court:] Yes.

{¶105} [Defense Counsel:] He wants to ask you questions, are you
       indicating that you want to represent yourself?

{¶106} [Appellant:] I don’t feel like I want to answer these questions today.

{¶107} [The Court:] You don’t want to answer the questions that I need to
       ask you in order to make a determination --

{¶108} [Appellant:] Not today, sir.

{¶109} [The Court:] All right.




                                      23
      {¶110} Finally, on February 28, 2018, the court again met to conduct a Faretta

colloquy.

      {¶111} [The Court:] * * * We’re here this morning in order to ask the
             Defendant questions to make sure that he understands and that it’s
             a knowing, voluntary decision on his part to be his own counsel, or
             to be pro se, as they call it. So Mr. Travis, I’m going to ask you some
             questions. And also for the record, I would note that [defense
             counsel] is here who has been appointed as standby counsel in this
             matter. And [defense counsel], it’s my understanding that you did
             have an opportunity to discuss what the issue is as far as the Court
             entertaining answers to my questions by the Defendant to make sure
             that he understands the consequences and the parameters of being
             a pro se attorney.

      {¶112} [Defense Counsel:] I did, Your Honor. If I may just sort of fill in where
             we were from the last time we were here. The Court will recall, I’m
             sure, that Mr. Travis at that point chose not to answer the Faretta
             questions. I had written a letter to him basically saying, did you
             change your mind. When I was here on Monday for another case, I
             went over to the jail, unfortunately, he hadn’t received that letter yet
             but when I spoke to him, I explained once against that the Judge
             can’t really let you exercise your Faretta rights unless and until he
             asks you those questions. I believe that Mr. Travis now understands
             that and I believe that he does want to answer those questions and
             that’s why the Court was kind enough to schedule this hearing.

      {¶113} [The Court:] Okay. All right. The first thing I’m going to ask you just
             generally is why you want to represent yourself, just generally as
             opposed to having a skilled attorney who handles these things?

      {¶114} [Appellant:] Is that the question you to ask me, like --

      {¶115} [The Court:] That’s the first question.

      {¶116} [Appellant:] May I see that question, please? May I see that question,
             please?

      {¶117} [The Court:] It’s here. Here. You got it now.

      {¶118} [Appellant:] May I see that on paper, please?

      {¶119} [The Court:] I can read all of this or none of this. I’m just asking you
             why you want to be your own attorney?

      {¶120} [Appellant:] Because I feel like representing myself.



                                            24
      {¶121} [The Court:] You think you can do better than having a skilled criminal
             trial attorney?

      {¶122} [Appellant:] I feel that I represent myself the best.

      {¶123} [The Court:] Okay. So that’s your main reason?

      {¶124} [Appellant:] Yeah. * * * Can I see that question on paper please, Your
             Honor?

      {¶125} [Defense Counsel:] May I have just a second, Your Honor?

      {¶126} [The Court:] Yes. These are questions that have been accumulated
             in order to satisfy certain case law that’s come out. They’re not
             verbatim anything from any particular court case. Each Judge does
             his own. They have to be consistent with what’s required by the
             Supreme Court.

      {¶127} After further discussion, in which appellant insists on seeing the questions

in writing, the prosecutor further attempted to explain to appellant the Faretta case and

requirements.

      {¶128} [Prosecutor:] * * * Similarly, in this kind of situation, there are
             questions that the Judge asks of you about the legal process in order
             to make a determination that you know what you are doing and what
             you understand your responsibilities are as a person defending
             themselves or a pro se litigant. And so the Judicial Conference
             prepared these sample questions for the Judge to look at –

      {¶129} [Appellant:] These questions come from the Judicial Conference?
             May I see these questions?

      {¶130} [Defense Counsel:] The point is this, unless you --

      {¶131} [Appellant:] I want to see these questions on paper because I will not
             be judged – this man, the prosecutor, I object -- I’m objecting to him
             even prosecuting this case, not [the prosecutor]. * * *

      {¶132} [The Court:] Do you want to answer my questions?

      {¶133} [Appellant:] May I see these questions, please?

      {¶134} [The Court:] Answer my question. Are you going to answer my
             questions?

      {¶135} [Appellant:] Yes, I will answer your question once I see these is --


                                            25
       {¶136} [The Court:] I’m not showing you this.

       {¶137} [Defense Counsel:] He’s not required to show them to you.

       {¶138} [The Court:] I’m not going to show them to you.

       {¶139} [Appellant:] Well, I will --

       {¶140} [Defense Counsel:] You can’t represent yourself unless you waive
              your right to counsel and his questions, [the Judge’s] questions --

       {¶141} [Appellant:] Well, we’ll be back next week.

       {¶142} [The Court:] We’re not coming back next week. He’s going to
              represent you and if you change your mind on the day of the trial --

       {¶143} [Appellant:] Objection.

       {¶144} [The Court:] -- then that day you will have to answer these.

       {¶145} [Appellant:] Objection, Your Honor. Objection.

       {¶146} The record is clear that it was appellant’s refusal to participate in the Faretta

colloquies that resulted in the trial court’s denial of his request for self-representation.

Without the cooperation of appellant, the court was unable to determine that appellant

understood the consequences and responsibilities of representing himself. Being unable

to ascertain this, as required by law, the court did not err in denying appellant’s request

to represent himself. Accordingly, appellant’s fourth assignment of error is without merit.

       {¶147} Appellant’s final assignment of error states:

       {¶148} The trial court erred by denying appellant’s motion for removal of an
              electronic restraint vest, as it deprived him of the ability to fully
              communicate with his lawyer during trial without the fear of receiving
              a debilitating electronic jolt at any time.

       {¶149} The general rule is that “‘no one should be tried while shackled, absent

unusual circumstances.’” State v. Adams, 

, 

, ¶104,

quoting State v. Kidder, 

 (1987). “‘However, shackling is left to the

trial court’s sound discretion.’” 

 quoting State v. Richey, 

,


                                             26
358, (1992). “Courts have upheld restraints in trials of defendants with a documented

history of violence or escape attempts. See, e.g., Harrell v. Israel (C.A.7, 1982), 

; Kennedy v. Cardwell (C.A.6, 1973), 

.” 

“[A]n appellate court will not disturb the trial court’s exercise of its discretion to impose

restraints if the record demonstrates ‘a compelling need to impose exceptional security

procedures.’” State v. Frazier, 1st Dist. Hamilton Nos. C-030571 and C-030572, 2004-

Ohio-4108, ¶5, quoting State v. Franklin, 

, 

.

       {¶150} In Adams, the Ohio Supreme Court upheld the use of a stun belt on the

defendant during trial. There, the trial court found that the defendant posed a risk of

escape, had difficulty in adequately controlling his frustrations and anger, and threatened

to punch his attorneys. It also noted that the device was not visible to the jury and unless

activated the jury would not know it was being worn.

       {¶151} Here, the court conducted a hearing, which does not appear to be part of

the record, to determine whether it was necessary for appellant to wear the electronic

restraint vest. On October 18, 2018, the court issued a Judgment Entry approving the

use of an electronic restraint vest to be worn by appellant under his civilian clothing during

trial. The court noted, and the record shows, that appellant had various outbursts and

interruptions during hearings on several occasions and did not respond to admonishment;

that appellant had threatened correction officers while in jail; and appellant had numerous

incidents while at the Trumbull County Jail that resulted in his solitary confinement and

ultimate transfer to Mahoning County Jail.

       {¶152} Additionally, while arguing that he would wear the vest over his civilian

clothing, appellant threatened to spit on the officers and his attorney. The record also




                                             27
shows that prior to trial appellant violated the terms of his house arrest numerous times

and had even removed the ankle monitor. After posting bail, he failed to appear for court

and was ultimately located by a fugitive recovery team in Georgia.

       {¶153} Although appellant blanketly asserts that the vest prevented him from

talking with his attorney, he makes no specific references to how this prevented him from

talking with his attorney, neither does the record show any such instances. Indeed, it did

not deter him from taking the stand and testifying in his own defense.

       {¶154} In light of appellant’s history of uncooperative attitude, disruptive behavior,

destructive actions, and absconsion, the trial court did not abuse its discretion in requiring

appellant to wear an electronic restraint vest during trial under his civilian clothing and not

visible to the jury.

       {¶155} Appellant’s fifth assignment of error is without merit.

       {¶156} Accordingly, for the reasons set forth herein, the judgment of the Trumbull

County Court of Common Pleas is affirmed.


TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




                                              28