State v. Lowe

[Cite as State v. Lowe, 2013-Ohio-3913.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99176

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

ANTHONY LOWE
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-565293

BEFORE: Boyle, P.J., Rocco, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: September 12, 2013
ATTORNEY FOR APPELLANT

Thomas A. Rein
Suite 940
The Leader Building
526 Superior Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Edward Fadel
Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ALSO LISTED

Anthony Lowe
Inmate No. 632-723
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
MARY J. BOYLE, P.J.:

{¶1} Appellant, Anthony Lowe, appeals his conviction for kidnapping. Through

counsel, he argues that the kidnapping conviction cannot stand where he was found not

guilty of felonious assault and that the conviction is not supported by sufficient evidence

and is against the manifest weight of the evidence. In addition, appellant individually

argues that he was denied appropriate jail-time credit and was deprived of effective

assistance of counsel. Finding no merit to his appeal, we affirm.

Procedural and Factual Background

{¶2} On August 9, 2012, appellant was indicted on one count of felonious assault

in violation of R.C. 2903.11(A)(2) and one count of kidnapping in violation of R.C.

2905.01(A)(2). A jury trial commenced on October 9, 2012. At trial, Mahmoud

Shouman and Brittany Sherrod testified to substantially the same events. In the early

morning hours of July 26, 2012, after stopping for coffee, Brittany was on her way back

to her house on Governor Avenue with her boyfriend, Mahmoud. They intended to go

back to Brittany’s house and watch a movie. After the two pulled into the drive and

exited the car, a green Ford Crown Victoria pulled in behind Mahmoud’s vehicle. It was

approximately 2:30 a.m., and the car was playing loud music with the windows down.

Brittany testified that she approached the car and recognized appellant as the driver. She

asked him to leave. The two had a prior relationship that included sexual activity, but

Brittany classified appellant as an “associate.” The two got into an argument, and
appellant hit Brittany hard in the legs with his car door. He then exited the vehicle with a

beer bottle in his hand. Brittany testified that appellant was obviously intoxicated and

incoherent. She continued to tell him to leave. He then knocked a coffee cup out of her

hand, spilling hot coffee on her, and then punched her in the head. Mahmoud attempted

to intervene but was prevented because appellant’s car with its open door blocked the

driveway opening between the two houses. Brittany was reeling against the inside of the

open car door after being punched. She testified that appellant then broke the beer bottle

and, while holding the jagged broken bottle in his hand, pointed it at Mahmoud and said

he would cut Mahmoud.

{¶3} Brittany testified appellant then focused on her and swung the broken bottle

at her. She grabbed at his hand and sustained a cut to her own hand between her thumb

and index finger. She managed to grab his hand and cause him to fall backward into the

car, cutting himself with the bottle. He then grabbed Brittany by the shirt, pulled her

toward the car, and put the still-running car in reverse. He quickly backed the vehicle out

of the driveway and down the street while still holding Brittany by her shirt. She was

caught in between the door and the passenger compartment. The door struck her legs,

and she tried to hang onto the roof of the car and place her feet on the sill of the doorway.

Appellant backed down the road the length of approximately two houses, then put the

car in drive and “floored it.” Brittany could not break free because appellant was

gripping her shirt. She managed to hang onto the roof for approximately the length of
three houses before her shirt ripped and she tumbled onto the brick street. Shortly after

the incident, Brittany called 911, and Cleveland police officers timely responded.

{¶4} Brittany testified that she sustained serious injuries as a result of the incident.

She hit her head on the street and blacked out. She also had several bruises and scrapes

on her legs, back, and arms, and a laceration on her hand. She sought medical treatment

and was prescribed pain medication and advised to follow-up if she experienced dizziness

or other signs of a concussion.

{¶5} Appellant also called 911 and reported that he had been stabbed. EMS

responded to his house on Elsienna Avenue, but he was uncooperative. Police were then

dispatched to assist EMS. On arriving, Cleveland police officer John Halkiadakis

noticed a green Ford Crown Victoria in appellant’s driveway. He had received a radio

broadcast from Officer James Zak about such a car. Officer Zak had responded to

Brittany’s 911 call and put out a description of the suspect involved in Brittany’s assault.

This included a physical description of appellant and the description of the green car.

Officer Halkiadakis assisted the EMS personnel in transporting appellant to the hospital

and radioed Officer Zak to report to the hospital to speak to appellant.

{¶6} Officer Zak testified that he attempted to talk to appellant, but he was

combative and had to be restrained. Appellant was incoherent, spit on a nurse, and

assaulted a security guard. Appellant was restrained by police and did not relay how he

came to be stabbed. After Officer Zak confirmed the identity of appellant as Brittany’s

assailant, appellant was arrested.
 {¶7} After these police officers testified, as well as investigating detective Sean

Richardson, and the state rested, appellant called one witness to testify about the severity

of his injuries — one large, circular cut to his side and one slice on his forearm.

Appellant then rested and requested that the charges be dismissed on his Crim.R. 29

motion. On October 12, 2012, the jury found appellant not guilty of felonious assault but

guilty of kidnapping. The trial court then set sentencing for October 18, 2012.

{¶8} Appellant was sentenced to a prison term of four years for kidnapping. The

court stated that credit for time served in jail awaiting trial would only apply to the

community control violation sentence in Cuyahoga C.P. No. CR-539425 (Dec. 13, 2010).

Fines and costs were waived, and appellant perfected a timely appeal.

{¶9} Appellate counsel filed a brief asserting three errors, and this court granted

leave for appellant to separately file a pro se appellate brief, wherein he asserts four

errors:

I. The state failed to present sufficient evidence to sustain a conviction
against appellant.

II. Appellant’s conviction is against the manifest weight of the evidence.

III. The verdict finding appellant guilty of kidnapping was contrary to law
because it was inconsistent with the jury’s finding that appellant was not
guilty of felonious assault.

Supplemental Assignment of Error I. The appellant was denied due
process of law as guaranteed by the 5th and 4th amendments of the United
States Constitution when the jury found him guilty of kidnapping where
there was insufficient evidence to prove each element of the offense
charged, beyond a reasonable doubt, contrary to State v. Jenks and Jackson
v. Virginia.
 Supplemental Assignment of Error II. The trial court erred and abused its
discretion in denying the appellant’s Ohio Criminal Rule 29 motion for
acquittal, thereby denying the appellant due process of law as guaranteed by
the Fifth and Fourteenth Amendments of the United States Constitution.

Supplemental Assignment of Error III. The trial court erred and abused its
discretion in denying appellant jail-time credit for this case, thereby
violating the equal protection clause of the Fourteenth Amendment of the
United States Constitution and in violation of State v. Fugate and State v.
Bailey.

Supplemental Assignment of Error IV. The appellant was denied the

effective assistance of trial counsel when he failed to present any argument

to support a motion for acquittal, thereby denying the appellant his Sixth

Amendment right to effective assistance of counsel under the United States

Constitution and contrary to Strickland v. Washington.

Sufficiency and Manifest Weight

{¶10} In appellant’s first and second assignments of error and first and second

supplemental assignments of error, he claims that his conviction for kidnapping is not

supported by sufficient evidence and is against the manifest weight of the evidence.

{¶11} When an appellate court reviews a record on a sufficiency challenge, “‘the

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. This same standard applies to review
of a decision regarding a Crim.R. 29 motion for acquittal. State v. Hill, 8th Dist.

Cuyahoga No. 99186, 2013-Ohio-3245, ¶ 18.

{¶12} A manifest weight challenge, however, questions whether the state met its

burden of persuasion at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. This court

weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.

State v. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). A conviction

should be reversed as against the manifest weight of the evidence only in the most

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

{¶13} The kidnapping offense of which appellant was found guilty is defined in

R.C. 2905.01(A)(2) as follows: “No person, by force, threat, or deception, * * * shall

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

the other person * * * [t]o facilitate the commission of any felony or flight thereafter[.]”

{¶14} Brittany testified that appellant grabbed hold of her shirt and forced her to

cling to a moving vehicle after assaulting her with a broken bottle. Appellant continued

this conduct, not for mere feet, but, as Brittany testified, appellant drove backwards the

length of two houses and then forward the length of three houses until her shirt finally

ripped and she fell from the car, which was traveling at a high rate of speed. Mahmoud

also testified to these events.
 {¶15} This evidence is sufficient to demonstrate that appellant used force to

remove or restrain Brittany after committing a felonious assault involving the use of a

deadly weapon in violation of R.C. 2903.11(A)(2) as charged by the state and fleeing

immediately thereafter. This satisfies the elements of R.C. 2905.01(A)(2). The

kidnapping statute only requires that the restraint occur to facilitate a felony or flight

thereafter. It does not require there be a conviction of another felony. “The acquittal of

felonious assault does not undermine the conviction for kidnapping, and in any event, a

separate felony conviction is not required to establish the offense of kidnapping.” State

v. Hodges, 8th Dist. Cuyahoga No. 91078, 2009-Ohio-1071, ¶ 27, citing R.C. 2905.01.

Appellant’s argument that there can be no kidnapping conviction without a felonious

assault conviction is contrary to the statute and case law. Therefore, appellant’s

conviction for kidnapping is supported by sufficient evidence.

{¶16} Appellant’s conviction is also not against the manifest weight of the

evidence. Brittany’s testimony was credible as it was corroborated by Mahmoud, and

was uncontradicted by other evidence introduced at trial. Appellant argues that he was

the one who was stabbed by Brittany, but that theory was barely alluded to at trial. It was

not made clear until appellant’s statements to the trial court at sentencing and was not

borne out by the evidence at trial. Brittany testified that appellant was stabbed in the

struggle over the broken bottle as he fell backwards into the car. This is not inconsistent

with his wound. Further, there is substantial evidence that Brittany was dragged

alongside a speeding car by appellant — the act that constituted kidnapping.
 {¶17} The crux of appellant’s argument is that there can be no kidnapping

conviction without some other felony conviction. As stated above, “[t]he acquittal of

felonious assault does not undermine the conviction for kidnapping, and in any event, a

separate felony conviction is not required to establish the offense of kidnapping.”

Hodges at ¶ 27, citing R.C. 2905.01. The jury finding appellant not guilty of felonious

assault does not mean appellant’s kidnapping conviction is against the manifest weight of

the evidence.

Inconsistent Verdicts

{¶18} In appellant’s third assignment of error, he argues that the verdicts are

inconsistent, and his conviction for kidnapping cannot stand in light of the jury finding

him not guilty of felonious assault.

{¶19} “[I]n criminal cases, consistency between verdicts on several counts of an

indictment is unnecessary where the defendant is convicted on one or some counts, and

acquitted on others, and the conviction will generally be upheld, irrespective of its

rational incompatibility with the acquittal.” State v. Sailor, 8th Dist. Cuyahoga No.

83552, 2004-Ohio-5207, ¶ 88, citing State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d

1018 (10th Dist.1985).

{¶20} Addressing the same claim regarding a not guilty verdict of rape but guilty

of kidnapping, the Ninth District indicated that the kidnapping statute “‘punishes certain

removal or restraint done with a certain purpose and the eventual success or failure of the

goal is irrelevant.’ Accordingly, a finding of not guilty on the rape charge ‘is not in any
sense a finding that there was no intent or purpose to commit those crimes at the time of

the abduction.’” (Citations omitted.) State v. Smith, 9th Dist. Summit Nos. 23468 and

23464, 2007-Ohio-5524, ¶ 41, quoting State v. Matthieu, 3d Dist. Mercer Nos. 10-02-04

and 10-02-05, 2003-Ohio-3430, ¶ 17.

{¶21} The present case presents an even stronger argument for upholding

appellant’s conviction. Here, the jury found the evidence insufficient for a conviction of

felonious assault involving the use of a broken bottle as a deadly weapon, but the ultimate

success of the state meeting all the elements sufficient to convince the jury that appellant

committed a felonious assault has no bearing on his culpability for kidnapping. The jury

found that the restraint of Brittany by force as appellant drove down the road with her

clinging to the car constituted kidnapping. The not guilty finding on the count of

felonious assault does not impact appellant’s legal culpability for kidnapping because

“the individual counts of an indictment containing more than one count are not

interdependent, and an inconsistency in a verdict does not arise out of inconsistent

responses to different counts but only arises out of inconsistent responses to the same

count.” Hill, 8th Dist. Cuyahoga No. 99186, 2013-Ohio-3245, at ¶ 26, citing State v.

Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), paragraph one of the syllabus.

See also Hodges, 8th Dist. Cuyahoga No. 91078, 2009-Ohio-1071, ¶ 27 (“a separate

felony conviction is not required to establish the offense of kidnapping”). Therefore,

appellant’s third assignment of error is overruled.
 Jail-Time Credit

{¶22} In his third supplemental assignment of error, appellant argues that the trial

court erred in not applying jail-time credit toward the sentence imposed for kidnapping.

Appellant did not object to the allocation of credit at the time of sentencing or file a

motion for jail-time credit and has therefore waived all but plain error. State v. Harris,

7th Dist. Mahoning No. 11 MA 184, 2012-Ohio-5612, ¶ 26. “‘Plain error does exist

where the trial court fails to properly calculate an offender’s jail-time credit, pursuant to

R.C. 2967.191, and to include the amount of jail-time credit in the body of the offender’s

sentencing judgment.’” Id., quoting State v. McClellan, 7th Dist. Mahoning No. 10 MA

181, 2011-Ohio-4557, ¶ 39, citing State v. Miller, 8th Dist. Cuyahoga Nos. 84540 and

84916, 2005-Ohio-1300, ¶ 10.

{¶23} “‘The Equal Protection Clause requires that all time spent in any jail prior to

trial and commitment by [a prisoner who is] unable to make bail because of indigency

must be credited to his sentence.’” (Emphasis sic.) State v. Fugate, 117 Ohio St.3d

261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7, quoting Workman v. Cardwell, 338 F.Supp.

893, 901 (N.D.Ohio, 1972), vacated in part on other grounds, 471 F.2d 909 (C.A.6,

1972).

{¶24} R.C. 2967.191, instructs that the stated prison term shall be reduced “by the

total number of days that the prisoner was confined for any reason arising out of the

offense for which the prisoner was convicted and sentenced, including confinement in

lieu of bail while awaiting trial * * *.”
 {¶25} Ohio Administrative Code provisions indicate when and how jail-time credit

should be applied. Ohio Adm.Code 5120-2-04(F) provides that

[i]f an offender is serving two or more sentences, stated prison terms or
combination thereof concurrently, the department shall independently
reduce each sentence or stated prison term for the number of days confined
for that offense. Release of the offender shall be based upon the longest
definite, minimum and/or maximum sentence or stated prison term after
reduction for jail time credit.

See also Fugate at ¶ 9. Ohio Adm.Code 5120-2-04(G) has a different rule for prison

sentences that are served consecutively to one another. In such cases, the code instructs

that jail-time credit be applied only once, to the total term. See Fugate at ¶ 9.

[I]n order to satisfy this objective, when concurrent prison terms are
imposed, courts do not have the discretion to select only one term from
those that are run concurrently against which to apply jail-time credit. R.C.
2967.191 requires that jail-time credit be applied to all prison terms
imposed for charges on which the offender has been held. If courts were
permitted to apply jail-time credit to only one of the concurrent terms, the
practical result would be, as in this case, to deny credit for time that an
offender was confined while being held on pending charges. So long as an
offender is held on a charge while awaiting trial or sentencing, the offender
is entitled to jail-time credit for that sentence; a court cannot choose one of
several concurrent terms against which to apply the credit.

Fugate at ¶ 12.

{¶26} The state points to the Tenth District’s decision in State v. Speakman, 10th

Dist. Franklin Nos. 08AP-456, 08AP-457, and 08AP-458, 2009-Ohio-1184, as being

more analogous to the present situation than Fugate. In Speakman, the defendant agreed

to plead guilty to several counts, which included a negotiated sentence of jail-time credit

for the community control violation only. Id. at ¶ 14. The court went on to note that the

community control violation sanction was a jail term imposed and served before the
sentence for the other counts. The court reasoned, the sentences were not imposed

concurrently to each other, but the community control jail term had ended by the time the

other sentences were imposed.

{¶27} This court has recently sanctioned this procedure where the community

control violation sentence was imposed prior to the sentencing hearing on the other

convictions, and jail-time credit was allocated solely to the community control violation.

State v. Maddox, 8th Dist. Cuyahoga No. 99120, 2013-Ohio-3140. This court held,

[t]he trial court did not sentence Maddox to concurrent prison terms for the

probation violations and the new charges. Here, Maddox stipulated to

probation violations in several cases. In exchange for Maddox’s

stipulation, the trial court terminated Maddox’s probation and stated that all

jail-time credit would be applied to the probation violations. So rather than

sentence Maddox to additional time for his probation violations, the trial

court essentially sentenced Maddox to time served for those violations (i.e.,

the amount of time he spent in jail once he was arrested on the new charges,

simultaneously violating his probation in several cases). Thus, the cases

involving Maddox’s probation violations were terminated before Maddox

was sentenced on the new charges.

Id. at ¶ 49. The same procedure was used in the present case.
 {¶28} Further, this case is distinguishable from Fugate for another reason.

Appellant was found to have violated conditions of community control by his use of

alcohol. The trial court admonished appellant:

We have all the testimony from everybody at the scene, along with
the police officers at the hospital, * * * you were acting like a lunatic
because you were so completely intoxicated[.] * * * I don’t call that doing
everything you can to abide by the terms and conditions of probation or
parole.

***

The one — the first thing I told you when I sentenced you and placed
you on probation, on December 13, 2010, is that you have an alcohol and
drug problem. That you will abstain from its use, * * *. You violated
those terms and conditions.

{¶29} In the present case, the trial court specifically found that appellant violated

the conditions of community control because of his alcohol use. This constitutes a

separate and distinct matter from the kidnapping of Brittany for purposes of R.C.

2967.191, which

requires that jail credit be given only for the time the prisoner was confined
for any reason arising out of the offense for which he was convicted and
sentenced. It does not entitle a defendant to jail-time credit for any period
of incarceration which arose from facts which are separate and apart from
those on which his current sentence is based.

(Emphasis added.) State v. Smith, 71 Ohio App.3d 302, 304, 593 N.E.2d 402 (10th

Dist.1992), citing State v. Dawn, 45 Ohio App.2d 43, 340 N.E.2d 421 (1st Dist.1975).

{¶30} Here, appellant was detained on charges unrelated to his use of alcohol,

which constituted a violation of conditions of community control. Therefore, the trial

court could allocate jail-time credit solely to the community control violation when it
sentenced appellant to time served in that case. Appellant’s supplemental third

assignment of error is therefore overruled.

Ineffective Assistance of Counsel

{¶31} Finally, appellant argues in his fourth supplemental assignment of error that

trial counsel was ineffective when he failed to make arguments supporting appellant’s

Crim.R. 29 motions for acquittal, made at the close of the state’s case and again at the

close of trial.

{¶32} To demonstrate ineffective assistance of counsel, defendants must satisfy

both parts of a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Defendants must first show that their trial counsel’s

performance was so deficient that the attorney was not functioning as the counsel

guaranteed by the Sixth Amendment to the United States Constitution. Id. Second,

defendants must establish that counsel’s “deficient performance prejudiced the defense.”

Id. The failure to prove either prong of the Strickland test is fatal to a claim of

ineffective assistance. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000),

citing Strickland, supra.

{¶33} The evidence, as examined above, clearly demonstrates that the state met its

burden of production on every element of the offense of kidnapping. Therefore, the most

brilliantly composed argument for acquittal would not have changed the outcome.

Further, trial counsel did provide arguments for his renewed motion for acquittal after

resting his case. The trial court, however, cut him off and overruled the motion.
Therefore, trial counsel was not constitutionally ineffective. Appellant’s fourth

supplemental assignment of error is overruled.

{¶34} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

________________________________________
MARY J. BOYLE, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR