State v. Quinn

[Cite as State v. Quinn, 2016-Ohio-139.]

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

STATE OF OHIO :
: Appellate Case No. 2014-CA-44
Plaintiff-Appellee :
: Trial Court Case No. 13-CR-869
v. :
: (Criminal Appeal from
JAMES QUINN : Common Pleas Court)
:
Defendant-Appellant :
:

...........

OPINION

Rendered on the 15th day of January, 2016.

...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50
East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, Suite 400,
Dayton, Ohio 45402
Attorney for Defendant-Appellant

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

FAIN, J.

{¶ 1} Defendant-appellant James Quinn appeals from his conviction and
 -2-

sentence for two counts of Domestic Violence, two counts of Kidnapping, one count of

Abduction, and one count of Intimidation. Quinn has raised nine assignments of error,

contending that the trial court erred by allowing evidence of other criminal acts, without

giving the defense prior notice, and by not allowing cross-examination on the other-acts

testimony or giving the jury a proper limiting instruction. Quinn argues that the State

engaged in prosecutorial misconduct and that the trial court failed to give prior notice of

the victim’s lack of credibility. Quinn contends that he was denied the effective assistance

of counsel. Quinn also argues that the record does not support the imposition of

consecutive sentences, and that the court erred in not merging the Intimidation conviction

with the Domestic Violence convictions, because the offenses were committed as one

continuous course of conduct. Finally, Quinn argues that his convictions are not

supported by sufficient evidence and are against to the manifest weight of the evidence.

{¶ 2} We conclude that the trial court properly admitted evidence of prior

convictions, and that Quinn was given advance notice of the intent to present that

evidence, because the prior convictions were identified in the indictment as an element

of the offense. We conclude that the record does support that a proper limiting

instruction was given for the other-acts evidence, and that Quinn was not denied the

opportunity to cross-examine the witness on this subject. We conclude that the trial court

had no obligation to provide advance notice of its findings regarding the victim’s

credibility, and that Quinn failed to establish a record of any potential discovery violation.

We conclude that the record fails to portray that Quinn received ineffective assistance of

counsel. We conclude that the findings the trial court made for the imposition of

consecutive sentences are not clearly and convincingly unsupported by the record, and
 -3-

we conclude that the court did not err in refusing to merge the Intimidation conviction with

one of the other offenses for purposes of sentencing. We also conclude that the

convictions are supported by the sufficiency of the evidence and are not against the

manifest weight of the evidence. Therefore, the judgment of the trial court is Affirmed.

I. The Assault on Quinn’s Mother

{¶ 3} The victim, Beverly Quinn, is a 79-year-old woman, the mother of two

daughters and two sons, including the defendant, James Quinn. In December 2013,

Quinn’s girlfriend, Samantha Ferrell, was living with Quinn’s mother, Beverly, in her two-

bedroom house. At that time, Quinn was under indictment for a domestic violence incident

involving his mother; as a condition of bond he was subject to a no-contact order with his

mother. Late in the evening, Beverly was awakened by noise, and found Quinn and

Ferrell in her home, drinking vodka and watching television. Beverly told Quinn he was

not allowed to be there and asked Quinn to leave, to turn off the television, and for

Samantha to go to her room. Quinn became very angry with his mother, pushed her into

a chair, and hit her. When Quinn suggested to Samantha that they take his mother to

“mental health,” Samantha suggested that they take Beverly out into the country and

dump her. Beverly then ran to her own bedroom, locked the door, and left the house by

crawling out of the bedroom window. Beverly went to a neighbor’s house and called the

police. During the 911 call, Quinn identifies her son, James Quinn, as the person who

has abused her, and states that Quinn left her house driving a white station wagon.

Quinn and Samantha left Beverly’s house before the police arrived. The police took

photos of Beverly’s bruises, and allowed her to return to her own home after they verified
 -4-

it was empty and secured. One of the two officers who spoke with Beverly at this time

testified that Beverly was very articulate and said it was her son who had struck her in

the face. No charges were filed against Quinn at this time.

{¶ 4} According to Beverly’s testimony at trial, several hours later Quinn returned

to his mother’s home, without Samantha, forced entrance into his mother’s bedroom, and

forced his mother to leave the house with him, threatening to take her to the country and

make her jump off a bridge. Beverly described her son as very angry and intoxicated on

alcohol and drugs. Beverly left with her son because she felt she had no choice. He

drove out into the country, stopped at a bridge and said, “if you don’t jump, I’ll push you.”

According to Beverly, Quinn decided he could not do it, and told her that he wouldn’t do

anything to her as long as she did not testify against him. Beverly testified at trial that

Quinn then drove to Walmart, hitting her in the head numerous times as he was driving.

After he left the car, Beverly got out of the car and approached a Walmart employee for

help. She told the employee that her son had hurt her and was trying to kill her. The

Walmart employee verified this course of events and testified that Beverly was scared,

but she knew who she was, where she was, and was not disoriented or confused. The

Walmart employee testified that as Beverly was talking to him, a man came up to both of

them, grabbed Beverly’s arm and complained that she was trying to hurt him. The

employee insisted that he let go and leave her alone. A surveillance video of the Walmart

parking lot corroborates this testimony, but is taken from too far a distance to identify the

man’s facial features. The surveillance video shows that Beverly approached the

employee, a man approached them, and then the unidentified man left in a white station

wagon. The employee could not identify Quinn as the person he saw and talked with in
 -5-

the parking lot. Beverly testified at trial that Quinn was driving her car, which she

described as a tan sedan, not a white station wagon. No witness identified Quinn as the

man depicted in the video in the Walmart parking lot.

{¶ 5} The detective who interviewed Beverly at Walmart testified that Beverly

identified her son, James Quinn, as the person who attacked her in her home, who forced

her into a car, threatened to harm her, and hit her face, causing visible injuries. The

detective also testified that during his interview on the scene, Beverly was very emotional,

but lucid and articulate about the events of the evening. Based on this interview, the

detective obtained a search warrant. A search of Beverly’s home revealed evidence that

her bedroom door had been damaged as the result of being forced open.

{¶ 6} Beverly was transported to the hospital by ambulance and treated in the

Emergency Room at Springfield Regional Medical Center. The paramedic who

transported Beverly testified that she was alert and oriented. The ER Nurse testified that

Beverly was oriented, and did not appear to suffer from dementia or any other mental

defect. The ER Nurse testified that Beverly identified her son as the person who had hit

and injured her.

{¶ 7} At trial, evidence of Quinn’s two prior convictions for Domestic Violence was

admitted through court records. Beverly acknowledged that she was the victim of one of

the prior Domestic Violence convictions.

II. The Course of Proceedings

{¶ 8} In November 2013, Quinn was indicted on one count of Domestic Violence,

a felony of the third degree, in violation of R.C. 2919.25(A). In December 2013, Quinn
 -6-

was indicted on two counts of Domestic Violence, felonies of the third degree, in violation

of R.C. 2919.25(A); two counts of Kidnapping, felonies of the first degree, in violation of

R.C 2905.01(B)(1); one count of Abduction, a felony of the third degree, in violation of

R.C. 2905.02(A)(2); and one count of Intimidation, a felony of the third degree, in violation

of R.C. 2921.04(B)(1). The trial court ordered that the two indictments be consolidated

and tried together. On the day of trial, the State moved to dismiss the charge in the first

indictment, and the dismissal entry was filed the day after the sentencing hearing on the

convictions from the second indictment. A jury found Quinn guilty on all counts in the

second indictment. One day after the jury verdict, the trial court conducted a sentencing

hearing.

{¶ 9} At the sentencing hearing, the trial court merged the two Kidnapping charges

and the Abduction charge for purposes of sentencing. The State elected to proceed on

count three, a charge of Kidnapping. The court denied the defense request to merge

Kidnapping with the Intimidation conviction, or the Domestic Violence conviction with the

Intimidation conviction upon the ground that all of these offenses were committed as one

continuous course of conduct. The trial court rejected the argument that the offenses

were committed by the same conduct. Quinn made a statement to express his remorse,

and the victim’s granddaughter made a statement to explain the impact on the family.

The State described Quinn’s criminal history, although neither a pre-sentence

investigation report, nor any other documentation, was presented to support the

statements. The State urged the court to order consecutive sentences because the

offenses were committed while Quinn was under indictment and out on bond for an earlier

charge of Domestic Violence against the same victim, and because consecutive
 -7-

sentences were necessary to protect the public and the victim.

{¶ 10} Quinn was sentenced to serve a total of twenty years in prison; three years

for each of the two Domestic Violence convictions, three years for the Intimidation

conviction, and eleven years for the Kidnapping conviction (into which the Abduction

conviction had been merged). The trial court ordered the sentences to run consecutively,

after finding that consecutive sentences are necessary to protect the public from future

crime and to punish the defendant, are not disproportionate to the seriousness of the

defendant’s conduct and to the danger the defendant poses to the public, are necessary

to protect the public from future crime by the defendant given the defendant’s history of

criminal conduct, that at least two of the multiple offenses were committed as a course of

conduct and the harm caused by the offenses so committed is so great or unusual that

no single prison term adequately reflects the seriousness of the defendant’s conduct, and

that the defendant committed one or more offenses while he was under indictment

awaiting trial.

III. The Trial Court Did Not Err by Admitting Evidence of Prior Convictions and

Quinn Was Given Prior Notice of the State’s Intent to Use That Evidence

{¶ 11} Quinn’s First Assignment of Error asserts as follows:

THE INTRODUCTION OF 404(B) EVIDENCE WAS ERROR AND

THE STATE OF OHIO FAILED TO ADHERE TO EVID. R. 404(B) BY

FAILING TO PROVIDE NOTICE OF INTENT TO USE EVIDENCE

{¶ 12} The admission of other-bad-acts evidence under Evid.R. 404(B) “lies within

the broad discretion of the trial court, and a reviewing court should not disturb evidentiary
 -8-

decisions in the absence of an abuse of discretion that has created material prejudice.”

State v. Miller, 2d Dist. Montgomery No. 26371, 2015-Ohio-2714, ¶ 12, citing State v.

Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 96.

{¶ 13} The Supreme Court of Ohio has held that where a prior conviction elevates

the degree of a subsequent offense, the prior conviction is an essential element that the

State must prove beyond a reasonable doubt. State v. Henderson, 58 Ohio St.2d 171,

173, 389 N.E.2d 494 (1979). This rule has been applied to admit evidence of a

defendant’s two prior convictions for Domestic Violence to elevate a third offense to a

third-degree felony. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239,

¶ 90. In the case before us, the State called a witness from the Clerk of Courts, who

testified to establish a foundation for the admission of two court documents reflecting that

Quinn had pled guilty to, and was convicted of, two prior offenses of Domestic Violence.

The trial court did not abuse its discretion in allowing the evidence of Quinn’s two prior

convictions for Domestic Violence.

{¶ 14} We also conclude that the State provided adequate notice of its intent to

use the prior convictions as evidence based on the language of the indictment. Both

Count I and Count 5 of the indictment charge Quinn with the offense of Domestic

Violence, stating that “that offender having been previously convicted of Domestic

Violence in the Clark County Municipal Court Case Numbers 00CRB305 and 12

CRB3737, in violation of Section 2919.25(A) of the Revised Code.” “The purposes of

an indictment are to give an accused adequate notice of the charge, and enable an

accused to protect himself or herself from any future prosecutions for the same incident.”

State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 20, quoting
 -9-

State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7. The

indictment charging Quinn with a third-degree felony for Domestic Violence put him on

notice that the State would be presenting evidence of his prior convictions for Domestic

Violence.

{¶ 15} Quinn’s First Assignment of Error is overruled.

IV. The Trial Court Gave an Appropriate Limiting Instruction

{¶ 16} Quinn’s Second Assignment of Error states as follows:

THE TRIAL COURT ERRED IN NOT PROVIDING LIMITING

INSTRUCTIONS AT THE TIME THE OTHER ACTS WERE TENDERED

OR TO GIVE CORRECT LIMITING INSTRUCTIONS AT THE

CONCLUSION OF THE TRIAL THAT WERE CONSISTENT WITH THE

SAME OR SIMILAR ACT STATUTE, R.C. 2945.59

{¶ 17} We acknowledge that when evidence of prior convictions is admitted into

evidence for a jury’s consideration, the trial court must give the jury a limiting instruction

to avoid misleading the jury as to the purpose of the evidence. OJI-CR 401.25 ¶ 4 of the

Ohio Jury Instructions suggests this limiting instruction for evidence of prior convictions

of the defendant:

4. USE OF PRIOR CONVICTION ENHANCING THE DEGREE OF

OFFENSE. Evidence was received that the defendant was convicted of

(describe prior conviction). That evidence was received because a prior

conviction is an element of the offense charged. It was not received, and

you may not consider it, to prove the character of the defendant in order to
 -10-

show that he acted in (conformity) (accordance) with that character.

{¶ 18} The record reveals that the trial court did give a limiting instruction, after the

close of evidence, prior to deliberations, but not at the time the evidence was presented

through the testimony of the clerk’s office supervisor. In its final jury instructions, the trial

court stated:

Evidence of prior convictions. This evidence was admitted but only

for a very limited purpose. If you find that the defendant does not have prior

convictions for domestic violence, you are to disregard that evidence. If you

find that he does have prior convictions for domestic violence, that finding

serves to enhance the degree of the domestic violence offense. Two points

about that: Number one, you are required to make a finding one way. If you

find the defendant guilty of a domestic violence, you are required to further

deliberate and make a finding as to whether or not the defendant does have

a prior conviction or prior convictions for domestic violence. While you are

required to make that finding, I want to inform you that you are not to

consider the subject of punishment. As I indicated to you earlier, your duty

is confined to the determination of whether the defendant is guilty or not

guilty.

A second comment about the evidence of prior convictions: There

is a forbidden inference. Specifically, you may not consider that evidence to

show that character of the defendant in order to find that he acted in

conformity with that character in this case. In other words, you are to make

a finding; if you find the defendant guilty of domestic violence, you are to
 -11-

make a finding as to whether or not the defendant does or does not have

prior convictions, that’s the extent. It should be the extent of your

deliberations on that matter. The prior convictions should be considered for

no other purpose.

{¶ 19} We conclude that the court’s limiting instructions were sufficient to advise

the jury of the proper purpose of the evidence of the prior convictions and to warn that

they should not be considered for any other purpose. We note that defense counsel did

not object, during trial, to the witness’s testimony or the admission of the documents

proving the prior convictions, and made no request for a limiting instruction at the time

the evidence was admitted. Therefore, whether the court erred in failing to give a limiting

instruction during the trial may only be reviewed for plain error. Errors not preserved on

the record below are forfeited, and are not subject to review on appeal, unless they

constitute plain error. State v. Fuller, 2d Dist. Montgomery No. 24598, 2012-Ohio-1979,

¶ 56, citing State v. Long, 53 Ohio St. 2d 91, 95-96, 372 N.E. 2d 804 (1978). As we

explained in State v. Byrd, 2d Dist. Montgomery No. 25842, 2014-Ohio-2553, ¶ 27:

Plain error may be noticed if a manifest injustice is demonstrated.

Crim.R. 52(B); State v. Lewis, 2d Dist. Montgomery No. 23850, 2011–Ohio–

1411, ¶ 54. In order to find a manifest miscarriage of justice, it must appear

from the record as a whole that but for the error, the outcome of the trial

clearly would have been otherwise. Id., citing State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978).

{¶ 20} Quinn’s reliance on State v. Lewis, 66 Ohio App. 3d 37, 583 N.E. 2d 404

(2d Dist. 1990), is misplaced. In Lewis, the trial court gave no limiting instruction during
 -12-

the trial and at the end of the trial, the general instructions also failed to inform the jury

that the other acts evidence was not to be used as substantive evidence that the

defendant committed the charged offense. Id. at 43. This is not a case where the limiting

instruction was defective. This is not a case where no limiting instruction was given. See,

e.g., State v. Crafton, 15 Ohio App. 2d 160, 239 N.E. 2d 571 (5th Dist. 1968). In the case

before us, we conclude that the outcome of the trial would not clearly have been otherwise

if a limiting instruction had been given during the trial. The instruction at the end of the

trial properly advised the jury of the limited purpose of the prior convictions.

{¶ 21} Quinn’s Second Assignment of Error is Overruled.

V. Trial Court Did Not Deny Quinn an Opportunity to Cross-Examine the Victim

About Other Acts

{¶ 22} For his Third Assignment of Error, Quinn asserts:

THE DEFENDANT WAS DENIED HIS RIGHT TO

CONFRONTATION AND CROSS EXAMINATION WHEN THE TRIAL

COURT DID NOT ALLOW THE DEFENDANT TO CROSS EXAMINE THE

VICTIM ABOUT OTHER ACTS EVIDENCE THE STATE ELICITED.

{¶ 23} Quinn argues that he should have been allowed to ask the victim, on cross-

examination, questions about his prior Domestic Violence convictions. The record reveals

that during the State’s questioning of Beverly, she admitted that she knew Quinn had a

prior conviction for Domestic Violence, because she was the victim of that offense. On

re-cross, defense counsel asked Beverly if her other son had influenced her to file the

previous charges for Domestic Violence, to which the victim responded, “Jim threatened
 -13-

to kill me,” which was not responsive to the question asked. The State then objected,

“We are getting into the facts of the prior conviction.” After the trial court sustained the

objection, defense counsel did not ask any other questions of the witness, and did not

proffer any evidence. We conclude that this record falls short of establishing that Quinn

was precluded from pursuing the subject of the victim’s decision to press charges in the

prior case on cross-examination.

{¶ 24} “The strategic decision not to cross-examine witnesses is firmly committed

to trial counsel's judgment.” State v. Abernathy, 5th Dist. Stark No. 2014CA00120,

2015-Ohio-1363, ¶ 19, citing State v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523

(1988). Quinn does not show how his counsel’s decision not to cross-examine on his

prior convictions was unreasonable, especially in light of the danger of prejudice that

could result by prolonging the witness’s discussion of Quinn’s guilty pleas to prior acts of

Domestic Violence.

{¶ 25} We conclude that Quinn has not shown a substantial likelihood that the

outcome of the trial would have been different if the objection to the victim’s non-

responsive answer on cross-examination (which was prejudicial to him), had been

overruled. Quinn’s Third Assignment of Error is overruled.

VI. The Trial Court Is Not Responsible for Providing Discovery

{¶ 26} For his Fourth Assignment of Error, Quinn asserts:

THE TRIAL COURT ABUSED ITS DISCRETION IN NOT

INFORMING THE DEFENSE IN RELATION TO THE VICTIM’S

CREDIBILITY.
 -14-

{¶ 27} Quinn alleges that the trial court had an obligation to inform the defense

that “the victim might change her testimony as she has done in the past.” This quotation

refers to a statement made by the trial court in its decision overruling Quinn’s post-trial

motion for a new trial. Quinn speculates that the trial court is referring to statements

made by the victim at a revocation of bond hearing that occurred in connection with the

first indictment for Domestic Violence. Quinn does not provide any citation of authority for

the proposition that the trial court has an obligation to notify the defense of the victim’s

prior testimony. The record does contain a transcript of the revocation hearing, which

confirms that Quinn was present at the hearing with his counsel. The transcript includes

the testimony of Quinn’s mother, which supported Quinn’s position that he had not

violated the no-contact order, which was a condition of his bond. At the conclusion of the

hearing, the trial court overruled the motion to revoke bond because there was no

evidence of contact with the victim.

{¶ 28} It is well established that the State “has a constitutional duty to turn over

exculpatory evidence that would raise a reasonable doubt about the defendant's guilt.”

State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 8, citing California

v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and United

States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Crim. R. 16

governs discovery in criminal cases and only applies to the defense and the prosecution,

not to the trial court. Even if Quinn had worded his Fourth Assignment of Error as the

State’s error in failing to provide discovery, we still find no violation of Crim R. 16.

{¶ 29} Crim. R. 16 (B)(7) does specifically require the prosecuting attorney to
 -15-

provide to counsel for the defense, “any written or recorded statement by a witness in the

state’s case-in-chief,” which would include statements of the victim. There is no record to

support his assertion that he requested a copy of the transcript, was not given a copy of

the transcript, or objected to the failure of the prosecutor to provide a transcript. In light

of the fact that Quinn was present when the victim’s statements were made at the bond

revocation hearing, we find no prejudice that would have materially affected the outcome

of the trial.

{¶ 30} Quinn’s Fourth Assignment of Error is Overruled.

VII. The Record Does Not Support Prosecutorial Misconduct

{¶ 31} For his Fifth Assignment of Error, Quinn alleges:

THE PROSECUTOR VIOLATED THE RULES OF DISCOVERY BY

ALLOWING FALSE AND MISLEADING TESTIMONY TO GO

UNCORRECTED.

{¶ 32} Quinn alleges prosecutorial misconduct on four grounds. First, Quinn

alleges that the State had impounded the car that Quinn was driving at the time of the

offense, but it was neither used as evidence nor disclosed to the defense. Second, Quinn

alleges that the State did not disclose the medical records from Beverly’s ER visit, and a

police report that disclosed that Beverly was not wearing her glasses or hearing aid at

the time of the offenses, which would have provided grounds to challenge her credibility

at trial. Third, Quinn argues that the State had an obligation to recognize that the victim

testimony’s at the bond revocation hearing conflicted with her testimony at trial regarding

whether she had contact with Quinn between the time the no-contact order was issued
 -16-

in October and the date of the bond-revocation hearing in November. Quinn argues that

based on this history of conflicting testimony, the State should not have stated in closing

arguments that Beverly was a credible witness who told a credible story in a credible

fashion. Quinn also argues that the photos entered into evidence by the State were used

to inflame the sympathies of the jury and that the State failed to correct misleading

testimony regarding the injuries on Beverly’s arms, as depicted in the photos, because

these injuries were actually caused by dog bites.

{¶ 33} “[T]he touchstone of due-process analysis in cases of alleged prosecutorial

misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v.

Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed. 2d 78 (1982). Additionally, the

Supreme Court of Ohio has held that prosecutorial misconduct is not reversible error

unless it deprives the defendant of a fair trial. State v. Maurer, 15 Ohio St. 3d 239, 266,

473 N.E. 2d 768 (1984).

{¶ 34} Initially, we note that Quinn did not raise claims of prosecutorial

misconduct in the trial court. However, at the time the photos were introduced by the

State, the defense did ask for a sidebar conference, and argued that some of the photos

were more prejudicial than probative of the victim’s actual injuries. The objection was

overruled and the witness did authenticate the photos as accurate depictions of her

injuries a few days after Quinn hit her. We find no abuse of discretion in admission of

the photos, which accurately depicted the extent of the victim’s injuries. The other three

claims of prosecutorial misconduct may only be reviewed for plain error. Upon this record,

we find no clear miscarriage of justice to the extent that if the alleged errors had not

occurred, the result of the trial would have been otherwise.
 -17-

{¶ 35} Quinn’s Fifth Assignment of Error is overruled.

VIII. Quinn Was Not Denied Effective Assistance of Counsel

{¶ 36} For his Sixth Assignment of Error, Quinn alleges:

QUINN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AS GUARANTEED BY UNDER THE FIFTH AND SIXTH AND

FOURTEEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO

CONSTITUTION.

{¶ 37} Ineffective assistance of counsel allegations are reviewed de novo to

determine if the counsel’s deficient performance prejudiced the outcome. To reverse a

decision based on ineffective assistance, the record must support a finding that defense

counsel's performance was deficient, and that a reasonable probability exists that, but for

counsel's omissions, the outcome of the trial would have been different. State v. Jones,

1st Dist. Hamilton No.C-130359, 2014-Ohio-3110, ¶ 27, citing Strickland v. Washington,

466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus

{¶ 38} Quinn alleges that he was not provided with effective assistance of counsel

for several reasons. First, he argues that his counsel failed to object to hearsay testimony

elicited from numerous witnesses to bolster the credibility of the victim, in violation of Evid.

R. 801 and Evid. R. 403(A). Quinn also alleges that defense counsel was ineffective when

he failed to file pre-trial motions to exclude the testimony of the victim, based on her lack

of reliability, and a pre-trial motion to exclude the photos as unfairly prejudicial. Quinn
 -18-

also alleges that counsel was ineffective by failing to seek discovery concerning the

vehicle and by failing to seek a continuance of the trial to complete discovery regarding

the vehicle, in order to determine its exculpatory value. Quinn further alleges that

defense counsel failed to seek or obtain discovery of the police report referenced in the

hospital records regarding Beverly’s emergency room treatment on the night of the

offenses. Quinn also claims that defense counsel failed to interview the Walmart

employee, whose testimony could have supported an alternative-suspect defense,

because he was unable to identify Quinn as the person he saw and spoke to in the parking

lot. Quinn also points out several deficiencies in defense counsel’s cross-examination of

the victim that could have better developed her lack of credibility and an alternative cause

of her injuries.

{¶ 39} Initially, we note that Quinn has failed to support his arguments with facts

established in the record. The record does not contain any factual support for the

impoundment of any car, or the destruction of a car prior to trial. The record does not

establish what discovery was sought by the defense, or what discovery was supplied by

the State. The record does not establish whether defense counsel conducted a pre-trial

interview of the Walmart employee. Without a record to establish these facts, the alleged

errors are not preserved for appellate review.

{¶ 40} With regard to the alleged errors committed during the trial, our review of

the record confirms that defense counsel did not object to the hearsay testimony of the

officers, the medical professionals, and the Walmart employee who spoke with the victim

on the evening of the offenses. However, we agree that the testimony of each of these

witnesses, which confirmed who the victim identified as her attacker, and that the victim
 -19-

was oriented and articulate, was admissible as an excited utterance or present-sense

impression, which are permitted as exceptions to the rule against hearsay. An excited

utterance is an exception to the hearsay rule under Evid. R. 803(2) as a statement or

declaration made under stress, in reaction to a startling event, and not the product of

reflective thought. State v. Taylor, 66 Ohio St.3d 295, 612 N.E.2d 316 (1993). The

Supreme Court of Ohio has acknowledged that “[r]eactive excited statements are

considered more trustworthy than hearsay generally on the dual grounds that, first, the

stimulus renders the declarant incapable of fabrication and, second, the impression on

the declarant's memory at the time of the statement is still fresh and intense.” Id. at 300.

Beverly’s mental, emotional, and physical condition at the time she made statements to

the officers and medical professionals was properly admissible under Evid. R. 803(3), as

present-sense impressions. Therefore, we find no merit to Quinn’s claim that defense

counsel was ineffective by his failure to object to admissible testimony.

{¶ 41} We also conclude that defense counsel was not ineffective when he chose

not to file pre-trial motions to exclude the testimony of the victim or to exclude the photos

of her injuries. As discussed above, the photos were admissible, and a pre-trial motion to

exclude them would not have changed their admissibility. A pre-trial motion to exclude

the testimony of the victim based on a lack of credibility would have also been futile.

Questions of credibility go to the weight, and not the admissibility of relevant testimony.

The victim’s testimony was relevant, and any challenge to her credibility was available to

the defense in the opportunity to cross-examine her.

{¶ 42} Our review of the record does not support Quinn’s claim that his counsel

conducted an insufficient cross-examination of the victim to draw out her lack of
 -20-

credibility. Defense counsel did raise the inconsistencies in her testimony at trial from her

testimony at the bond-revocation hearing, and suggested in closing arguments that this

inconsistency should be utilized to judge her credibility. Even assuming that defense

counsel was ineffective by failing to cross-examine the victim on the issue of the dog bites

on her arms, or her lack of glasses and a hearing aid on the night of the offenses, we

cannot say that a more thorough cross-examination would have had a substantial

likelihood of a different outcome of the trial. As discussed above, the admissible testimony

of many other witnesses supported the fact that the victim was oriented and articulate

about her injuries and the identity of her attacker near the time the offenses were

committed. Based on all the evidence presented at trial, we conclude that counsel’s

performance did not create a reasonable probability that a different outcome would have

resulted from a more effective cross-examination.

{¶ 43} Quinn’s Sixth Assignment of Error is overruled.

IX. The Findings the Trial Court Made for the Imposition of Consecutive

Sentences Are Not Clearly and Convincingly Unsupported by the Record

{¶ 44} For his Seventh Assignment of Error, Quinn asserts:

THE TRIAL COURT ERRED IN SENTENCING QUINN TO

CONSECUTIVE SENTENCES BY FAILING TO MAKE REQUIRED

FINDINGS.

{¶ 45} R.C. 2929.14(C)(4) allows a trial court to impose consecutive sentences

based on three findings: First, that the “consecutive service is necessary to protect the

public from future crime or to punish the offender; ” second, that “consecutive sentences
 -21-

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

the offender poses to the public,” and third, that one of the findings described in R.C.

2929.14(C)(4)(a), (b) or (c) is present, including that “the offender committed one or more

of the multiple offenses while the offender was awaiting trial” on another offense, “at least

two of the multiple offenses were committed as part of one or more courses of conduct,

and the harm caused by two or more of the multiple offenses so committed was so great

or unusual that no single prison term for any of the offenses committed as part of any of

the courses of conduct adequately reflects the seriousness of the offender’s conduct,” or

the offender’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.

{¶ 46} Our review of a consecutive-sentence issue is governed by R.C.

2953.08(G)(2), which requires an appellate court to review the entire record to determine

if the sentence is contrary to law, and to evaluate whether the record clearly and

convincingly does not support the statutory findings required to impose consecutive

sentences. If the “reviewing court can discern that the trial court engaged in the correct

analysis and can determine that the record contains evidence to support the findings,

consecutive sentences should be upheld.” State v. Bonnell, 140 Ohio St. 3d 209, 2014-

Ohio-3177, 16 N.E. 3d 659, ¶ 29.

{¶ 47} Initially, we note that without a PSI, the record does not contain a full

history of Quinn’s past criminal conduct, other than the two previous convictions for

domestic violence which were proven at trial. At the sentencing hearing, the trial court

identified all of the factors required by R.C. 2929.14(C), including findings that

consecutive sentences are necessary to protect the public from future crime and to punish
 -22-

the defendant, are not disproportionate to the seriousness of the defendant’s conduct and

to the danger the defendant poses to the public, are necessary to protect the public from

future crime by the defendant given the defendant’s history of criminal conduct, at least

two of the multiple offenses were committed as a course of conduct and the harm caused

by the offenses so committed is so great or unusual that no single prison term adequately

reflects the seriousness of the defendant’s conduct, and that defendant committed one

or more offenses while he was under indictment awaiting trial. We conclude that the trial

court engaged in the correct analysis, and that the record contains evidence to support

the trial court’s findings.

{¶ 48} Quinn’s Seventh Assignment of Error is overruled.

X. The Convictions Are Supported by Sufficient Evidence and Are Not Against the

Manifest Weight of the Evidence

{¶ 49} Quinn’s Eighth Assignment of Error asserts as follows:

MR. QUINN’S CONVICTIONS WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 50} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, at ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386,

678 N.E.2d 541 (1997). When reviewing whether the State has presented sufficient

evidence to support a conviction, “the relevant inquiry is whether any rational finder of
 -23-

fact, after viewing the evidence in a light most favorable to the State, could have found

the essential elements of the crime proven beyond a reasonable doubt.” State v. Dennis,

79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A guilty verdict will not be disturbed on

appeal unless “reasonable minds could not reach the conclusion reached by the trier-of-

fact.” Id.

{¶ 51} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Lane, 2d Dist. Greene No. 2008 CA 98, 2010-Ohio-

287, ¶17, quoting Wilson, supra, at ¶ 12. “When evaluating whether a conviction is

contrary to the manifest weight of the evidence, the appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider witness credibility,

and determine 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

reversed and a new trial ordered.’ ” Id., quoting Thompkins, 78 Ohio St.3d at 387, 678

N.E.2d 541 (1997).

{¶ 52} To find Quinn guilty of Domestic Violence the trier of fact would have to find

beyond a reasonable doubt that he knowingly caused or attempted to cause physical

harm to a family or household member. R.C. 2919.25(A). Physical harm to persons is

defined as “any injury, illness, or other physiological impairment, regardless of its gravity

or duration.” “Family or household member” includes “a parent,” as that term is defined

by R.C. 2919.25(F)(1)(a)(ii). Based on Beverly’s testimony, which was consistent with the

statements she made to others on the evening of the incident, the record supports a
 -24-

conclusion that the jury had sufficient evidence to convict Quinn of two counts of Domestic

Violence. The jury also had sufficient evidence to make the additional finding that Quinn

had previously been convicted of Domestic Violence, which enhanced the offense to a

third-degree felony.

{¶ 53} To find Quinn guilty of Kidnapping in violation of R.C. 2905.01(A)(2) , the

State had to prove, beyond a reasonable doubt, that Quinn by force, threat or deception

removed Beverly from her home for the purpose of facilitating a felony or flight thereafter.

In the second count of Kidnapping, to find Quinn guilty of Kidnapping in violation of R.C.

2905.01(A)(3), the State had to prove, beyond a reasonable doubt that Quinn removed

Beverly from her home for the purpose of terrorizing or inflicting serious physical harm on

Beverly. Based on Beverly’s testimony, which was consistent with the statements she

made to others on the evening of the incident, the record supports a conclusion that the

jury had sufficient evidence to convict Quinn of two counts of Kidnapping.

{¶ 54} To find Quinn guilty of Abduction, in violation of R.C. 2905.02(A)(2), the

State had to prove beyond a reasonable doubt that Quinn knowingly, by force or threat,

restrained Beverly’s liberty under circumstances that created a risk of physical harm or

placed her in fear of harm. Based on Beverly’s testimony, which was consistent with the

statements she made to others on the evening of the incident, the record supports a

conclusion that the jury had sufficient evidence to convict Quinn of Abduction.

{¶ 55} To find Quinn guilty of Intimidation, in violation of R.C 2921.04(B)(1), the

State had to prove beyond a reasonable doubt that Quinn knowingly and by force or

unlawful threat of harm, attempted to influence, intimidate or hinder Beverly from filing

criminal charges against him. Based on Beverly’s testimony, which was consistent with
 -25-

the statements she made to others on the evening of the incident, the record supports a

conclusion that the jury had sufficient evidence to convict Quinn of Intimidation.

{¶ 56} Examining the evidence presented for each of the offenses to determine if

any are against the manifest weight of the evidence does not result in any different

conclusions. We agree that the credibility of the victim was at issue, but based on the

totality of the evidence properly admitted, reasonable inferences could be drawn to

conclude that her story was credible. The record does not support that the jury lost its

way or that a manifest miscarriage of justice occurred.

{¶ 57} Quinn’s Eighth Assignment of Error is overruled.

XI. The Trial Court Did Not Err by Refusing to Merge the Offenses of Intimidation

and Domestic Violence

{¶ 58} For his Ninth Assignment of Error, Quinn asserts as follows:

THE TRIAL COURT ERRED IN NOT FINDING THE CHARGES OF

DOMESTIC VIOLENCE AND INTIMIDATION TO BE ALLIED CHARGES

OF SIMILAR IMPORT SUBJECT TO MERGER.

{¶ 59} At the sentencing hearing, the trial court denied the defense request to

merge the Kidnapping and the Intimidation convictions, or the Domestic Violence and

Intimidation convictions because all of these offenses were committed as one course of

conduct. The trial court rejected the argument that both were committed by the same

conduct. A de novo standard of review is applied when reviewing an alleged error

regarding a merger determination, State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-

5699, 983 N.E. 2d 1245.
 -26-

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

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus

as to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶ 61} “When determining whether two offenses are allied offenses of similar

import subject to merger under R.C. 2941.25, the conduct of the accused must be

considered.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

syllabus. The Supreme Court of Ohio explained:

* * * [T]he question is whether it is possible to commit one offense

and commit the other with the same conduct, not whether it is possible to

commit one without committing the other. * * * If the offenses correspond to

such a degree that the conduct of the defendant constituting commission of

one offense constitutes commission of the other, then the offenses are of

similar import.

If the multiple offenses can be committed by the same conduct, then

the court must determine whether the offenses were committed by the same
 -27-

conduct, i.e., “a single act, committed with a single state of mind.” * * *

If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

Conversely, if the court determines that the commission of one

offense will never result in the commission of the other, or if the offenses

are committed separately, or if the defendant has separate animus for each

offense, then, according to R.C. 2941.25(B), the offenses will not merge.

(Citations and quotations omitted.)

Johnson at ¶ 48–51.

{¶ 62} As we recently stated in State v. McGail, 2d Dist. Miami No. 2014-CA-27,

2015-Ohio-5384, at ¶s 50 and 51:

More recently, the Ohio Supreme Court held that two or more

offenses are of dissimilar import “when the defendant's conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable.” State v. Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892, ¶ 23. Therefore, offenses do not merge and

a defendant may be convicted and sentenced for multiple offenses if any of

the following are true: “(1) the offenses are dissimilar in import or

significance * * *, (2) the offenses were committed separately, [or] (3) the

offenses were committed with separate animus or motivation.” Id. at ¶ 25.

This analysis “may result in varying results for the same set of offenses in

different cases. But different results are permissible, given that the statute

instructs courts to examine a defendant's conduct—an inherently subjective
 -28-

determination.” Id. at ¶ 32, citing Johnson at ¶ 52.

Most recently, the Ohio Supreme Court addressed the allied-offense

issue again in State v. Earley, Slip Opinion No. 2015-Ohio-4615. There the

majority characterized the analysis in its earlier Johnson lead opinion as

“largely obsolete.” Id. at ¶ 11. The Earley court instead embraced Ruff,

which, as noted above, considers a defendant’s conduct, his animus, and

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

concluded that misdemeanor OVI and felony aggravated vehicular assault

“are offenses of dissimilar import and significance that are to be punished

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

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

and we review a trial court’s ruling on the issue de novo. State v. LeGrant,

2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.

{¶ 63} “The Supreme Court of Ohio has interpreted the term ‘animus' to mean

‘purpose or, more properly, immediate motive.’” State v. Thomas, 2d Dist. Darke No.

2013-CA-11, 2014-Ohio-2666, ¶ 15, quoting State v. Logan, 60 Ohio St.2d 126, 131, 397

N.E.2d 1345 (1979).

{¶ 64} Quinn argues that the Intimidation conviction should have merged with the

Domestic Violence conviction because both offenses were committed with the same

conduct and the same animus. The convictions for Domestic Violence were based on two

separate acts of violence that occurred hours apart, one in the victim’s home and one in

the car, so they were not done at the same time or as part of a continuous course of

conduct. The facts underlying the Intimidation conviction relate to the statement Quinn
 -29-

made to his mother that he would not hurt her, or force her to jump off a bridge, if she did

not report him to the police. The animus for the acts of Domestic Violence were to cause

physical harm. The animus for the act of Intimidation was to avoid prosecution for his

crimes. Consequently, Quinn has not met his burden of establishing that merger was

required, because the offenses were committed with separate conduct and with a

separate animus.

{¶ 65} Upon our review of the record, we conclude that the trial court did not err

when it failed to merge the offenses or failed to find that the offenses were committed

with the same conduct or with the same animus. Therefore, Quinn’s Ninth Assignment of

Error is overruled.

XII. Conclusion

{¶ 66} All of Quinn’s assignments of error having been overruled, the judgment

of the trial court is Affirmed.

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

DONOVAN and WELBAUM, JJ., concur.

Copies mailed to:

Ryan A. Saunders
Lucas W. Wilder
Hon. Douglas M. Rastatter