State v. Stevens

[Cite as State v. Stevens, 2021-Ohio-2643.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2020-P-0043

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

EMMETT R. STEVENS,
Trial Court No. 2019 CR 00693
Defendant-Appellant.

OPINION

Decided: August 2, 2021
Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Paul M. Grant, 209 South Main Street, Eighth Floor, Suite 3, Akron, OH 44308 (For
Defendant-Appellant).

MARY JANE TRAPP, P.J.

{¶1} Appellant, Emmett R. Stevens (“Mr. Stevens”), appeals from the judgment

entry of the Portage County Court of Common Pleas sentencing him to an aggregate

prison sentence of 70 to 75 years following a bench trial in which he was found guilty of

six counts of rape, three counts of kidnapping, aggravated burglary, aggravated robbery,

felonious assault, and tampering with evidence.

{¶2} Mr. Stevens asserts five assignments of error, contending that (1) the trial

court erred by denying his pretrial motion for new counsel; (2) the trial court erred in
denying his Crim.R. 29 motion for acquittal because the state failed to produce sufficient

evidence to sustain his convictions for felonious assault, aggravated robbery, and

aggravated burglary; (3) his convictions for felonious assault, aggravated burglary, and

aggravated robbery are against the manifest weight of the evidence; (4) the trial court

erred by failing to merge, for purposes of sentencing, (a) the kidnapping, aggravated

burglary, and aggravated robbery offenses with the rape offenses, and (b) the felonious

assault offense with the rape offenses and with the kidnapping offense; and (5) the trial

court erred by imposing consecutive sentences.

{¶3} After a careful review of the record and pertinent law, we find as follows:

{¶4} (1) The trial court did not abuse its discretion in denying Mr. Stevens’

requests to discharge his appointed counsel because the record does not demonstrate a

total breakdown in the attorney-client relationship between Mr. Stevens and his counsel.

{¶5} (2) The state presented sufficient evidence, if believed, to prove the

offenses of aggravated burglary, aggravated robbery, and felonious assault beyond a

reasonable doubt.

{¶6} (3) Mr. Stevens has not demonstrated that the trier of fact clearly lost its

way and created a manifest miscarriage of justice with respect to the offenses of

aggravated burglary, aggravated robbery, and felonious assault.

{¶7} (4) Based on the facts underlying Mr. Stevens’ conduct, the trial court did

not err by failing to merge (a) the kidnapping, aggravated burglary, or aggravated robbery

offenses with the rape offenses, or (b) the felonious assault offense with the rape offenses

or with the kidnapping offense.

{¶8} (5) Mr. Stevens has not clearly and convincingly established that his

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consecutive sentences are unsupported by the record or contrary to law.

{¶9} Thus, we affirm the judgment of the Portage County Court of Common

Pleas.

Substantive and Procedural History

{¶10} This case involves Mr. Stevens’ breaking into a woman’s home in the early

morning hours, assaulting and raping her in her bedroom, stealing her bedsheet, and

attempting to destroy evidence.

The Offenses

{¶11} On July 20, 2019, the victim in this case, who we will refer to as Jane Doe

(“Ms. Doe”), returned to her home in Kent, Ohio, at about 11 p.m. At around midnight,

she set her alarm for work in the morning and went to bed.

{¶12} She awoke in the middle of the night and noticed there was a person in her

bedroom standing over her bed, who the state alleges was Mr. Stevens. She screamed,

jumped out of bed, pushed Mr. Stevens, and tried to run for the door. Mr. Stevens

grabbed her, and they began struggling. During the struggle, she ripped his shirt and

pulled something off his neck that she thought was a necklace.

{¶13} Mr. Stevens wrapped his arm around Ms. Doe’s neck from behind and put

her in a choke hold. He kept pulling his arm tighter, and she started to lose her breath.

He repeatedly asked her if she wanted him to “choke [her] out.” Although she could hardly

breathe, Ms. Doe eventually responded, “No, please don’t.” Mr. Stevens loosened his

grip, got Ms. Doe on the floor, and smashed her head onto the carpet. He pinned her

down with his knee on her back, pried open her mouth, and forced her to perform fellatio,

telling her that he would stab her if she bit him.

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 {¶14} Mr. Stevens rubbed Ms. Doe’s buttocks and stated he wanted to have anal

sex. He demanded lotion and reached for it on the dresser. Ms. Doe attempted to stand

up and run, but Mr. Stevens grabbed her by the back of the hair, pulled her back onto the

floor, and got on top of her. He put his fingers in her anal and vaginal openings and then

put his penis in her anal opening. He next threw her face down on the bed, where he

attempted anal intercourse and performed vaginal intercourse.

{¶15} Mr. Stevens turned Ms. Doe over on the bed, pinned her down, and again

forced her to perform fellatio. Ms. Doe quickly turned her head, and Mr. Stevens

ejaculated on the side of her face.

{¶16} Ms. Doe’s alarm clock went off. Mr. Stevens turned off the alarm, pushed

Ms. Doe back on the bed, and began pushing her pillow on her face. She begged him

not to kill her. He told her not to move and he would not kill her. Mr. Stevens grabbed

the comforter and threw it over top of Ms. Doe. He got dressed, yanked the bedsheet out

from under her, and left the room. When Ms. Doe thought he had left the house, she

grabbed her cell phone, locked herself in the bathroom, and called 911.

Investigation

{¶17} Several officers from the Kent Police Department responded to the call,

parked nearby, and proceeded to the house on foot. Ms. Doe approached the officers

visibly distraught. She was crying, shaking, and hyperventilating; her face was red; and

she was walking hunched over. She told the officers that an unknown man entered her

home in the middle of the night, climbed on top of her, and was strangling her. She

provided a general description of the man but did not know his identity. She also indicated

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that the man may have taken the bedsheets and that she had torn a necklace off of him.

Ms. Doe was transported to the hospital by ambulance.

{¶18} The police secured the house, and Patrolman Dominic Poe, with his canine

partner, Iron, conducted a track. Iron led officers to the backyard of a nearby residence

located on an adjacent street. Police dispatch notified the officers that Mr. Stevens was

a known associate of the residence. Officers were familiar with Mr. Stevens from previous

interactions and knew that he matched Ms. Doe’s general description of her assailant.

{¶19} Patrolman Drake Oldham (“Ptlm. Oldham”) saw Mr. Stevens come to the

back door of the residence talking on a phone. A short time later, William Stevens

(“William”), who is the owner of the house and Mr. Stevens’ father, came to the door and

spoke with Ptlm. Oldham. Mr. Stevens eventually exited the house, and Officer Michael

Carnahan (“Officer Carnahan”) placed him in handcuffs for detention.

{¶20} William told the officers that Mr. Stevens did not live there. Another family

member stated that Mr. Stevens was not present at the house the day before but had

arrived at about 7 a.m. that morning.

{¶21} William also told the officers that Mr. Stevens had put something in the

washing machine located in the basement. William had turned the washing machine off

because there was a problem with drainage. With William’s consent, the officers

searched the washing machine and discovered a sheet. William indicated he did not

know who it belonged to, so the officers collected it as evidence.

{¶22} Meanwhile, Mr. Stevens became agitated while handcuffed outside, so

Officer Carnahan walked him to the cruiser, read him his Miranda rights, and asked him

what was going on. Mr. Stevens stated that the night before, he got off work at 8 pm;

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went to a festival in Ravenna; played pool in downtown Kent; and went to EuroGyro.

During the night, he was drinking Johnny Walker whiskey and Labatt Blue. He arrived at

his father’s home at 6 a.m. because he wanted to see his kids.

{¶23} While speaking to Mr. Stevens, Officer Carnahan noticed an odor of

alcoholic beverage from his breath, that his face was swollen, and that he had a cut on

the left side of his nose. Mr. Stevens stated that he sustained his injuries from falling off

a ladder at work.

{¶24} Mr. Stevens’ agitation escalated, so Officer Carnahan placed him in the

back of his cruiser. Eventually, the police decided to arrest Mr. Stevens and transport

him to the police station. Prior to transport, the officers had Mr. Stevens exit the cruiser

to fix his handcuffs. At this time, officers noticed Mr. Stevens had a reddish cord in his

hand, which the police collected as evidence. At the police station, officers placed Mr.

Stevens in a holding cell and eventually collected his clothing and a DNA sample.

{¶25} At the police station, the officers unraveled the sheet obtained from the

washing machine and discovered a torn t-shirt. They observed burn marks on both items.

Ms. Doe later identified the sheet from the washing machine as the sheet that was taken

from her bed and indicated it did not previously have burn marks on it. She also identified

the shirt as being the one her assailant was wearing.

{¶26} Detective David Marino (“Det. Marino”) went to Ms. Doe’s home to

investigate the crime scene. Upon arrival, an officer gave him pink earbuds that were

taken from Mr. Stevens’ hand prior to his transport to the police station. One of the

earbuds was broken, and the other earbud was missing the soft rubber portion. Det.

Marino subsequently found both the broken-off earbud and the rubber portion on the floor

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of Ms. Doe’s bedroom. He also observed new damage to the doorways leading from the

outside to the garage and from the garage into the house, which indicated forced entry.

{¶27} While the police were investigating, Ms. Doe was taken to the hospital.

Amanda Shields (“Nurse Shields”), a sexual assault nurse examiner (“SANE”), conducted

a physical examination, documented and photographed Ms. Doe’s injuries, and collected

swabs for a sexual assault kit.

{¶28} Ms. Doe’s injuries included abrasions on her cheek, elbow, mons pubis,

vaginal area, and rectum; an abrasion and injury on her right hand; bruising on her left

hand, left forearm, and right flank; bruising and discoloration on her left lower lip; redness

on the sclera of her left eye, which is known as petechiae; redness on her upper eyelid;

and discoloration to her jaw. She also reported pain to her jaw, throat, and neck.

{¶29} According to Nurse Shields, her physical findings were consistent with

assault and the circumstances Ms. Doe reported. In addition, the petechiae to Ms. Doe’s

eye and the pain Ms. Doe reported to her throat, jaw, and neck were consistent with

strangulation.

{¶30} Detective Karen Travis (“Det. Travis”) met with Ms. Doe during the course

of her physical examination and took photos of injuries that she could readily observe.

According to Det. Travis and based on her experience, the physical injuries she observed

on Ms. Doe were consistent with Ms. Doe’s allegations of physical assault.

{¶31} Ms. Doe did not require any stiches or have any broken bones or fractures

and was able to leave the hospital on the same day. Ms. Doe suffered anal tearing from

which she experienced pain in the days following the assault. She was also given a CT

scan as a result of neck pain, which did not show any fractures of her vertebra.

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 {¶32} When Ms. Doe later reviewed the police report and saw William’s address,

she realized that about two years prior, her youngest son was acquainted with William’s

son, Mr. Stevens. She recalled that Mr. Stevens and her son would sometimes smoke

cigarettes outside her house.

{¶33} According to William, he visited Mr. Stevens in jail, and Mr. Stevens

admitted during their conversation that he raped Ms. Doe.

DNA Testing

{¶34} A forensic scientist at the Ohio Bureau of Criminal Investigation (“BCI”)

performed DNA testing on items submitted by the Kent police. She found no foreign DNA

on the vaginal samples; a mixture of DNA on the anal samples, which were not sufficient

for comparison; and mixtures of DNA from samples taken from Ms. Doe’s forehead and

neck that were consistent with Ms. Doe and Mr. Stevens.

{¶35} A second forensic scientist at BCI conducted further testing on the vaginal

and anal samples for the presence of male DNA. She found a single male DNA profile

on both samples consistent with Mr. Stevens.

Indictment and Pretrial Matters

{¶36} The Portage County Grand Jury indicted Mr. Stevens on the following 13

felony counts: six counts of rape, first-degree felonies, in violation of R.C. 2907.02(A)(2)

(counts 1 through 6); three counts of kidnapping, first-degree felonies, in violation of R.C.

2905.01 (counts 7 through 9); aggravated burglary, a first-degree felony, in violation of

R.C. 2911.11 (count 10); aggravated robbery, a first-degree felony, in violation of R.C.

2911.01 (count 11); felonious assault, a second-degree felony, in violation of R.C.

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2903.11 (count 12); and tampering with evidence, a third-degree felony, in violation of

R.C. 2921.12 (count 13).

{¶37} Mr. Stevens appeared at his arraignment with counsel and pleaded not

guilty to the charges. The trial court appointed the public defender to represent Mr.

Stevens.

{¶38} Shortly thereafter, the trial court appointed Attorney Job Perry to represent

Mr. Stevens and granted the public defender’s motion to withdraw.

{¶39} Following a bond hearing, the trial court issued a judgment entry granting

Mr. Stevens’ pro se motion to remove counsel and represent himself and appointed

Attorney Anthony Koukoutas as advisory counsel.

{¶40} Following a status hearing, the trial court issued a judgment entry appointing

Attorney Koukoutas as counsel of record and scheduling the matter for a jury trial. The

trial court also subsequently appointed co-counsel for Mr. Stevens.

{¶41} The parties appeared for a motion hearing held on the Friday before the

beginning of the jury trial on Tuesday. The hearing transcript reflects that Mr. Stevens

attempted to discharge Attorney Koukoutas as his counsel. He became belligerent and

disruptive and was removed from the courtroom. Attorney Koukoutas stated for the

record the efforts he had made on Mr. Stevens’ behalf, including filing several pretrial

motions and meeting with Mr. Stevens on numerous occasions. The trial court denied

Mr. Stevens’ request to remove Attorney Koukoutas as counsel.

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 Trial

{¶42} The matter proceeded to trial on the scheduled date. Mr. Stevens again

attempted to discharge Attorney Koukoutas as counsel, which the trial court denied. Mr.

Stevens again became belligerent and disruptive and was removed from the courtroom.

{¶43} Following voir dire and the selection of a jury, Mr. Stevens waived his right

to a trial by jury, and the matter proceeded to a bench trial.

{¶44} The state presented testimony from the 911 dispatcher, the treating

hospital’s records custodian, the investigating police officers, Nurse Shields, Mr. Stevens’

father, the forensic scientists from BCI, and Ms. Doe. The state also submitted numerous

exhibits, including photographs of Ms. Doe’s injuries.

{¶45} Following the state’s presentation of its case-in-chief, the defense moved

for acquittal pursuant to Crim.R. 29, which the trial court denied.

{¶46} Mr. Stevens testified in his own defense. After describing his various

activities that evening and early morning, he testified that he had planned to go to his

father’s house to see his kids. However, he “had a thought to pop in and see [his] friend’s

mom,” who was Ms. Doe.

{¶47} According to Mr. Stevens, he knocked on Ms. Doe’s front door, and she

answered. They eventually went upstairs, and she consensually performed fellatio on

him. At one point, Ms. Doe asked him what he and her son do when they are sitting in

the garage or the driveway. He told her that they smoke pot and occasionally use

cocaine. Ms. Doe became verbally aggressive, told him to leave, and stated she was

going to tell the police that he raped her. He replied that he would tell the police that her

son deals drugs out of her home. He grabbed the sheet because he had ejaculated on

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it, and she grabbed his t-shirt and ripped it. He exited the residence out the front door,

locked it behind him, and went to his father’s house. He denied grabbing or assaulting

Ms. Doe. At his father’s house, he attempted to burn the sheet and the t-shirt with a

lighter but eventually put them in the washing machine.

{¶48} On cross-examination, Mr. Stevens admitted to engaging in consensual

fellatio and cunnilingus but denied any other sexual activity. He also denied that the

officers removed anything from his hands or that the earbuds were his.

{¶49} Following Mr. Stevens’ testimony, the defense rested and renewed its

motion for acquittal pursuant to Crim.R. 29, which the trial court denied.

{¶50} Following closing arguments, the trial court indicated it would deliberate on

the evidence and scheduled a subsequent hearing for the announcement of its verdict.

Verdict and Sentencing

{¶51} At the subsequent hearing, the trial court found Mr. Stevens guilty of all 13

counts. The trial court made further findings with respect to the three kidnapping offenses

(counts 7 through 9) that the victim was not released in a safe place unharmed.

{¶52} The matter proceeded immediately to sentencing. No presentence

investigation was conducted. The trial court determined that the three kidnapping

offenses (counts 7 through 9) merged for purposes of sentencing, and the state elected

to proceed on count 9.

{¶53} The trial court heard argument from counsel regarding the merger of the

remaining counts. The state requested that the trial court treat the remaining counts as

multiple offenses and impose separate sentences. The defense requested that the trial

court merge the six rape offenses with each other and merge the kidnapping offense with

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the rape offenses. The defense stated that it believed the other charges involved one

course of conduct but that it would let the court decide whether merger was appropriate.

{¶54} The trial court determined that the remaining counts did not merge and

imposed the following sentences: 10 to 15 years in prison for each of the rape offenses

(counts 1 through 6) and for each of the offenses of kidnapping (count 9), aggravated

burglary (count 10), and aggravated robbery (count 11); 8 to 12 years in prison for

felonious assault (count 12); and 36 months in prison for tampering with evidence (count

13). The trial court ordered the sentences in counts 1 through 6 and 10 to run consecutive

to each other and the sentences in counts 9, 11, 12, and 13 to run concurrent, for an

aggregate prison sentence of 70 to 75 years.

{¶55} Mr. Stevens appealed and presents the following five assignments of error

for our review:

{¶56} “[1.] The trial court erred as a matter of law in imposing separate sentences

for the allied offenses in violation of the Double Jeopardy Clause of the 5th Amendment

to the U.S. Constitution and Article I, Sections [sic] 10 of the Ohio Constitution.

{¶57} “[2.] The trial court erred as a matter of law in imposing consecutive

sentences upon appellant in violation of the Double Jeopardy Clause of the 5th

Amendment to the U.S. Constitution and Article I, Sections [sic] 10 of the Ohio

Constitution.

{¶58} “[3.] Appellant’s convictions are against the manifest weight of the evidence

possession [sic] in violation of the Due Process Clause of the 14th Amendment to the

U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio Constitution.

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 {¶59} “[4.] The trial court erred as a matter of law in denying Stevens’ Crim.R. 29

motion because the state failed to establish on the record sufficient evidence to support

the charges levied against Bussle [sic] in violation of the Due Process Clause of the 14th

Amendment to the U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio

Constitution.

{¶60} “[5.] The trial court erred as a matter of law in denying Stevens’ motion for

new counsel prior to trial in violation of his right to effective assistance of counsel

guaranteed under the Sixth Amendment to the U.S. Constitution and Article I, Sections 1,

10 & 16 of the Ohio Constitution.”

{¶61} We review Mr. Stevens’ assignments of error out of order for ease of

discussion.

Motion for New Counsel

{¶62} In his fifth assignment of error, Mr. Stevens contends that the trial court

erred by denying his motion for new counsel.

{¶63} A trial court’s decision denying a request for new counsel is reviewed under

an abuse-of-discretion standard. State v. Cowans, 87 Ohio St.3d 68, 73, 717 N.E.2d 298

(1999); State v. Burrell, 11th Dist. Lake No. 2013-L-024, 2014-Ohio-1356, ¶ 21. An abuse

of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision-

making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting

Black’s Law Dictionary 11 (8th Ed.Rev.2004).

{¶64} The Supreme Court of Ohio has determined that an indigent criminal

defendant does not have a constitutional right to choose his court-appointed attorney;

rather, he is only entitled to competent legal representation. See State v. Murphy, 91

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Ohio St.3d 516, 523 (2001); Cowans at 72. “To discharge a court-appointed attorney, the

defendant must show a breakdown in the attorney-client relationship of such magnitude

as to jeopardize the defendant’s right to effective assistance of counsel.” State v.

Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus.

{¶65} The existence of hostility or a personal conflict between the attorney and

the defendant does not constitute a total breakdown so long as it does not inhibit the

attorney from both preparing and presenting a competent defense. State v. Long, 2014-

Ohio-4416, 19 N.E.3d 981, ¶ 35 (11th Dist.). In addition, disagreements between the

attorney and client over trial tactics or approach do not warrant a substitution of counsel.

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 150.

{¶66} Mr. Stevens attempted to discharge his appointed counsel on two separate

occasions: the first at a motion hearing held on the Friday before the beginning of the

jury trial on Tuesday, and the second on the day of trial. According to Mr. Stevens, the

“dialogue” between Mr. Stevens and the trial court demonstrates that the relationship

between him and counsel “was irreparable and a complete breakdown.” We disagree.

{¶67} At the motion hearing, Mr. Stevens alleged that his counsel was “inefficient”

and “ineffective” because counsel had not reviewed the evidence with him or filed the

pretrial motions he requested. Mr. Stevens became disruptive and belligerent and was

removed from the courtroom. The trial court had counsel state for the record the

numerous pretrial motions he had filed on Mr. Stevens’ behalf and the time he had spent

reviewing discovery material with Mr. Stevens and declined to remove him as counsel.

{¶68} On the day of trial, Mr. Stevens alleged that his counsel did not have his

clothes for trial and had not shown him all of the evidence. He further noted that “only a

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few of [counsel’s] motions have been granted.” The trial court referenced counsel’s

efforts on his behalf and determined that Mr. Stevens’ request was a “delay tactic.” Mr.

Stevens again became disruptive and belligerent and was removed from the courtroom.

{¶69} Thus, the record does not demonstrate a total breakdown in the attorney-

client relationship between Mr. Stevens and his counsel. Rather, it appears Mr. Stevens

raised allegations regarding counsel’s competence, which the trial court found lacked any

factual basis. Further, while Mr. Stevens’ courtroom outbursts exhibited great hostility, it

appeared to be directed toward the trial court and its rulings. Mr. Stevens does not assert

that his counsel was prevented from preparing and presenting a competent defense at

trial.

{¶70} Accordingly, the trial court did not abuse its discretion by denying Mr.

Stevens’ requests to discharge his appointed counsel.

{¶71} Mr. Stevens’ fifth assignment of error is without merit.

Sufficiency of the Evidence

{¶72} In his fourth assignment of error, Mr. Stevens contends that the trial court

erred by denying his Crim.R. 29 motion for acquittal because the state failed to produce

sufficient evidence to support his convictions for felonious assault, aggravated robbery,

and aggravated burglary.

Standard of Review

{¶73} Crim.R. 29(A) provides that “[t]he court on motion of a defendant or on its

own motion, after the evidence on either side is closed, shall order the entry of a judgment

of acquittal of one or more offenses charged in the indictment, information, or complaint,

if the evidence is insufficient to sustain a conviction of such offense or offenses.” Thus,

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when a defendant makes a Crim.R. 29 motion, he or she is challenging the sufficiency of

the evidence introduced by the state. State v. Patrick, 11th Dist. Trumbull Nos. 2003-T-

0166 and 2003-T-0167, 2004-Ohio-6688, ¶ 18.

{¶74} “‘“[S]ufficiency” is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th

Ed.1990). “In essence, sufficiency is a test of adequacy.” Id.

{¶75} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. “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.”

Id.

{¶76} When evaluating the adequacy of the evidence, we do not consider its

credibility or effect in inducing belief. Thompkins at 386-387. Rather, we decide whether,

if believed, the evidence can sustain the verdict as a matter of law. Id. This naturally

entails a review of the elements of the charged offense and a review of the state’s

evidence. State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶

13.

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 {¶77} Mr. Stevens contends that the state failed to present “any evidence” of

“serious physical harm” to establish the offenses of aggravated burglary, aggravated

robbery, and felonious assault. He further contends that the state failed to present

sufficient evidence of aggravated robbery because any harm to Ms. Doe occurred prior

to Mr. Stevens’ alleged theft of the bed sheet. We consider each of these three offenses

in turn.

Aggravated Burglary

{¶78} Mr. Stevens was convicted of aggravated burglary in violation of R.C.

2911.11(A)(1), which provides, in relevant part, that “[n]o person, by force, stealth, or

deception, shall trespass in an occupied structure or in a separately secured or separately

occupied portion of an occupied structure, when another person other than an accomplice

of the offender is present, with purpose to commit in the structure or in the separately

secured or separately occupied portion of the structure any criminal offense, if * * * [t]he

offender, inflicts, or attempts or threatens to inflict physical harm on another * * *.”

(Emphasis added.)

{¶79} Thus, the aggravated burglary statute requires “physical harm,” not “serious

physical harm.” R.C. 2901.01(A)(4) defines “physical harm to persons” as “any injury,

illness, or other physiological impairment, regardless of its gravity or duration.” R.C.

2901.01(A)(4). Mr. Stevens does not dispute that the evidence establishes that he

inflicted, attempted to inflict, and/or threatened to inflict “physical harm” on Ms. Doe.

Therefore, this portion of Mr. Stevens’ argument is without merit.

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 Aggravated Robbery

{¶80} Mr. Stevens was convicted of aggravated robbery in violation of R.C.

2911.01(A)(3), which provides, in relevant part, that “[n]o person, in attempting or

committing a theft offense, as defined in section 2913.01 of the Revised Code, or in

fleeing immediately after the attempt or offense, shall * * * [i]nflict, or attempt to inflict,

serious physical harm on another.” (Emphasis added.)

{¶81} The Supreme Court of Ohio has held that the infliction or attempted infliction

of serious physical harm under R.C. 2911.01(A)(3) does not require proof of a mental

state. State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 53.

However, the indictment alleged that Mr. Stevens acted recklessly. “A person acts

recklessly when, with heedless indifference to the consequences, the person disregards

a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain

result or is likely to be of a certain nature. A person is reckless with respect to

circumstances when, with heedless indifference to the consequences, the person

disregards a substantial and unjustifiable risk that such circumstances are likely to exist.”

R.C. 2901.22(C).

{¶82} In addition, R.C. 2901.01(A)(5) defines “serious physical harm to persons”

as any of the following:

{¶83} “(a) Any mental illness or condition of such gravity as would normally require

hospitalization or prolonged psychiatric treatment;

{¶84} “(b) Any physical harm that carries a substantial risk of death;

{¶85} “(c) Any physical harm that involves some permanent incapacity, whether

partial or total, or that involves some temporary, substantial incapacity;

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 {¶86} “(d) Any physical harm that involves some permanent disfigurement or that

involves some temporary, serious disfigurement;

{¶87} “(e) Any physical harm that involves acute pain of such duration as to result

in substantial suffering or that involves any degree of prolonged or intractable pain.”

{¶88} In this case, the alleged “theft offense” for purposes of the aggravated

robbery statute was Mr. Stevens’ taking of Ms. Doe’s bed sheet. Specifically, Ms. Doe

testified that shortly before taking the bed sheet, Mr. Stevens pushed her pillow over her

face. She thought he was trying to kill her, and she begged him not to do so. Mr. Stevens

told her not to move and he would not kill her, and she complied. The pillow remained on

her face, but Mr. Stevens was not holding it. He then threw the comforter on top of her,

got dressed, yanked her sheet off the bed, and left the residence.

{¶89} Mr. Stevens’ arguments are premised on a lack of evidence establishing

actual “serious physical harm” to Ms. Doe. According to the Supreme Court of Ohio,

however, “the facts need only demonstrate an [a]ttempt to inflict any one of the results

described in” R.C. 2901.01(A)(5)(a) through (e). (Emphasis added.) State v. Eley, 56

Ohio St.2d 169, 172, 383 N.E.2d 132 (1978). Courts have determined that suffocation

constitutes “serious physical harm.” See State v. O’Neal, 5th Dist. Muskingum No. 08-

CA-42, 2009-Ohio-5290, ¶ 36 (“We find that holding a pillow over a victim’s face in an

attempt to suffocate him amounts to an attempt to cause serious physical harm”).

{¶90} Further, in interpreting the similar statutory language in R.C. 2911.02, i.e.,

the robbery statute, the Supreme Court of Ohio held that “[t]he statute plainly does not

require that ‘the force attendant to the theft offense be inflicted in furtherance of a purpose

to deprive another of property.’” State v. Thomas, 106 Ohio St.3d 133, 2005-Ohio-4106,

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832 N.E.2d 1190, ¶ 13, quoting the first certified question. Thus, based on Thomas, the

aggravated robbery statute does not require evidence that Mr. Stevens attempted to inflict

serious physical harm in furtherance of the theft offense. Rather, the evidence must

establish that he attempted to inflict serious physical harm during the commission of the

theft offense.

{¶91} Viewing Ms. Doe’s testimony in a light most favorable to the prosecution,

the trier of fact could have reasonably determined that Mr. Stevens recklessly attempted

to inflict “serious physical harm” on Ms. Doe by pushing the pillow on her face and that

he did so as part of his commission of the theft offense.

Felonious Assault

{¶92} Mr. Stevens was convicted of felonious assault in violation of R.C.

2903.11(A)(1), which provides, in relevant part, that “[n]o person shall knowingly * * *

[c]ause serious physical harm to another * * *.” (Emphasis added.)

{¶93} Mr. Stevens argues that while the allegations in this case are serious, the

“vast majority” of Ms. Doe’s injuries involved “bruising and abrasions.”

{¶94} However, the medical evidence documented petechiae on Ms. Doe’s eye,

injuries and discoloration to her face, and pain to her throat, jaw, and neck. Nurse Shields

testified that these injuries were consistent with Ms. Doe’s report of being strangled.

Courts have found sufficient evidence of “serious physical harm” under R.C.

2901.01(A)(5) where the victim’s injuries were consistent with strangulation. See, e.g.,

State v. Stillman, 5th Dist. Delaware No. 04CAA07052, 2004-Ohio-6974, ¶ 22-28; State

v. Smith, 9th Dist. Summit Nos. 23468 and 23464, 2007-Ohio-5524, ¶ 26-27; State v.

20

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Simmons, 8th Dist. Cuyahoga No. 96208, 2011-Ohio-6074, ¶ 34-39; State v. McCoy, 3d

Dist. Marion No. 9-18-23, 2020-Ohio-4511, ¶ 78-81.

{¶95} In addition, Mr. Stevens’ argument does not acknowledge Ms. Doe’s

following trial testimony, which the state elicited during her direct examination:

{¶96} “[THE STATE]: In terms of your private areas, your vaginal area, your pubic

region, your anus, all of those areas, what if any pain or discomfort or injury do you recall

in the days following that assault, with specific regard to those areas?

{¶97} “[MS. DOE]: I had suffered some anal tearing.

{¶98} “[THE STATE]: And I don't mean to belittle this or -- was that painful?

{¶99} “[MS. DOE]: Yes.”

{¶100} When viewing this testimony in a light most favorable to the prosecution,

the trier of fact could have reasonably determined that Mr. Stevens caused “physical

harm” to Ms. Doe that involved “acute pain of such duration as to result in substantial

suffering” pursuant to R.C. 2901.01(A)(5)(e); “any degree of prolonged or intractable pain”

pursuant to R.C. 2901.01(A)(5)(e); and/or “some temporary, serious disfigurement”

pursuant to R.C. 2901.01(A)(5)(d).

{¶101} In sum, the state presented sufficient evidence, if believed, to prove the

offenses of aggravated burglary, and aggravated robbery, and felonious assault beyond

a reasonable doubt.

{¶102} Mr. Stevens’ fourth assignment of error is without merit.

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 Manifest Weight of the Evidence

{¶103} In his third assignment of error, Mr. Stevens contends that his convictions

for aggravated burglary, aggravated robbery, and felonious assault are against the

manifest weight of the evidence.

Standard of Review

{¶104} “[W]eight of the evidence addresses the evidence’s effect of inducing

belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

“In other words, a reviewing court asks whose evidence is more persuasive—the state’s

or the defendant’s?” Id. “‘The court, reviewing the entire record, weighs the evidence

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

whether in resolving conflicts in the evidence, the jury clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new

trial ordered.’” Thompkins, supra, at 387, quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983).

{¶105} “‘When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting

testimony.’” Id., quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d

652 (1982). “‘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.’” Id.,

quoting Martin at 175.

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 Serious Physical Harm

{¶106} Mr. Stevens first argues that the state failed to prove the element of “serious

physical harm” for aggravated burglary, aggravated robbery, and felonious assault.

However, Mr. Stevens’ argument is based on the sufficiency of the evidence rather than

its persuasiveness.

{¶107} As demonstrated above, the state was not required to prove “serious

physical harm” for the aggravated burglary offense, only Mr. Stevens’ infliction, attempt

to inflict, or threat to inflict “physical harm” on Ms. Doe. The evidence establishes that

Ms. Doe suffered at least “physical harm” and threats of “physical harm,” and Mr. Stevens

does not contend otherwise.

{¶108} In addition, the state was not required to prove actual “serious physical

harm” for the aggravated robbery offense, only that Mr. Stevens attempted to inflict

“serious physical harm” during the commission of a theft offense. Mr. Stevens does not

acknowledge, much less dispute, Ms. Doe’s testimony that he pushed a pillow over her

face just prior to stealing her sheet.

{¶109} With respect to felonious assault, physical injuries indicative of strangulation

constitute sufficient evidence of “serious physical harm.” Further, Mr. Stevens does not

acknowledge, much less dispute, Ms. Doe’s testimony that she suffered anal tearing from

which she experienced pain in the days following the alleged offenses.

{¶110} Accordingly, Mr. Stevens has not demonstrated that the trier of fact clearly

lost its way and created a manifest miscarriage of justice with respect to this issue.

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 Witness Credibility

{¶111} Mr. Stevens next points to his own testimony at trial where he denied the

allegations against him; claimed that any sexual conduct was consensual; and posited

that Ms. Doe’s claims were retaliatory for him telling her that her son was dealing and

used drugs.

{¶112} Our ability to weigh the evidence and consider the credibility of witnesses is

limited, since we must be mindful that the trier of fact was in the best position to evaluate

the demeanor and credibility of witnesses and determine the weight to be accorded to the

evidence. State v. Galloway, 10th Dist. Franklin No. 03AP-407, 2004-Ohio-557, ¶ 29;

see State v. DeHaas, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus.

{¶113} However, Ms. Doe’s testimony is wholly consistent with the evidence

presented at trial, including that she never identified Mr. Stevens as her attacker; her

documented physical injuries; the damage to the doors in her residence; the earbuds

found in Mr. Stevens’ hands; the portions of the earbuds found in Ms. Doe’s bedroom; the

DNA testing results; and Mr. Stevens’ alleged jailhouse confession to his father. By

contrast, Mr. Stevens’ account disregards or contradicts much of this evidence.

{¶114} Mr. Stevens contends that his version of events is bolstered by Officer

Carnahan’s testimony on cross-examination, where he stated that Ms. Doe’s house was

“put together and there was [sic] no obvious signs of a struggle.”

{¶115} During redirect examination, however, Officer Carnahan reviewed the

photos taken of Ms. Doe’s bedroom and testified that the comforter was “balled up and

thrown on” the bed. Further, Ms. Doe did not allege in her testimony that Mr. Stevens

24

Case No. 2020-P-0043
displaced or destroyed personal property during the alleged attack. Thus, Officer

Carnahan’s testimony was entirely consistent with Ms. Doe’s testimony, where she stated

that Mr. Stevens threw the comforter over top of her prior to removing and stealing her

bedsheet.

{¶116} Accordingly, Mr. Stevens has not demonstrated that the trier of fact clearly

lost its way or created a manifest miscarriage of justice in assessing the credibility of the

witnesses.

{¶117} Mr. Stevens’ third assignment of error is without merit.

Merger

{¶118} In his first assignment of error, Mr. Stevens contends that the trial court

erred as a matter of law in imposing separate sentences for allied offenses of similar

import.

Standard of Review

{¶119} We review de novo a trial court’s determination regarding merger. State v.

Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.

R.C. 2941.25

{¶120} The constitutional prohibition against double jeopardy generally protects a

criminal defendant from successive prosecutions and multiple punishments for the same

crime. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 7. In

furtherance of this constitutional principle, R.C. 2941.25 provides as follows:

{¶121} “(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.

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 {¶122} “(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.”

{¶123} In its most-recent extended analysis of R.C. 2941.25, the Supreme Court of

Ohio held as follows:

{¶124} “1. In determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must evaluate three separate factors–the

conduct, the animus, and the import.

{¶125} “2. Two or more offenses of dissimilar import exist within the meaning of

R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate

victims or if the harm that results from each offense is separate and identifiable.

{¶126} “3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple

offenses may be convicted of all the offenses if any one of the following is true: (1) the

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses

were committed separately, or (3) the conduct shows that the offenses were committed

with separate animus.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892,

paragraphs one through three of the syllabus.

{¶127} The Ruff court further summarized its holding in the following manner:

{¶128} “As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must ask three

questions when the defendant’s conduct supports multiple offenses: (1) Were the

26

Case No. 2020-P-0043
offenses dissimilar in import or significance? (2) Were they committed separately? and

(3) Were they committed with separate animus or motivation? An affirmative answer to

any of the above will permit separate convictions. The conduct, the animus, and the

import must all be considered.” Id. at ¶ 31.

Merger of Kidnapping and Rape

{¶129} Mr. Stevens first contends that the kidnapping offense should have merged

with the rape offenses.

{¶130} Mr. Stevens was convicted of six counts of rape in violation of R.C.

2907.02(A)(2), which provides that “[n]o person shall engage in sexual conduct with

another when the offender purposely compels the other person to submit by force or

threat of force.” (Emphasis added.) These convictions involved six separate acts of

forcible “sexual conduct” pursuant to R.C. 2907.01(A): vaginal intercourse (count 1); anal

intercourse (count 2); insertion of finger in vaginal opening (count 3); insertion of finger in

anal opening; (count 4); and fellatio (counts 5 and 6).

{¶131} Mr. Stevens was also convicted of three counts of kidnapping (counts 7

through 9). The trial court determined that the three kidnapping offenses merged with

each other for purposes of sentencing, and the state elected to proceed on count 9.

{¶132} Under count 9, Mr. Stevens was convicted of kidnapping in violation of R.C.

2905.01(A)(4), which states, in relevant part, that “[n]o person, by force, threat, or

deception, * * * shall remove another person from the place where the other person is

found or restrain the liberty of the other person, for any of the following purposes: * * *

[t]o engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the

victim against the victim’s will * * *.” (Emphasis added.)

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 {¶133} At sentencing, the trial court found that the kidnapping offense (count 9)

involved Mr. Stevens forcefully keeping Ms. Doe in the room when she attempted to

escape.

{¶134} The Supreme Court of Ohio has stated that “implicit within every forcible

rape * * * is a kidnapping” because the victim’s liberty is restrained during the act of

forcible rape. State v. Logan, 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979). However,

not every kidnapping offense that accompanies a rape offense is implicit therein. State

v. Roberts, 9th Dist. Medina No. 19CA0004-M, 2019-Ohio-4393, ¶ 11.

{¶135} Mr. Stevens relies on the Supreme Court of Ohio’s decision in Logan, where

the court provided guidelines for determining “whether kidnapping and another offense of

the same or similar kind are committed with a separate animus as to each pursuant to

R.C. 2941.25(B).” (Emphasis added.) Id. at syllabus. The term “animus,” requires a

court “to examine the defendant’s mental state” and means “purpose or, more properly,

immediate motive.” Logan at 131.

{¶136} The Logan court held that “where the restraint or movement of the victim is

merely incidental to a separate underlying crime, there exists no separate animus

sufficient to sustain separate convictions.” (Emphasis added.) Id. at syllabus. However,

a separate animus for kidnapping exists where (1) “the restraint is prolonged, the

confinement is secretive, or the movement is substantial so as to demonstrate a

significance independent of the other offense,” or (2) “the asportation or restraint of the

victim subjects the victim to a substantial increase in risk of harm separate and apart from

that involved in the underlying crime.” Id.

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 {¶137} Although Logan predates Ruff, Ohio courts continue to apply the Logan

guidelines in relation to the third prong of the Ruff test. See State v. Grate, Slip Opinion

No. 2020-Ohio-5584, ¶ 108.

{¶138} It appears that Mr. Stevens necessarily committed the kidnapping offense

and the rape offenses with the same animus, since kidnapping in violation of R.C.

2905.01(A)(4) requires a sexual purpose. However, the evidence indicates that Mr.

Stevens committed the offenses separately pursuant the second prong of the Ruff test.

{¶139} Prior to the first forcible rape, Ms. Doe jumped out of bed, pushed Mr.

Stevens, and tried to run for the door. Mr. Stevens grabbed Ms. Doe, and they began

struggling. Mr. Stevens then put her in a choke hold, got her on the ground, and smashed

her head onto the carpet. He then pinned her down and engaged in the first act of sexual

conduct.

{¶140} When Mr. Stevens reach for lotion on the dresser, Ms. Doe attempted to

stand up and run. Mr. Stevens grabbed her by the back of the hair and pulled her back

onto the floor. He got on top of her and engaged in the second, third, and fourth acts of

sexual conduct. He subsequently pinned her down on the bed and engaged in the fifth

and sixth acts of sexual conduct.

{¶141} Thus, Mr. Stevens committed acts constituting kidnapping separately from

the acts constituting forcible rape. See State v. Jones, 2017-Ohio-1168, 87 N.E.3d 900,

¶ 36 (10th Dist.) (defendant’s blocking of the victim’s attempt to leave a basement

constituted the separate crime of kidnapping before the rape occurred); State v. Lovato,

2d Dist. Montgomery No. 25683, 2014-Ohio-2311, ¶ 19 (defendant’s recapture of the

victim after an attempted escape was not merely incidental to the subsequent rape).

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 {¶142} There was also separate and identifiable harm under the first prong of the

Ruff test. Ms. Doe suffered bruises and abrasions as a result of Mr. Stevens’ physical

restraint. Courts have held that similar uses of force constitute harm separate from the

force involved in raping a victim. See, e.g., Jones at ¶ 36 (victim suffered blows to the

head rendering her unconscious); State v. Worth, 10th Dist. Franklin No. 10AP-1125,

2012-Ohio-666, ¶ 81 (victim knocked to the floor, held down, and repeatedly struck in the

face); State v. Menton, 7th Dist. Mahoning No. 07 MA 70, 2009-Ohio-4640, ¶ 132 (victim

restrained by hitting, biting, choking, and suffocating).

{¶143} Accordingly, the kidnapping offense does not merge with the rape offenses.

Merger of Aggravated Burglary and Rape

{¶144} Second, Mr. Stevens contends that the aggravated burglary offense should

have merged with the rape offenses.

{¶145} As indicated, aggravated burglary requires (1) trespass in an occupied

structure by force, stealth, or deception; (2) purpose to commit any criminal offense; and

(3) the infliction, attempted infliction, or threatened infliction of physical harm. See R.C.

2911.11(A)(1). Mr. Stevens’ arguments are based on the third element.

{¶146} Mr. Stevens contends that the trial court “specifically found when rendering

its verdict that the harm that resulted from the rape was the same harm that escalated the

burglary to aggravated burglary.” The transcript pages cited by Mr. Stevens do not

contain any such finding.

{¶147} Mr. Stevens also contends that the facts of this case are akin to Ruff, supra,

where, following remand, the First District determined that the harm resulting from the

defendant’s aggravated burglary and rape offenses was not separate and identifiable.

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See State v. Ruff, 1st Dist. Hamilton Nos. C-120533 and C-120534, 2015-Ohio-3367, ¶

23 (“Ruff II”).

{¶148} We find Ruff to be factually distinguishable. In that case, the state relied on

the defendant’s rape offenses, i.e., the actual infliction of physical harm, to establish the

third element of the aggravated burglaries. See Ruff II at ¶ 21. In other words, the rape

offenses constituted the aggravating elements to transform burglary into aggravated

burglary. See id. at ¶ 14, ¶ 22. In addition, the state erroneously contended during the

sentencing hearing that the aggravated burglaries were committed and completed upon

the defendant’s entrance into the victim’s house. See id. at ¶ 14.

{¶149} Here, in finding Mr. Stevens guilty of aggravated burglary, the trial court

found that he “inflicted or attempted to inflict or threatened to inflict physical harm” on Ms.

Doe. The evidence indicates that Mr. Stevens pried open Ms. Doe’s mouth and forced

her to perform fellatio, thereby committing forcible rape. He also told her that he would

stab her if she bit him, which constitutes a threat to inflict physical harm and satisfies the

third element of aggravated burglary. Thus, Mr. Stevens committed the acts constituting

aggravated burglary separately from the acts constituting forcible rape. See State v.

Bryant, 10th Dist. Franklin No. 14AP-333, 2014-Ohio-5306, ¶ 32 (finding a defendant’s

threats to kill the victim to be separate acts from forcible fellatio).

{¶150} Accordingly, the aggravated burglary offense does not merge with the rape

offenses.

Merger of Aggravated Robbery and Rape

{¶151} Third, Mr. Stevens contends that the aggravated robbery offense should

have merged with the rape offenses.

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 {¶152} As indicated, aggravated robbery requires (1) infliction or attempted

infliction of serious physical harm (2) in attempting or committing a theft offense or in

fleeing immediately after the attempt or offense. See R.C. 2911.01(A)(3).

{¶153} Mr. Stevens contends that the harm from the aggravated robbery was not

separate and identifiable from the rape. As demonstrated above, however, the evidence

supports a finding that Mr. Stevens recklessly attempted to inflict “serious physical harm”

on Ms. Doe by trying to suffocate her during the commission of the theft offense. This act

was separate from Mr. Stevens’ acts of forcible rape and resulted in a separate risk of

harm. In addition, Mr. Stevens necessarily had a separate animus, as his purpose

pursuant to the aggravated robbery statute was to commit a theft offense, not to engage

in sexual activity.

{¶154} Accordingly, aggravated robbery offense does not merge with the rape

offenses.

Merger of Felonious Assault, Kidnapping, and Rape

{¶155} Finally, Mr. Stevens contends that the felonious assault offense should have

merged with the kidnapping offense and with the rape offenses.

{¶156} As indicated, felonious assault involves knowingly causing serious physical

harm. See R.C. 2903.11(A)(1).

{¶157} Mr. Stevens contends that the felonious assault was “incidental” to these

offenses because it was “conducted at the same time” and “with the same animus” and

resulted in the “same harm.” While it appears that Mr. Stevens acted with the same

animus, which was to engage in sexual activity with Ms. Doe, we disagree that the

felonious assault was conducted at the same time and resulted in the same harm.

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 {¶158} The trial court found Mr. Stevens guilty of felonious assault but did not

specify the qualifying acts or the “serious physical harm.” The record supports findings

that Mr. Stevens knowingly caused “serious physical harm” to Ms. Doe through

strangulation, which resulted in petechiae on Ms. Doe’s eye and other injuries, and/or

through penetration of her anal opening, which resulted in painful anal tearing.

{¶159} With respect to kidnapping, the trial court found that Mr. Stevens’ offense

involved forcefully keeping Ms. Doe in the room when she attempted to escape. Thus,

Mr. Stevens’ restraint of Ms. Doe that formed the basis of the kidnapping offense

encompassed separate acts from his strangling and anal penetration of Ms. Doe. See

State v. Harmon, 9th Dist. Summit No. 26502, 2013-Ohio-1769, ¶ 23 (finding separate

acts where the restraint was not limited to strangling the victim).

{¶160} With respect to rape, Mr. Stevens’ convictions related to six separate acts

of forcible “sexual conduct,” including two instances of anal penetration. While the

strangulation was committed for the purpose of facilitating the first forcible rape, it

occurred prior to and separately from it. See State v. Washington, 6th Dist. Lucas No. L-

19-1190, 2021-Ohio-760, ¶ 32 (finding the defendant’s act of strangulation to be separate

from rape); Lovato, supra, at ¶ 22 (finding defendant’s act of punching the victim to be

separate from rape).

{¶161} In addition, the strangulation resulted in “serious physical harm” separate

and identifiable from that caused by the forcible rapes, including from the two instances

of anal penetration. See State v. Mpanurwa, 2017-Ohio-8911, 102 N.E.3d 66, ¶ 19 (2d

Dist.) (finding a broken arm/wrist to be separate and distinct harm from the tears,

33

Case No. 2020-P-0043
lacerations and bruising to the vaginal area caused by the act of intercourse underlying

the rape offense).

{¶162} Accordingly, the felonious assault offense does not merge with the

kidnapping offense or with the rape offenses.

{¶163} Mr. Stevens’ first assignment of error is without merit.

Consecutive Sentences

{¶164} Finally, in his second assignment of error, Mr. Stevens contends that the

trial court erred by imposing consecutive sentences.

Standard of Review

{¶165} The standard of review for the imposition of consecutive sentences is

governed by the clearly and convincingly standard set forth in R.C. 2953.08(G)(2). See

State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 16.

Specifically, an appellate court “may increase, reduce or otherwise modify a sentence * *

* or may vacate the sentence and remand the matter to the sentencing court for

resentencing * * * if it clearly and convincingly finds either * * * [t]hat the record does not

support the sentencing court’s findings under * * * (C)(4) of section 2929.14” or “[t]hat the

sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b).

Statutory Findings

{¶166} Ohio law imposes a statutory presumption in favor of concurrent sentences.

See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16; R.C.

2929.41(A) (“Except as provided in * * * division (C) of section 2929.14, * * * a prison term,

* * * or sentence of imprisonment shall be served concurrently with any other prison term,

* * * or sentence of imprisonment imposed by a court of this state * * *”).

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 {¶167} Pursuant to R.C. 2929.14(C)(4), a trial court may order multiple prison terms

for convictions of multiple offenses to be served consecutively if the court finds that

“consecutive service is necessary to protect the public from future crime or to punish the

offender and that consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public * * *.”

{¶168} The trial court must also find that one of the following statutory factors

applies:

{¶169} “(a) The offender committed one or more of the multiples offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

{¶170} “(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender’s conduct.

{¶171} “(c) The offender’s history of criminal conduct demonstrates that

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

offender.” R.C. 2929.14(C)(4)(a)-(c).

{¶172} The Supreme Court of Ohio has held that “[i]n order to impose consecutive

terms of imprisonment, a trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

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entry * * *.” Bonnell at ¶ 37. Otherwise, the imposition of consecutive sentences is

contrary to law. See id.

{¶173} The trial court is not required “to give a talismanic incantation of the words

of the statute, provided that the necessary findings can be found in the record and are

incorporated into the sentencing entry.” Id. In addition, “as long as 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.” Id. at ¶ 29.

Analysis

{¶174} The record indicates that the trial court made the required statutory findings

under R.C. 2929.14(C)(4) and additional statutory findings under 2929.14(C)(4)(a) and

(b) at the sentencing entry and incorporated those findings into the sentencing entry.

{¶175} Mr. Stevens acknowledges that the trial court recited the required statutory

language but contends that “the imposition of consecutive sentences is not supported by

clear and convincing evidence in the record.”

{¶176} This is not our required standard of review. As the Eighth District has aptly

noted, the “clear and convincing standard” used in R.C. 2953.08(G)(2) is written in the

negative. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.). It does not

say that the trial court must have clear and convincing evidence to support its findings.

Id. Instead, it is the court of appeals that must clearly and convincingly find that the record

does not support the trial court’s findings. Id. In other words, the restriction is on the

appellate court, not the trial court. Id.

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 {¶177} Mr. Stevens contends that the trial court should have also considered other

factors. He states that he had no prior serious offenses; the trial court had limited

knowledge of his criminal history; and there was no pre-sentence investigation or

“psychosexual evaluation” to ascertain his likelihood of recidivism.

{¶178} The trial court made a statutory finding pursuant to R.C. 2929.14(C)(4)(a)

that Mr. Stevens committed the offenses while participating in the intervention in lieu of

conviction program for a prior and unrelated fifth-degree felony. The trial court did not,

and was not required to, make a statutory finding pursuant to R.C. 2929.14(C)(4)(c),

which relates to an offender’s “criminal history” and “future crime.”

{¶179} Mr. Stevens also acknowledges that the underlying facts are “awful” but

states that there was “no serious or permanent injury that required a hospital stay or

operation” and that his conduct “was not the worst form of the offense.”

{¶180} The trial court made a statutory finding pursuant to R.C. 2929.14(C)(4)(b)

indicating that “[a]t least two of the multiple offenses were committed as part of one or

more courses of conduct” and that “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.” Thus, the statute does not require the trial court

to determine that the great or unusual harm resulted in serious or permanent physical

injury or that the offender’s serious conduct was the worst form of the offense.

{¶181} Finally, Mr. Stevens states that the trial court’s sentence is “effectively a life

sentence without the possibility of parole.”

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Case No. 2020-P-0043
 {¶182} While Mr. Stevens’ aggregate prison sentence is certainly severe, it is

attributable, at least in part, to the sheer number of serious felony offenses he committed.

See State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 16

(noting this distinction). Mr. Stevens has not established that the trial court failed to

comply with its statutory obligations under R.C. 2929.14(C)(4) in imposing consecutive

sentences.

{¶183} Further, while consecutive sentences are reviewed for compliance with R.C.

2929.14(C)(4), individual felony sentences are reviewed under R.C. 2929.11 and R.C.

2929.12. See Gwynne, supra, at ¶ 17-18. Mr. Stevens has not asserted on appeal, much

less established, that any of his individual sentences are disproportionate to their

respective offenses pursuant to these statutes.

{¶184} In sum, Mr. Stevens has not clearly and convincingly established that his

consecutive sentences are not supported by the record or are contrary to law.

{¶185} Mr. Stevens’ second assignment of error is without merit.

{¶186} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.

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Case No. 2020-P-0043