State v. Smith

[Cite as State v. Smith, 2024-Ohio-886.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY

STATE OF OHIO,
CASE NO. 9-23-04
PLAINTIFF-APPELLEE,

v.

STEVEN SCOTT SMITH, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court
Trial Court No. 22-CR-201

Judgment Affirmed

Date of Decision: March 11, 2024

APPEARANCES:

April F. Campbell for Appellant

Raymond A. Grogan, Jr. for Appellee
Case No. 9-23-04

MILLER, J.

{¶1} Defendant-Appellant, Steven Smith (“Smith”), appeals the January 13,

2023 judgment entry issued by the Marion County Court of Common Pleas.

Following a two-day trial, a jury found Smith guilty of felonious assault and

abduction. The trial court sentenced Smith to an aggregate prison term of 11 to 15

years. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶2} Smith was indicted by the grand jury on three counts: (1) kidnapping,

pursuant to R.C. 2905.01(A)(3), (C)(1); (2) felonious assault, pursuant to R.C.

2903.11(A), (D)(1)(a); and (3) abduction, pursuant to R.C. 2905.02(A)(2), (C). The

charges arose from an incident in Marion, Ohio on March 16, 2022. On that date,

Marion Police Officer Nick Esterline was dispatched to a residence at 348 Owens

Street in response to information that someone had been assaulted and held against

his will there. Lieutenant Josh Harris also responded to the residence.

{¶3} Upon arrival, Lieutenant Harris saw Smith coming out the back of 348

Owens Street. He began speaking with Smith, who said Lieutenant Harris could go

into the residence. Lieutenant Harris went upstairs and found Cody Frye (“Frye”)

laying on a bed in a bedroom. He could see bruising on Frye’s face, one of Frye’s

arms was “heavily swollen,” his hands were “extremely swollen,” and there were

-2-
Case No. 9-23-04

heavy ligature marks on his wrist. (Nov. 29, 2022 Trial Tr. at 73, 76). Lieutenant

Harris also found twine in the room.

{¶4} Lieutenant Harris spoke to Frye, who was “very lethargic, slow * * *

answering questions, [and had] slow physical movements.” (Id. at 73, 77).

Lieutenant Harris could tell Frye “was in an enormous amount of pain by the way

that he was speaking, he was scared and nervous and apprehensive to speak.” (Id.)

Frye told Lieutenant Harris he did not want to talk. Frye initially would not say who

had caused his injuries. However, he later confirmed to Lieutenant Harris it was

Smith who had done so.

{¶5} Given the severity of the injuries, as well as Frye’s indication he thought

his leg and arm were broken, Lieutenant Harris called for an ambulance. Dr. Marcus

Bear, the emergency physician who treated Frye’s multiple injuries, testified that

Frye told him he had been assaulted with a baseball bat, which was consistent with

Frye’s injuries. Additionally, Michael Diem, a detective with the City of Marion

Police Department, testified Frye told him Smith had assaulted him with a metal

baseball bat.

{¶6} Smith was subsequently arrested and charged through municipal court.

A preliminary hearing was held on March 25, 2022 with both Smith and his attorney

present. At the preliminary hearing, Frye testified he was at the residence on Owens

Street on March 16, 2022 because he was a tattoo artist and went there believing he

-3-
Case No. 9-23-04

was to give someone a tattoo. Frye further testified he was not allowed to leave the

residence because Smith said he would hurt him if he tried to leave. Frye also

testified Smith beat him, causing three fractures in Frye’s right arm, a cracked eye

socket, and 20 stitches to his shin. Among other treatment, he needed surgery to

have his arm reconstructed. Additionally, Frye testified he was scared for his life

and was only freed from the situation by police showing up.

{¶7} The case was bound over to the grand jury, which returned the three-

count indictment. The case ultimately proceeded to a jury trial. Frye did not appear

for trial. Over Smith’s objection, Frye’s testimony from the March 25, 2022

preliminary hearing was read to the jury as part of the State’s case-in-chief.

{¶8} Additionally, outside the presence of the jury, Smith’s counsel

proffered the testimony of Marion Police Officer Rob Musser and a narrative written

by Officer Andy Isom. The proffered testimony and written narrative related to an

incident that occurred on March 15, 2022. In his proffer, Officer Musser testified

he went to a home at 430 Fies Avenue in Marion on March 15, 2022, i.e., a different

location the day before the incident from which the charges against Smith arose. A

caller had told the police his brother, Cody Frye, was being attacked by Smith at

that location. Officer Musser saw Smith and Frye when he arrived at the location.

Officers could not substantiate that an assault had happened. Officer Musser did

not see any injury to Frye, and no witnesses came forward saying that an assault had

-4-
Case No. 9-23-04

occurred. Similarly, the narrative from Officer Isom said he also responded to 430

Fies Avenue and spoke with Frye, who advised he had not been assaulted.

{¶9} The trial court sustained the State’s objection to admitting Officer

Musser’s testimony and Officer Isom’s narrative on relevancy grounds because they

related to a separate incident at a different address on a different date. The trial

court found they were not relevant to “whether or not these offenses occurred as

charged here.” (Nov. 30, 2022 Tr. at 185-186; see also id. at 195-196).

{¶10} The jury found Smith not guilty of kidnapping, but guilty of felonious

assault and abduction. Smith appeared for his sentencing hearing, at which the trial

court sentenced him to consecutive prison terms: eight-to-twelve years for the

felonious assault conviction and thirty-six months for the abduction conviction.

This appeal followed.

II. ASSIGNMENTS OF ERROR

{¶11} Smith raises five assignments of error for our review:

First Assignment of Error

The trial court committed reversible error by admitting the victim’s
testimony at the preliminary hearing over Smith’s objection.

Second Assignment of Error

The trial court committed reversible error by not allowing Smith to
introduce evidence of the false accusation made against Smith hours
before when it involved the same victim.

-5-
Case No. 9-23-04

Third Assignment of Error

The State’s evidence that Smith committed the offenses was legally
insufficient as a matter of law.

Fourth Assignment of Error

The evidence also weighed manifestly against convicting Smith.

Fifth Assignment of Error

The trial court erred in failing to merge Smith’s offenses together
because he had one animus and engaged in one continuing course of
conduct.

III. DISCUSSION

A. First Assignment of Error

{¶12} In the first assignment of error, Smith argues Frye’s testimony from

the preliminary hearing was not admissible because it did not qualify for, or meet

the requirements of, Evid.R. 804(B).

i. Standard of Review

{¶13} We typically review a trial court’s decisions to admit or exclude

evidence for an abuse of discretion. State v. Conway, 109 Ohio St.3d 412, 2006-

Ohio-2815, ¶ 62. “However, we review de novo evidentiary rulings that implicate

the Confrontation Clause.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-

5735, ¶ 97. De novo review is independent, without deference to the lower court’s

decision. State v. Azeen, 163 Ohio St.3d 447, 2021-Ohio-1735, ¶ 59.

-6-
Case No. 9-23-04

ii. Applicable Law

{¶14} “Testimony taken at * * * a preliminary hearing at which the defendant

is present * * * may be used whenever the witness giving the testimony * * * cannot

for any reason be produced at the trial * * *.” R.C. 2945.49(A)(2). However, such

prior testimony still may be hearsay or otherwise inadmissible.

{¶15} The general rule is that “[h]earsay is not admissible.” Evid.R. 802.

However, Ohio’s Rules of Evidence provide an exception for certain former

testimony:

The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness: (1) Former Testimony. Testimony given as
a witness at another hearing of the same or a different proceeding * *
* if the party against whom the testimony is now offered * * * had an
opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination. Testimony given at a preliminary
hearing must satisfy the right to confrontation and exhibit indicia of
reliability.

Evid.R. 804(B)(1). Therefore, for testimony given at an earlier preliminary hearing

to qualify for this hearsay exception, the following requirements must be met: (1) it

must be testimony given by a witness; (2) at a previous hearing, regardless of

whether it is in the same matter; (3) the party against whom the testimony is being

offered must have had an opportunity and a similar motive to directly examine or

cross-examine the witness; (4) the testimony must satisfy the right to confrontation;

(5) there must be indications it is reliable testimony; and (6) the witness must be

unavailable. Id. Yet, meeting these requirements does not necessarily mean such

-7-
Case No. 9-23-04

testimony will always be admissible because other Rules of Evidence (e.g., Evid.R.

402) may bar its admission.

iii. Analysis

{¶16} Smith argues that Frye’s testimony from the preliminary hearing was

not admissible at trial for two reasons. First, according to Smith, “preliminary

hearing testimony in a criminal case is not considered ‘former testimony’ under

Evid.R. 804(B).” (Appellant’s Brief at 5). However, Smith relies on outdated

authority for his argument.

{¶17} The text of Evid.R. 804(B) plainly shows preliminary hearing

testimony can be considered former testimony for purposes of the hearsay

exception. The rule specifically mentions “[t]estimony given at a preliminary

hearing” and additional requirements for such testimony to qualify for admission at

a later proceeding. Evid.R. 804(B). It appears Smith’s confusion comes from his

citation to the rule’s initial staff notes from 1980. (See Appellant’s Brief at 5-6).

However, the rule was amended later that same year to delete a clause that had

exempted preliminary hearing testimony from the hearsay exception. See Katz,

Martin, & Macke, Baldwin’s Ohio Practice, Criminal Law, Section 38:14, at fn. 9

(3d Ed.) (“[a]s originally adopted in 1980, Evid.R. 804(B)(1) excluded preliminary

hearing testimony from the former testimony exception. See 62 Ohio St. 2d xlvii

(1980). * * * [Later in 1980, in response to the U.S. Supreme Court’s reversal of

-8-
Case No. 9-23-04

State v. Roberts, 55 Ohio St.2d 191 (1978)], the rule was amended by deleting the

clause that exempted preliminary hearing testimony. See 53 Ohio Bar 1218

(1980).”); Weissenberger & Stephani, Weissenberger’s Ohio Evidence Treatise,

Section 804:18, at 229 (2024) (“[a]s originally enacted, Rule 804(B)(1) * * *

expressly exclud[ed] testimony taken at a preliminary hearing where offered against

the accused,” but “the express exclusionary provision against preliminary hearing

testimony was eliminated” by amendment).

{¶18} As a second reason in support of his claim that Frye’s testimony from

the preliminary hearing was not admissible at trial, Smith contends the “testimony

did not satisfy Smith’s confrontation right, nor did it exhibit indicia of reliability.”

(Appellant’s Brief at 5). To us, Smith challenges only two of the requirements for

former testimony at a preliminary hearing to qualify for admission pursuant to the

hearsay exception under Evid.R. 804(B)(1).

{¶19} Regarding Smith’s confrontation right, the Sixth Amendment to the

United States Constitution provides: “In all criminal prosecutions, the accused shall

enjoy the right * * * to be confronted with the witnesses against him.” Sixth

Amendment to the U.S. Constitution. “[T]his bedrock procedural guarantee applies

to both federal and state prosecutions.” Crawford v. Washington, 541 U.S. 36, 42,

124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). “If one were to read this language literally,

it would require, on objection, the exclusion of any statement made by a declarant

-9-
Case No. 9-23-04

not present at trial.” Ohio v. Roberts, 448 U.S. 56, 62, 100 S.Ct. 2531, 65 L.Ed.2d

597 (1980). “But, if thus applied, the Clause would abrogate virtually every hearsay

exception, a result long rejected as unintended and too extreme.” Id.

{¶20} Instead, the Sixth Amendment’s Confrontation Clause prohibits an

out-of-court statement that is testimonial in nature from being “introduced against

the accused at trial unless the witness who made the statement is unavailable and

the accused has had a prior opportunity to confront that witness.” Bullcoming v.

New Mexico, 564 U.S. 647, 657, 131 S.Ct. 2705, 180 L.Ed. 2d 610 (2011); see also

Crawford, 541 U.S. at 59 (the Confrontation Clause permits admission of

“[t]estimonial statements of witnesses absent from trial * * * only where the

declarant is unavailable, and only where the defendant has had a prior opportunity

to cross-examine”). Prior testimony at a preliminary hearing qualifies as an out-of-

court statement that is testimonial in nature. Crawford, 541 U.S. at 68 (the term

‘testimonial’ “applies at a minimum to prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and to police interrogations”). In sum, the

Confrontation Clause prohibits admission of prior trial or preliminary hearing

testimony unless (1) the declarant is unavailable; and (2) the defendant had a prior

opportunity to cross-examine the declarant. Id. at 59. In contrast to some earlier

law, Crawford held that the testimony’s reliability itself does not dispense with the

-10-
Case No. 9-23-04

requirement that the testimony satisfy the right to confrontation.1 See id. at 62

(“[d]ispensing with confrontation because testimony is obviously reliable * * * is

not what the Sixth Amendment prescribes”).

{¶21} Here, Smith does not challenge Frye’s unavailability and concedes he

had a prior opportunity to cross-examine Frye. In fact, the record supports that

Smith’s counsel did cross-examine Frye at the preliminary hearing. (State’s Exhibit

61; Nov. 29, 2022 Trial Tr. at 128, 132-133). Thus, admission of Frye’s preliminary

hearing testimony was not prohibited by the Confrontation Clause. State v. Leigh,

2d Dist. Montgomery No. 28821, 2023-Ohio-91, ¶ 86 (no Confrontation Clause

violation when unavailable witness’s prior hearing testimony was presented at trial

because defendant’s attorney was afforded the right to cross-examine the witness at

the prior hearing).

{¶22} Finally, we address whether Frye’s testimony at the preliminary

hearing met the requirement that it “exhibit indicia of reliability.” Evid.R.

804(B)(1). Finding the right to confrontation satisfied is also relevant to whether

the testimony exhibits indicia of reliability. This is because the testimony’s

1
Smith does not claim he was entitled to greater or different rights or protections under the Ohio Constitution
than the United States Constitution. Further, the Ohio Supreme Court has said Section 10, Article I of the
Ohio Constitution provides no greater right of confrontation than the Sixth Amendment. State v. Arnold, 126
Ohio St.3d 290, 2010-Ohio-2742, ¶ 12; see also Ohio Constitution, Article I, Section 10 (“In any trial, in any
court, the party accused shall be allowed to * * * meet the witnesses face to face”); State v. Leonard, 104
Ohio St.3d 54, 2004-Ohio-6235, ¶ 110 (“[b]oth the Sixth Amendment Confrontation Clause, and Section 10,
Article I of the Ohio Constitution guarantee a criminal defendant the right to cross-examine witnesses who
testify against him”).

-11-
Case No. 9-23-04

reliability can be tested through cross-examination. See Crawford, 541 U.S. at 61

(the Confrontation Clause “commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the crucible of cross-

examination”). Yet, establishing that the “[t]estimony given at a preliminary

hearing * * * exhibit indicia of reliability” remains a stand-alone requirement.

Evid.R. 804(B)(1); Leigh, 2023-Ohio-91, at ¶ 87 (“[b]ecause testimony may be

admissible under the Confrontation Clause yet inadmissible under the rules of

evidence, and vice versa, see Crawford at 51, 124 S.Ct. 1354, the declarant’s

statements must fall within the constitutional requirements and the rules of evidence

to be admissible”).

{¶23} Here, Frye gave sworn testimony under penalty of perjury at the

preliminary hearing. The preliminary hearing was conducted in open court and

recorded with both Smith and his counsel in attendance. At the preliminary hearing,

the State directly examined Frey regarding the assault and Smith’s counsel cross-

examined him. Additionally, Frye identified Smith as his assailant both to a police

officer on the day of the incident and during his preliminary hearing testimony; he

never identified anyone else as his assailant. Frye also recalled his injuries, which

Dr. Bear corroborated. Consequently, we find Frey’s preliminary hearing testimony

-12-
Case No. 9-23-04

met the requirement that it exhibit indicia of reliability.2 Evid.R. 804(B)(1); State

v. Sidibeh, 10th Dist. Franklin No. 10AP-331, 2011-Ohio-712, ¶ 37-38 (finding the

reliability of an unavailable witness’s prior hearing testimony was properly

established because it was provided under oath and subject to cross-examination,

and further finding other evidence corroborated the testimony despite appellant’s

argument to the contrary).

{¶24} Having conducted our de novo review, we disagree with Smith’s

argument that Frye’s testimony from the preliminary hearing was inadmissible

because it did not qualify for, or meet the requirements of, Evid.R. 804(B). Smith’s

first assignment of error is overruled.

B. Second Assignment of Error

{¶25} In the second assignment of error, Smith relies on Evid.R. 616 to

support his contention: “the trial court should have allowed [him] to introduce

evidence that [he] was cleared of the false accusation that he had assault[ed] [C]ody

[F]rye only hours before the incident for which he was convicted.” (Appellant’s

Brief at 10). Smith asserts that denying him “from introducing evidence of this false

2
In support of his argument that Frye’s preliminary hearing testimony did not exhibit indicia of reliability,
Smith argues Frye admitted to lying on the stand regarding whether he stayed with Smith in the eight days
preceding the incident. (Appellant’s Brief at 8). However, Frye did not admit to lying on the stand. In
actuality, Smith’s counsel asked Frye if he lived at the Owens Street address; Frye said no; Smith’s counsel
asked if he denied sleeping on the couch the eight days prior to the incident; Frye said he had slept on the
couch for eight days, but had not lived at the residence in over eleven years. (See Nov. 29, 2022 Tr. at 132).
Smith also argues he had been falsely accused of committing the same acts the day prior to the incident, as
evidenced by the proffered testimony and police report. However, there is no evidence to support any alleged
false accusation was made by Frye.

-13-
Case No. 9-23-04

accusation to the jury, by way of Officer Musser’s testimony and Officer Isom’s

report, was reversible error.” (Id.).

i. Standard of Review

{¶26} We review the trial court’s decision not to admit the evidence for an

abuse of discretion. State v. Yohey, 3d Dist. Marion No. 9-95-46, 1996 WL 116144,

*8 (Mar. 18, 1996), citing State v. Graham, 58 Ohio St.2d 350, 352, 390 N.E.2d 805

(1979) (trial court did not abuse its discretion in not admitting evidence pursuant to

Evid.R. 616). An abuse of discretion connotes more than an error of law or

judgment; it implies a decision that is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

ii. Applicable Law and Analysis

{¶27} Smith relies on Evid.R. 616 to support his argument. That rule states,

in relevant part:

In addition to other methods, a witness may be impeached by any of
the following methods:

(A) Bias. Bias, prejudice, interest, or any motive to misrepresent may
be shown to impeach the witness either by examination of the witness
or by extrinsic evidence.

(B) Sensory or Mental Defect. A defect of capacity, ability, or
opportunity to observe, remember, or relate may be shown to impeach
the witness either by examination of the witness or by extrinsic
evidence.

-14-
Case No. 9-23-04

(C) Specific Contradiction. Facts contradicting a witness's testimony
may be shown for the purpose of impeaching the witness's testimony.
***

Evid.R. 616. “[E]vidence of a prior false accusation is admissible under Evid.R.

616(A) to show the victim’s bias, prejudice, interest, or motive for

misrepresentation.” State v. Schwegmann, 1st Dist. Hamilton No. C-180053, 2018-

Ohio-3757, ¶ 11. Thus, according to Smith, the trial court should have allowed Frye

to be impeached through the evidence of the false accusation against Smith shown

in Officer Musser’s testimony and Officer Isom’s report.

{¶28} Among other potential issues with this argument is that the false

accusation against Smith was not made by Frye. Smith’s proffered evidence

indicates a caller identifying himself as Frye’s brother made the allegation. There

is no evidence Frye made the false accusation (and Frye’s brother never testified).

Thus, because there was no evidence Frye made the accusation, there was no

testimony to impeach by specific contradiction. The incident the day prior was

irrelevant. Accordingly, pursuant to Evid.R. 616, the trial court did not abuse its

discretion in not admitting Officer Musser’s testimony and Officer Isom’s report

regarding the false accusation. Schwegmann, 2018-Ohio-3757, at ¶ 12-13 (“[i]f

[appellant] had obtained proof that [victim-witness] had made false accusations of

domestic violence against him to the police, it may have been probative of

-15-
Case No. 9-23-04

truthfulness and admissible to show bias, prejudice, interest, or a motive for

misrepresentation,” but there was no such proof).

{¶29} Smith’s second assignment of error is overruled.

C. Third Assignment of Error

{¶30} In the third assignment of error, Smith argues the State’s evidence that

he committed the offenses was legally insufficient as a matter of law. Smith moved

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

motion.

i. Standard of Review

{¶31} “A motion for acquittal under Crim.R. 29(A) is governed by the same

standard as the one for determining whether a verdict is supported by sufficient

evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37, citing State

v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995) and State v. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A sufficiency challenge disputes

whether a party met its burden of production at trial. State v. Messenger, 171 Ohio

St.3d 227, 2022-Ohio-4562, ¶ 26. “In reviewing a record for sufficiency, ‘[t]he

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.’” Tenace at ¶ 37, quoting State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

-16-
Case No. 9-23-04

Thus, “[i]n assessing the sufficiency of the evidence, we do not resolve evidentiary

conflicts or assess the credibility of witnesses.” State v. Jackson, 3d Dist. Allen No.

1-22-27, 2023-Ohio-2193, ¶ 26; see also Jenks at 279.

ii. Applicable Law

{¶32} Smith was convicted of felonious assault in violation of R.C.

2903.11(A)(1). A person violates this prohibition if he or she “knowingly * * *

[c]ause[s] serious physical harm to another.” R.C. 2903.11(A)(1). “A person acts

knowingly, regardless of purpose, when the person is aware that the person’s

conduct will probably cause a certain result or will probably be of a certain nature.”

R.C. 2901.22(B). Additionally, “[a] person has knowledge of circumstances when

the person is aware that such circumstances probably exist.” Id. The term “serious

physical harm to another” includes, but is not limited to, any of the following:

(c) Any physical harm that involves * * * some temporary, substantial
incapacity;

(d) Any physical harm that involves * * * some temporary, serious
disfigurement; [or]

(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.

R.C. 2901.01(A)(5)(c), (d), (e).

{¶33} Additionally, Smith was convicted of abduction. As relevant to the

instant case, a person commits abduction if he or she “knowingly,” “[b]y force or

-17-
Case No. 9-23-04

threat” and “without privilege to do so,” “restrain[s] the liberty of another person

under circumstances that create a risk of physical harm to the victim or place[s] the

other person in fear.” R.C. 2905.02(A)(2). The definition of “knowingly” is set

forth in the preceding paragraph. “‘Force’ means any violence, compulsion, or

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

2901.01(A)(1). “‘Risk’ means a significant possibility, as contrasted with a remote

possibility, that a certain result may occur or that certain circumstances may exist.”

R.C. 2901.01(A)(7). “‘Physical harm to persons’ means any injury, illness, or other

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

2901.01(A)(3). Finally, there is no evidence or argument Smith had a privilege to

restrain Frye’s liberty.

iii. Analysis

{¶34} In this assignment of error, Smith challenges only the sufficiency of

the evidence identifying him as the perpetrator of the crimes. According to Smith,

Frye was the only person who could identify him and Frye did not testify at trial.

Smith contends the testimony admitted at the trial through Lieutenant Harris did not

demonstrate Smith committed the offenses because Frye was initially unwilling to

accuse Smith of committing the offenses despite repeated inquires by the lieutenant.

We disagree.

-18-
Case No. 9-23-04

{¶35} The evidence at trial supported a finding beyond a reasonable doubt

that Smith was the perpetrator of the offenses against Frye. This included Frye’s

identification of Smith through the preliminary hearing testimony, which was

admitted at trial. State v. Ell, 12th Dist. Fayette No. CA2023-03-006, 2023-Ohio-

4583, ¶ 15 (the victim’s testimony, standing alone, can be “sufficient to support a

conviction for felonious assault in violation of R.C. 2903.11(A)(1)”). Additionally,

Frye identified Smith as his assailant to Lieutenant Harris and to Detective Diem,

who testified at trial. Further, Detective Diem and Dr. Bear both testified Frye

informed them he had been assaulted with a baseball bat, and Dr. Bear confirmed

Frye’s injuries were consistent with such an attack. Importantly, a baseball bat was

found inside the residence. Moreover, upon his arrival at 348 Owens Street,

Lieutenant Harris observed Smith leaving the residence where the assault occurred.

After viewing the evidence in a light most favorable to the prosecution, a rational

trier of fact could have found beyond a reasonable doubt that the State identified

Smith as the assailant who restrained Frye and beat him. State v. Beaver, 3d Dist.

Union No. 14-13-15, 2014-Ohio-4995, ¶ 37-39 (sufficient evidence supported

appellant’s felonious-assault conviction where victim testified appellant had

punched her, thus breaking her nose and causing facial bruising and requiring

surgery, and police officer testified victim said appellant had punched her in the

face).

-19-
Case No. 9-23-04

{¶36} Smith’s third assignment of error is overruled.

D. Fourth Assignment of Error

{¶37} In the fourth assignment of error, Smith submits that the evidence at

trial manifestly weighed against convicting him.

i. Standard of Review

{¶38} The “manifest-weight-of-the-evidence standard of review applies to

the state’s burden of persuasion.” Messenger, 2022-Ohio-4562, at ¶ 26. “To

evaluate a claim that a jury verdict is against the manifest weight of the evidence,

we review the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that we must reverse the conviction and order a new trial.” State v. Wilks,

154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168, citing Thompkins, 78 Ohio St.3d at

387. Yet, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against

the conviction,’ should an appellate court overturn the trial court’s judgment.” State

v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

ii. Analysis

{¶39} Similar to the third assignment of error, Smith argues in this

assignment of error that Frye did not testify at the trial and the other identification

-20-
Case No. 9-23-04

evidence was contradictory. (Appellant’s Brief at 12). Thus, according to Smith,

the evidence weighed manifestly against convicting him. We disagree.

{¶40} Having conducted a review of the record and evidence in accordance

with the standard set forth above, we cannot conclude the jury clearly lost its way

and created such a manifest miscarriage of justice that we must reverse the

convictions and order a new trial. See Beaver, 2014-Ohio-4995, at ¶ 45 (evidence

supporting sufficiency of the evidence likewise supported that appellant committed

felonious assault by manifest weight of the evidence); State v. Grimes, 3d Dist.

Union No. 14-05-20, 2006-Ohio-2144, ¶ 11-14 (State’s witnesses provided

testimony regarding the elements of abduction; overruling assignment of error

regarding manifest weight of the evidence).

{¶41} Frye’s preliminary hearing testimony, which was admitted at trial,

included details about how the beating he endured from Smith caused three fractures

in his right arm, a cracked eye socket, and 20 stitches to his shin. Lieutenant Harris

testified he could tell by what he saw and his interactions with Frye that Frye was

in an enormous amount of pain. Frye’s injuries required immediate medical

attention and (later) surgery. The physical harm Smith caused Frye qualifies as

“serious physical harm” to another. R.C. 2901.01(A)(5).

{¶42} Regarding the abduction conviction, evidence supported finding

beyond a reasonable doubt that Smith knowingly used force and threats to restrain

-21-
Case No. 9-23-04

Frye’s liberty under circumstances that created a risk of physical harm and placed

Frye in fear. R.C. 2905.02(A)(2). Through his preliminary hearing testimony, Frye

testified Smith threatened him with physical harm if he tried to leave the residence

at 348 Owens Street. Additionally, Lieutenant Harris testified regarding Frye’s

injuries, the heavy ligature marks on his wrist, and the twine found in the same

room. (Nov. 29, 2022 Trial Tr. at 73-74, 76, 84). The reasonable inference, based

on all the evidence, is Smith tied up Frye, thus also restraining his liberty by force.

Not only did the evidence support that the circumstances created a risk of physical

harm, but Frye testified he was scared for his life and was only freed from the

situation by the police showing up.

{¶43} Smith’s fourth assignment of error is not well taken.

E. Fifth Assignment of Error

{¶44} In the fifth assignment of error, Smith argues that the trial court erred

in failing to merge his felonious assault and abduction offenses because he had one

animus and engaged in one continuing course of conduct.

i. Standard of Review

{¶45} An appellate court “appl[ies] a de novo standard of review in

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

134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28. “Merger is a sentencing question, not

an additional burden of proof shouldered by the state at trial.” State v. Washington,

-22-
Case No. 9-23-04

137 Ohio St.3d 427, 2013-Ohio-4982, ¶ 18. The defendant bears the burden of

establishing he or she is entitled to the protection against multiple punishments for

a single criminal act provided by RC. 2941.25. Id.

ii. Applicable Law

{¶46} “When a defendant’s conduct supports multiple offenses, courts apply

the allied offenses analysis set forth in R.C. 2941.25 to determine if the offenses

merge or if the defendant may be convicted of separate offenses.” State v. Woodard,

2d Dist. Montgomery No. 29110, 2022-Ohio-3081, ¶ 35. The statute states:

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

(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed 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.

R.C. 2941.25.

{¶47} The Ohio Supreme Court clarified certain aspects of the statute in State

v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995. The court’s syllabus held:

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.

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

-23-
Case No. 9-23-04

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

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.

Ruff, 2015-Ohio-995, at syllabus. “[A] defendant’s conduct that constitutes two or

more offenses against a single victim can support multiple convictions if the harm

that results from each offense is separate and identifiable from the harm of the other

offense.” Id. at ¶ 26. “The evidence at trial or during a plea or sentencing hearing

will reveal whether the offenses have similar import.” Id.

iii. Analysis

{¶48} Smith argues the felonious assault and abduction offenses should have

merged because they involved one course of conduct and were not committed

separately. According to Smith, they involved one victim and did not occur over a

prolonged period of time. (Appellant’s Brief at 13).

{¶49} Here, the felonious assault and abduction offenses were of dissimilar

import because the harm that resulted from Smith’s conduct for each offense is

separate and identifiable. As explained above, evidence at trial supported that Smith

knowingly restrained Frye’s liberty by tying him up and threatening him if he tried

to leave. The ligature marks on Frye’s wrists demonstrate the use of force and harm

-24-
Case No. 9-23-04

caused in committing this offense. Fry testified he was afraid and could only leave

when the police arrived. Separately, the evidence at trial also supported that Smith

knowingly caused serious physical harm to Frye by beating him. The harm that

resulted from this felonious assault (i.e., three fractures in his right arm, a cracked

eye socket, and 20 stitches to his shin) was far more extensive and separate from the

harm inflicted by the abduction. Therefore, the offenses were not allied offenses of

similar import that merged for purposes of sentencing. See Woodard, 2022-Ohio-

3081, at ¶ 44 (the two offenses did not merge because the harm from the abduction

involved restraining victim’s liberty and causing her risk of physical harm and

fearing for her life, while the harm from the felonious assault involved choking her

to unconsciousness). Smith’s fifth assignment of error is overruled.

IV. CONCLUSION

{¶50} For the foregoing reasons, Smith’s assignments of error are overruled.

Having found no error prejudicial to the appellant in the particulars assigned and

argued, we affirm the judgment of the Marion County Court of Common Pleas.

Judgment Affirmed

WALDICK and ZIMMERMAN, J.J., concur.

/hls

-25-