[Cite as State v. Rucker, 2012-Ohio-4860.]




             IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.      24340

v.                                                     :            T.C. NO.   10CR1986

SIDNEY RUCKER, II                                      :            (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                             ..........

                                             OPINION

                         Rendered on the      19th         day of    October      , 2012.

                                             ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
         Attorney for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 15 West Fourth Street, Suite 100, Dayton,
Ohio 45402
       Attorney for Defendant-Appellant

                                             ..........

FROELICH, J.

                 {¶ 1} Sidney Rucker was convicted, after a jury trial, of aggravated robbery and

kidnapping, each with a firearm specification. The trial court sentenced Rucker to four years for the

aggravated robbery and three years for the kidnapping, to be served concurrently. The court merged

the firearm specifications and imposed an additional three years of incarceration for the specification,
                                                                                                      2

for an aggregate sentence of seven years in prison. Rucker appeals from his convictions.

            {¶ 2}   Rucker’s original appellate counsel filed a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the

record and the law, he found no potentially meritorious issues for appeal. Upon an initial review, we

found that potentially meritorious issues existed, and we appointed new counsel.

            {¶ 3}   Rucker now raises six assignment of errors on appeal. For the following reasons,

the trial court’s judgment will be affirmed.

                                                   I.

            {¶ 4}   Although Rucker has not raised an argument based on the sufficiency or weight of

the evidence, a summary of the evidence at trial will assist in our review of several of his assignments

of error.

            {¶ 5}   According to the State’s evidence, in the early afternoon on June 23, 2010, James

Leigh returned to the Dayton area after completing a commercial trucking job. After spending some

time at Stanley Truck Sales, where he stores his truck, Leigh went to his parents’ home, where he

lived with his maternal grandmother, parents, teenaged niece, and young daughter. Sometime after

5:00 p.m., Leigh arranged to meet a female acquaintance at Citizen Mart, the nearby “corner store.”

            {¶ 6}   Leigh drove his mother’s car to Citizen Mart, bought some cigarettes, and then

waited in the car for his friend. While Leigh waited, an unfamiliar young man wearing a red polo

shirt and blue jean shorts knocked on the driver’s side door. Leigh lowered the window, and the man

told him that his car had run out of gas; the man asked for a ride to the gas station. Leigh responded

that he was “not going that way” and that he was “doing something.” The man said “okay” and

stepped away. Immediately afterward, Leigh drove to another friend’s home and, when she was not

there, he returned to Citizen Mart.

            {¶ 7}   While Leigh sat in his car in the parking lot, the same young man (later identified
                                                                                                   3

as Rucker) got into the passenger side of the car, pulled out a gun, and repeatedly told Leigh to

“drive” and “take me to the money.” Leigh threw his wallet at Rucker, and Rucker retrieved $18 –

two $5 and eight $1 bills. Rucker still threatened to shoot Leigh and told Leigh to take him to an

ATM and to Leigh’s truck. Leigh did not have an ATM card; he drove toward his home. While en

route, Leigh tried unsuccessfully to grab the gun. Rucker swung the gun, hit Leigh on the side of his

face, and threatened to shoot Leigh if he “tried that again.”

         {¶ 8}     When Leigh got to his parents’ home, Leigh told Rucker that he was going to “run

in here and see if I can get some money from my parents.” Leigh and Rucker went inside, and Leigh

asked his mother, “Mama, you got some money that my friend can borrow?” Leigh’s mother said she

did not have any money. Leigh told Rucker that he would get some from his father, and they left the

house.

         {¶ 9}     Leigh’s mother, Patricia Leigh, testified that her son was acting nervous and she

“knew something was wrong.” As Leigh and Rucker left the house, she looked out the front window

and saw Rucker holding a gun down by his leg. Mrs. Leigh told her granddaughter (Leigh’s niece) to

call the police.

         {¶ 10}    Outside, a neighbor across the street asked Leigh if he could have a cigarette.

After Leigh responded to the neighbor, Mrs. Leigh came out of her house and asked how much

money was needed. Rucker responded that he needed a “stack,” meaning $1,000. Mrs. Leigh heard

Rucker ask Leigh, “Do you want me to get your mama?” Leigh waved to his mother to get inside

and yelled, “Shut the door.” Mrs. Leigh went back into the house, and Leigh “took off running”

through yards in the neighborhood. Rucker pursued him. Mrs. Leigh called the police on her cell

phone and, as she talked, got into her car to try to locate her son.

         {¶ 11}    A few blocks away, Leigh noticed a vehicle with its trunk open in the driveway of

one home. Believing that someone might be home, Leigh ran to the front screen door of that house
                                                                                                       4

and tried to get inside, but the door was locked.          He continued running, knocking off the

homeowner’s mailbox “so they could hear some kind of ruckus outside.” Leigh attempted to jump

the chainlink fence to the next yard, but his pant leg got caught and he fell over the fence and onto the

ground.

          {¶ 12}   Reginald Lewis, the owner of the home that Leigh had tried to enter, came out of

his house. He saw a man (Leigh) on his knees in Lewis’s neighbor’s yard while another man

(Rucker) pointed a 9mm or .45 caliber handgun at Leigh. Lewis did not know either individual.

Lewis heard Leigh begging Rucker, “Please don’t do this,” and saw Rucker hit Leigh in the face with

the gun. Rucker then “trotted” down the street. Lewis saw Rucker put the gun in his pants as he

went up the street. Leigh saw Lewis and asked to borrow Lewis’s cell phone. As he attempted to

call his parents, Leigh saw his mother driving her car up the street. Leigh got into the car, and Mrs.

Leigh drove them home.

          {¶ 13}   Deputy Penelope Vo received a report that “a light-skinned black male [was] being

chased by a dark-skinned black male.” The dispatcher relayed that the suspect was wearing a red

polo shirt and blue jeans shorts and was carrying a black handgun; the victim was also reportedly

wearing a red shirt and blue pants. Vo was dispatched to an intersection in Leigh’s neighborhood.

          {¶ 14}   While en route, Deputy Vo saw a shirtless black man in blue jean shorts and

carrying something red running in an overgrown field a few blocks from Lewis’s house. She

broadcasted to other officers, “I see this gentleman running.” Vo drew her firearm, intercepted

Rucker in the field, and ordered him to the ground. Rucker complied. Deputy Joseph Caito drove

up into the field, handcuffed Rucker, patted him down, and placed him in a cruiser. Caito collected

Rucker’s personal property, including two bundles of money (one of which was a stack with $18) and

a cell phone, and placed the items on the cruiser’s front passenger seat. No handgun was found.

After Caito and Vo briefly searched the field for the handgun, Caito drove Rucker to the Leighs’
                                                                                                    5

home, where Leigh identified Rucker as the perpetrator. At trial, Leigh, Mrs. Leigh, and Lewis

identified Rucker as the perpetrator, and all stated that Rucker had a gun.

        {¶ 15}    Rucker testified on his own behalf and presented three witnesses. Rucker testified

that he was a student at Miami Jacobs College, and that he met Leigh at Citizen Mart a couple of

weeks before June 23, 2010. Rucker testified that he had sold Leigh a little less than one-half ounce

of marijuana, worth $50, on credit. At that time, Rucker had gotten Leigh’s cell phone number and

learned that Leigh was a trucker.

        {¶ 16}    Rucker testified that on June 23, 2010, he picked up his friend, Jere Chappel, at

Chappel’s place of employment, and the two men drove around together. They eventually went to

Citizen Mart. While there, Rucker saw Leigh sitting in a car. Rucker approached Leigh and asked

him for his money. Rucker testified that Leigh gave him the $18 that he had and invited Rucker to

come with him to his parents’ home. Rucker described Leigh’s asking his mother for money and

stated that a neighbor asked Leigh for a cigarette. Rucker testified that Mrs. Leigh came onto her

front porch and spoke with Leigh. When Rucker turned his attention back to Leigh, Leigh was

running away from him. Rucker acknowledged that he followed Leigh briefly, but denied going onto

the street where Lewis lived. Rucker denied that he had a gun or had ever pointed a gun at Leigh.

        {¶ 17}    Chappel testified that he drove around with Rucker in Rucker’s truck beginning at

2:00 p.m. on June 23, 2010, and they eventually went to Citizen Mart. Chappel stated that he stayed

in Rucker’s truck while Rucker went into the store. When Rucker got out of the store, he went over

to Chappel and told him that he would be “right back.” Chappel saw Rucker leave in a car.

Chappel continued to wait in Rucker’s truck. Approximately ten to fifteen minutes later, Rucker

called Chappel and told Chappel that he (Rucker) was going to jail and that Chappel should take his

truck home.

        {¶ 18}    Joe Anderson, the Leighs’ neighbor, testified that he saw Leigh and another man on
                                                                                                      6

June 23, 2010, and that he got a cigarette from Leigh. Anderson did not see what happened after he

obtained the cigarette. Rucker’s sister testified that Rucker has a reputation as an honest, non-violent

person. On cross-examination, she stated that she was not aware of Rucker’s arrest for burglary in

2007.

        {¶ 19}    The State called Dayton Police Officer Aaron Fraley as a rebuttal witness. Fraley

testified that Rucker had told him that he (Rucker) had met Leigh previously and that Rucker had

approached Leigh to ask if he (Leigh) knew where to get marijuana. Fraley further testified that

Rucker admitted to “chasing” Leigh through the neighborhood, but that Rucker stated that he was

carrying his cell phone rather than a handgun.

        {¶ 20} Rucker was indicted with aggravated robbery and kidnapping, each with a firearm

specification. A jury convicted him of both counts, and he was sentenced to an aggregate term of

seven years in prison.

                                                  II.

        {¶ 21}    Rucker’s first assignment of error states:

        THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO

        SUPPRESS.

        {¶ 22}    In his first assignment of error, Rucker claims that the trial court erred in denying

his motion to suppress the “live identification” of him by the one of the alleged victims. He claims

that the police officers lacked a reasonable suspicion of criminal activity at the time he was stopped

and that the officers lacked probable cause to arrest him.         He now claims that the pre-trial

identification resulted from the unlawful seizure and should have been suppressed.

        {¶ 23}    Shortly before trial, Rucker moved to suppress the pre-trial identification on the

ground that the identification procedures were unduly suggestive and conducive to irreparable

mistaken identification. The court held a hearing on the motion, at which Deputies Vo and Caito
                                                                                                      7

testified. At the conclusion of the hearing, the trial court overruled Rucker’s motion, finding that

“there is no evidence of any undue suggestibility associated with the show-up, other than the

circumstances inherent in a show-up circumstance in and of itself of having the Defendant present in

the back of * * * a cruiser.”

        {¶ 24} As noted by the State in its brief, Rucker did not argue in the trial court that the

identification should be suppressed on the ground that his stop and detention were unlawful.

Accordingly, Rucker has waived this argument on appeal. However, we will discuss this issue in

more detail under Rucker’s fifth and six assignments of error, where he argues ineffective assistance

of counsel.

        {¶ 25}     Rucker’s first assignment of error is overruled.

                                                   III.

        {¶ 26}     Rucker’s second assignment of error states:

        THE PROSECUTOR COMMITTED REVERSIBLE MISCONDUCT.

        {¶ 27}     In his second assignment of error, Rucker claims that the prosecutor engaged in

misconduct when he (1) asked the victim and the victim’s mother about how their lives were affected

by the alleged robbery and kidnapping and (2) told the jury during closing argument, “We do not

reward defendants for getting rid of the gun. We don’t do it.”

        {¶ 28}     In reviewing claims of prosecutorial misconduct, the test is whether the

prosecutor’s remarks were improper and, if so, whether those comments prejudicially affected the

substantial rights of the defendant. State v. Jones, 90 Ohio St.3d 403, 420, 739 N.E.2d 300 (2000).

“The touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” Id.,

quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct 940, 71 L.Ed.2d 78 (1982). Where it is clear

beyond a reasonable doubt that the jury would have found the defendant guilty, even absent the

alleged misconduct, the defendant has not been prejudiced, and his conviction will not be reversed.
                                                                                                       8

See State v. Underwood, 2d Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review

allegations of prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d Dist.

Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S. 168, 106

S.Ct. 2464, 91 L.Ed.2d 144 (1986).

        {¶ 29} Rucker did not object to the prosecutor’s statement during closing argument or to

the questions posed to Leigh and his mother concerning how the offenses affected them.

Consequently, we review them for plain error. Plain error may be noticed if a manifest injustice is

demonstrated. Crim.R. 52(B); State v. Lewis, 2d Dist. Montgomery No. 23850, 2011-Ohio-1411,

¶ 54. In order to find a manifest miscarriage of justice, it must appear from the record as a whole that

but for the error, the outcome of the trial clearly would have been otherwise. Id., citing State v. Long,

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

        {¶ 30} Rucker argues that the prosecutor’s statement, “We do not reward defendants for

getting rid of the gun. We don’t do it,” was an improper statement of the prosecutor’s personal belief

or opinion.   We have previously addressed a similar comment by the prosecutor regarding the

absence of a firearm, stating:

                 [T]he State correctly asserts – and the prosecutor correctly stated during voir

        dire – that the prosecution was not required to produce the weapon in order to prove

        the firearm specifications.     Circumstantial evidence and direct evidence have

        equivalent probative value.      Consequently, the State could prove the firearm

        specification solely on the basis of circumstantial evidence; the prosecutor could have

        reasonably informed the prospective jurors of that fact.

                 However, the prosecutor’s proffered reason for not requiring the weapon to

        be produced, i.e., that “we don’t reward people for shooting someone and getting rid

        of a firearm,” was objectionable.      Lewis was not charged with tampering with

        evidence, and no evidence was submitted at trial to support the contention that Lewis
                                                                                                     9

        “got rid of” or “concealed or destroyed” the firearm. The mere fact that the gun was

        not recovered at the scene is insufficient to establish tampering with evidence.

        Nevertheless, in this case, the felonious assault and murder offenses arose out of the

        shooting death of [the victim]; there was overwhelming evidence that an operable

        firearm was used in the commission of the offenses. Accordingly, we find the

        prosecutor’s statements to be harmless beyond a reasonable doubt.

(Citations omitted.) Lewis at ¶ 45-46.

        {¶ 31} Here, the prosecutor stated during his closing argument, “Remember, just because

the gun is not here today doesn’t mean you cannot say the words guilty for a gun crime. We do not

reward defendants for getting rid of the gun. We don’t do it.” This statement might be better

characterized as an improper comment on the evidence rather than an improper statement of the

prosecutor’s personal opinion or belief.    Regardless of the characterization, for the reasons we

expressed in Lewis, the prosecutor’s statement was objectionable.

        {¶ 32} Nevertheless, we find that the prosecutor’s statement was harmless beyond a

reasonable doubt. Before the offending statement, the prosecutor detailed the evidence that had been

presented about Rucker’s possession of a gun. Three witnesses – Leigh, Leigh’s mother, and Lewis

– all testified that they saw Rucker with a gun, and both Leigh and Lewis described the gun for the

jury. Most notably, Lewis, who had no prior relationship with any of the parties, testified that he saw

Rucker pointing a 9mm or .45 caliber gun at Leigh and hit Leigh in the face with the gun. Upon

reviewing the trial as a whole, we conclude that the prosecutor’s statement was harmless beyond a

reasonable doubt.

        {¶ 33} Rucker further argues that the prosecutor’s questions to Leigh and Leigh’s mother

regarding how they have been affected by Rucker’s actions amount to prosecutorial misconduct. In

response to the prosecutor’s questions, Leigh testified that he lost his “dedicated run” with the
                                                                                                    10

trucking company due to the many court appearances concerning this case. Leigh’s mother testified

that she now keeps the doors of her home locked, which she did not previously do, and she has a

baseball bat by the door. She also testified that she no longer feels safe inside her home.

        {¶ 34}    Victim-impact evidence is admissible in certain circumstances, such as when the

evidence relates to both the facts attendant to the offense and the effect on the victim. State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 138, citing State v. Fautenberry, 72

Ohio St.3d 435, 440, 650 N.E.2d 878 (1995). In this case, however, the prosecutor’s questions

regarding the effects that the crimes had on Leigh and his mother were not relevant to Rucker’s guilt

or innocence, and the only apparent purpose for those questions was to elicit sympathy for the victims.

 Nevertheless, the prosecutor did not dwell on the impact of the crimes on the victims, either during

questioning or in closing argument. Given the overall context of the trial, we find no basis to

conclude that these limited questions affected the outcome of the trial

        {¶ 35} Rucker’s second assignment of error is overruled.

                                                  IV.

        {¶ 36} Rucker’s third assignment of error states:

        THE TRIAL COURT IMPROPERLY ANSWERED A JURY QUESTION

        DURING DELIBERATIONS WITHOUT COUNSEL PRESENT.

        {¶ 37} In his third assignment of error, Rucker claims that the trial court erred when it

answered a question by the jury during its deliberations outside of his presence and without affording

his attorney an opportunity to object or offer input on how the question should be answered.

        {¶ 38} The trial transcript reflects that around 11:20 a.m. on the second day of

deliberations, the jury sent the court, through the bailiff, a written question, which asked, “Does

kidnapping have an end point? Is it the mothers [sic] house[?] Can the kidnapping charge include

the cycle of Citizen’s Mart [to] James’ house [to] Mr. Lewis’s house[?] In other words, can we
                                                                                                     11

consider that James was not ‘released’ of his constraint until he left Lewis’s house[?]” The court

attempted to contact counsel, but was only able to reach the prosecutor. At 11:45 a.m., without

consulting with either of the attorneys regarding the jury’s question, the court answered the question,

in writing, as follows: “Focus on action, if you find it occurred. Look at page 7, Count II of the

instructions[.]” (Emphasis in original.) Count II was the court’s written instruction on kidnapping,

which was located on page 7.

        {¶ 39} At approximately 11:50 a.m., defense counsel came to the court. The prosecutor

was contacted, and the court retrieved the jury’s question and the written answer from the jury. The

question was then discussed with the attorneys, who had different views on how the question should

have been answered.        (Rucker’s presence was waived by his counsel for purposes of this

discussion.) The prosecutor indicated that he did not believe that the court’s response answered the

jury’s question, but he did not believe the answer itself was wrong. The prosecutor stated that the

proper answer to the jury’s question as to whether it could “consider that James was not ‘released’ of

his constraint until he left Lewis’s house” was “yes.” The prosecutor further suggested that the court

add “regardless of duration” to its answer.

        {¶ 40}    Defense counsel also objected to the court’s answer, stating that the court should

have simply referred the jury to its collective memory for the factual issue and provided a reference to

the legal instructions on the definition of kidnapping. Defense counsel further objected to the court’s

answering the jury’s question without consulting with counsel, and he requested a mistrial due to both

the court’s answer and the procedure it followed. The court denied the motion for a mistrial, and it

ruled that it would not change the answer that it had previously given to the jury. The answer was

returned to the jury without modification.

        {¶ 41} As an initial matter, a criminal defendant has a right pursuant to the Fourteenth

Amendment to be present at every “critical stage” of his trial. State v. Campbell, 90 Ohio St.3d 320,
                                                                                                      12

346, 738 N.E.2d 1178 (2000), citing Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed.

674 (1934). See also Crim.R. 43. “The question is whether ‘his presence has a relation, reasonably

substantial, to the fullness of his opportunity to defend against the charge.’” Campbell at 346, quoting

Snyder at 105-106.

        {¶ 42} “As a general rule, any communication between judge and jury that takes place

outside the presence of the defendant or parties to a case is error which may warrant the ordering of a

new trial. Such communications are required to be made in the presence of the defendant or parties

so that they may have an opportunity to be heard or to object before the judge’s reply is made to the

jury.” (Citations omitted.) Bostic v. Connor, 37 Ohio St.3d 144, 149, 524 N.E.2d 881 (1988).

        {¶ 43} Nevertheless, when defense counsel is present, a defendant’s constitutional rights

are not violated when he is absent during the conference regarding the court’s response to the jury’s

question. State v. Everette, 2d Dist. Montgomery No. 22838, 2009-Ohio-5738, ¶ 15, citing, e.g.,

Campbell at 346. And “[a]lthough the oral delivery of jury instructions is a critical stage of a trial, a

trial court’s written response to a jury question seeking to clarify those instructions is not.” State v.

Martin, 2d Dist. Montgomery No. 22744, 2009-Ohio-5303, ¶ 10, citing Campbell at 346.

        {¶ 44} In this case, the trial court erred by engaging in a communication with the jury,

without first providing counsel an opportunity to be heard or to object. “Such private communication

outside the presence of the defendant does not, however, create a conclusive presumption of

prejudice. The communication must have been of a substantive nature and in some way prejudicial

to the party complaining.” (Citations omitted.) State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54

(1990). For example, when the trial court’s response merely reiterates the same instruction that the

jury originally received, the improper ex parte communication is harmless. State v. Abrams , 39 Ohio

St.2d 53, 56, 313 N.E.2d 823 (1974).

        {¶ 45} As stated above, the trial court’s communication with the jury concerned a question
                                                                                                       13

from the jury regarding the duration of the kidnapping. The trial court responded, in writing, telling

the jury to “focus on action, if you find it occurred” and to review the jury instruction on kidnapping,

which was located on page 7 of the written instructions. The court did not expressly tell the jury, as

requested by defense counsel, to rely on its collective memory as to what had occurred and to apply its

findings to the instructions previously provided by the court, but the trial court’s written response was,

in essence, such an instruction.      The court did not answer the jury’s question as to whether

kidnapping had an endpoint, and it did not provide any supplemental instruction on the relevant law

or how to apply the facts to the law previously provided. Moreover, the answer given to the question

was the same both before and after hearing from the attorneys. Because the trial court’s response

essentially reiterated the instructions previously provided, albeit not in the same words, we conclude

that the court’s erroneous communication with the jury during deliberations was harmless.

        {¶ 46} The third assignment of error is overruled.

                                                    V.

        {¶ 47}     Rucker’s fourth assignment of error states:

        THE TRIAL COURT ERRED IN FAILING TO MERGE APPELLANT’S CONVICTIONS

        AS ALLIED OFFENSES OF SIMILAR IMPORT.

        {¶ 48}     Rucker’s fourth assignment of error asserts that the trial court erred in failing to

merge his aggravated robbery and kidnapping convictions as allied offenses of similar import. At

sentencing, the trial court told Rucker that it had “considered whether or not these were allied

offenses [of] similar import, and did the review and the analysis under State v. Williams. The Court

believes these are not allied offenses of similar import.”

        {¶ 49}     R.C. 2941.25 addresses the issue of merger and provides:

                 (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
                                                                                                    14

        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.

        {¶ 50}     The Ohio Supreme Court’s test for determining when offenses are allied offenses

of similar import that must be merged pursuant to R.C. 2941.25 was set forth in State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.              The supreme court held that, “[w]hen

determining whether two offenses are allied offenses of similar import subject to merger under R.C.

2941.25, the conduct of the accused must be considered.” Id. at syllabus. It explained:

                 Under R.C. 2941.25, the court must determine prior to sentencing whether

        the offenses were committed by the same conduct. Thus, the court need not perform

        any hypothetical or abstract comparison of the offenses at issue in order to conclude

        that the offenses are subject to merger.

                 In determining whether offenses are allied offenses of similar import under

        R.C. 2941.25(A), the question is whether it is possible to commit one offense and

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

        without committing the other. * * * If the offenses correspond to such a degree that

        the conduct of the defendant constituting commission of one offense constitutes

        commission of the other, then the offenses are of similar import.

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

        must determine whether the offenses were committed by the same conduct, i.e., “a

        single act, committed with a single state of mind.” * * *

                 If the answer to both questions is yes, then the offenses are allied offenses of
                                                                                                      15

        similar import and will be merged.

                 Conversely, if the court determines that the commission of one offense will

        never result in the commission of the other, or if the offenses are committed

        separately, or if the defendant has separate animus for each offense, then, according

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

(Citations and quotations omitted.) Johnson at ¶ 47-51.

        {¶ 51}    A defendant who argues on appeal that the trial court erred by not merging multiple

offenses bears the burden to show that the offenses are allied pursuant to R.C. 2941.25. State v.

Hale, 2d Dist. Clark No. 11 CA 33, 2012-Ohio-2662, ¶ 24.

        {¶ 52}    The Ohio Supreme Court has recognized that the commission of aggravated

robbery necessarily involves the restraint of the victim. See State v. Jenkins, 15 Ohio St.3d 164, 198,

473 N.E.2d 264 (1984), fn. 29 (kidnapping is implicit within every aggravated robbery). However,

aggravated robbery and kidnapping are not always allied offenses of similar import. A separate

animus for kidnapping exists where (1) “the restraint is prolonged, the confinement is secretive, or the

movement is so substantial 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.” State v. Logan, 60 Ohio St.2d 126,

397 N.E.2d 1345 (1979), syllabus.

        {¶ 53}    Here, Leigh’s restraint was prolonged, created a substantial risk of harm, and

involved substantial movement from the Citizen Mart store, where Leigh initially encountered

Rucker. Rucker ordered Leigh, at gunpoint, to “drive” and take him to the money. Leigh’s restraint

continued after Leigh gave Rucker his wallet; Rucker told him to go to an ATM and to his truck, and

he threatened and hit Leigh with his weapon when Leigh tried to grab the gun. Rucker continued to

restrain Leigh with his gun while Leigh drove to his parents’ home and Leigh attempted to obtain
                                                                                                      16

money from his mother.        After Leigh ran away from Rucker, Rucker again restrained Leigh’s

movements at Lewis’s home, where Rucker threatened and assaulted Leigh with his weapon.

          {¶ 54} Given the facts of the case, the trial court found that Rucker acted with a separate

animus when he engaged in the kidnapping. We find no fault with the trial court’s conclusion.

          {¶ 55} The fourth assignment of error is overruled.

                                                   VI.

          {¶ 56}    Rucker’s fifth and sixth assignments will be addressed together. They read:

                   APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

          OBJECT TO THE PROSECUTOR’S ASKING OF IRRELEVANT QUESTIONS WHICH

          WERE PREJUDICIAL TO APPELLANT.

                   APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

          RAISE ALL OTHER MERITORIOUS ISSUES PRESENTED ABOVE.

          {¶ 57} In his fifth and sixth assignments of error, Rucker claims that his trial counsel acted

deficiently by failing to object to the prosecutor’s victim-impact questions, the prosecutor’s closing

argument, and to the court’s failure to merge his offenses as allied offenses of similar import. He

also claims that his trial counsel should have moved to suppress his clothing and the live identification

of him.

          {¶ 58}    We review the alleged instances of ineffective assistance of trial counsel under the

two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to a strong presumption that his

or her conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688. To

reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial

counsel’s conduct fell below an objective standard of reasonableness and that counsel’s errors were
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serious enough to create a reasonable probability that, but for the errors, the result of the trial would

have been different. Id. Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel’s perspective at the time, and a debatable decision concerning trial strategy cannot

form the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d 516,

524-525, 605 N.E.2d 70 (1992).

        {¶ 59}     The “failure to file a suppression motion does not constitute per se ineffective

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

Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Rather, trial

counsel’s failure to file a motion to suppress constitutes ineffective assistance of counsel only if the

failure to file the motion caused the defendant prejudice; that is, when there is a reasonable

probability that, had the motion to suppress been filed, it would have been granted. State v. Howard,

2d Dist. Montgomery No. 23795, 2011-Ohio-27, ¶ 22, citing State v. Wilson, 2d Dist. Clark No. 08

CA 445, 2009-Ohio-2744, ¶ 11.

        {¶ 60} As previously discussed, the prosecutor’s victim-impact questions and the

prosecutor’s closing argument, although improper, did not affect the outcome of Rucker’s trial.

Consequently, we cannot conclude that Rucker was prejudiced by his counsel’s failure to object to the

prosecutor’s conduct. In addition, we have concluded that the trial court did not err in failing to

merge Rucker’s offenses as allied offenses of similar import. Accordingly, Rucker’s counsel did not

act deficiently by failing to object to the court’s imposition of sentence on both of Rucker’s offenses.

        {¶ 61} With respect to the motion to suppress, Rucker argues that his counsel should have

argued in a motion to suppress that he was seized              unlawfully and therefore the show-up

identification by Leigh, which occurred during that seizure, should have been suppressed.

        {¶ 62}     The testimony of Deputies Vo and Caito at the suppression hearing revealed the

following facts:
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        {¶ 63} At approximately 6:08 p.m. on June 23, 2010, Deputies Vo and Caito both heard a

dispatch that a “dark-skin, black male,” who was wearing a red polo shirt and blue jean shorts and

carrying a black handgun, was chasing a “light-skin black, male” in a red shirt and blue jeans. Vo

indicated that the dispatcher had received several calls, including a call from the victim’s niece and an

identified witness on a nearby street. Vo understood that the incident was “in progress,” and the

deputies were provided an intersection where they were to go to locate the perpetrator. Both deputies

headed toward that location in separate marked cruisers.

        {¶ 64}    As Deputy Vo approached the area, she saw a “dark-skinned, black male [with] no

shirt on”, who was wearing blue shorts and carrying a “red object,” running into an overgrown vacant

lot. Vo parked her cruiser, approached the man (Rucker), and ordered him at gunpoint to get on the

ground. Vo saw that the man was carrying a red polo shirt; she did not see a handgun or another

person being chased. As the man was getting onto the ground, Deputy Caito drove up in his cruiser,

handcuffed the man, and put him in his cruiser.

        {¶ 65}    Deputies Vo and Caito briefly looked around the lot for the missing handgun. Vo

then “backtracked the steps” that she had seen Rucker running, while Caito took Rucker to the

victim’s home. Caito parked near the victim’s home and approached Sergeant Statzer, who was

standing just inside the victim’s front door. Caito asked Statzer to step outside with him. Caito then

informed Statzer that “the subject that Deputy Vo had located was in the back of my car, and [he]

asked [Statzer] if he wanted to do a live ID on that subject.” Within a few seconds, Statzer “got the

victim from the house,” and told him, “We have a subject in the back of the car we’d like you to take

a look at, see if you recognize them.” Statzer and the victim came within two feet of Caito’s cruiser,

the victim looked in the back window, and the victim stated without hesitation, “That’s him. That’s

the guy.” (At that time, Rucker’s red shirt was on the seat next to him.) The victim then went back

into his house.
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         {¶ 66} Rucker does not now challenge the trial court’s conclusion that the show-up

identification by Leigh was not unduly suggestive. Rather, his argument turns on whether the

deputies properly detained him and brought him to Leigh’s residence for the identification.

         {¶ 67}    The Fourth Amendment to the United States Constitution protects individuals from

unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968). Under Terry, police officers may briefly stop and/or temporarily detain individuals in order

to investigate possible criminal activity if the officers have a reasonable, articulable suspicion that

criminal activity may be afoot. State v. Martin, 2d Dist. Montgomery No. 20270, 2004-Ohio-2738, ¶

10, citing Terry. We determine the existence of reasonable suspicion by evaluating the totality of the

circumstances, considering those circumstances “through the eyes of the reasonable and prudent

police officer on the scene who must react to events as they unfold.” State v. Heard, 2d Dist.

Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88,

565 N.E.2d 1271 (1991). The officer must have more than an inchoate hunch or suspicion to justify

an investigatory stop.

         {¶ 68}    In this case, we cannot conclude that Rucker’s counsel acted deficiently by failing

to challenge the show-up identification on the ground that Rucker’s seizure by the police, prior to the

identification, was unlawful. The deputies’ testimony at the suppression hearing established that they

were responding to several reports that a man in a red polo shirt and blue shorts and carrying a black

handgun was currently chasing another man. The deputies responded immediately, and when Deputy

Vo was within a few blocks of the intersection reported in the dispatch, she saw Rucker, who matched

the physical description, running in a vacant field and heading away from the reported location.

Rucker was wearing blue jeans and Deputy Vo could see that he was carrying something red in his

hands.    All of these facts (e.g., the timing and location of the encounter and the suspect’s

description), when considered together, created a reasonable suspicion that Rucker was the person
                                                                                                    20

who had chased another man with a gun, as reported in the dispatch. Deputies Vo and Caito were

thus entitled to stop and detain Rucker to investigate that reported criminal activity.

        {¶ 69}     It is arguable that the deputies’ conduct at the vacant field may have placed Rucker

in custody in the absence of probable cause to arrest him. Nevertheless, the officers had sufficient

information to create a reasonable suspicion that Rucker was the perpetrator of the crimes against

Leigh, and they were therefore entitled to detain him to investigate that possibility. As part of that

detention, the officers were permitted to transport Rucker to Leigh’s residence for a show-up

identification. Based on the record before us, we cannot conclude that Rucker would have prevailed

on his motion to suppress based on an unlawful detention had Rucker’s counsel presented such a

motion in the trial court.

        {¶ 70}     Finally, Rucker argues that his attorney should have moved to suppress his

clothing. The record contains no testimony as to when Rucker’s clothing was seized, but we infer

from the evidence at the suppression hearing that his clothing was taken after the show-up

identification. At that juncture, there was probable cause to arrest Rucker, and we can find no basis

in the record to conclude that counsel would have prevailed had he filed a motion to suppress the

seizure of Rucker’s clothing.

        {¶ 71} Rucker’s fifth and sixth assignments of error are overruled.

                                                   VII.

        {¶ 72} The trial court’s judgment will be affirmed.

                                               ..........



GRADY, P.J., concurs.

HALL, J., concurring:

        {¶ 73}     I agree with all the reasoning in the lead opinion except whether the prosecutor’s
                                                                                                    21

argument “We do not reward defendants for getting rid of the gun. We don’t do it” is objectionable

as an improper comment on the evidence or an improper statement of personal opinion. I don’t

believe it is either.

         {¶ 74}         The defendant was apprehended a few blocks from where he had committed the

aggravated robbery with a firearm a few minutes earlier. He did not have a firearm in his possession

upon arrest. It was reasonable for the jury to infer, and for the prosecutor to comment, that he had

gotten rid of the gun.

         {¶ 75}         I also don’t agree that the quoted comment is an improper statement of personal

opinion. The Supreme Court of Ohio has held that a prosecutor may express his personal opinion in

closing arguments if he bases that opinion on the evidence presented in court. See State v. Keenan,

66 Ohio St.3d 402, 408, 613 N.E.2d 203 (1993). What was found objectionable in Keenan was the

prosecutor’s personal comments about “his own emotions and the fervor with which he believed in

Keenan’s guilt.” Id. Here, I don’t interpret the quoted statement as personal opinion at all.

         {¶ 76}         I am concerned however that the quoted statement is objectionable to the extent

that it uses the word “We.” Imploring the jury not to reward the defendant for getting rid of the gun

is a powerfully crafted argument. But using the word “we” in the sentences suggests that the jury

should become part of the prosecution team and convict the defendant because of a sense of common

righteousness.

         {¶ 77} I agree, nevertheless, whether objectionable or not, the prosecutor’s statement was

harmless beyond a reasonable doubt. I therefore concur in affirming the judgment of the trial court.

                                                 ..........



Copies mailed to:

R. Lynn Nothstine
Brock A. Schoenlein
                       22

Hon. Mary L. Wiseman
