[Cite as State v. Kirk, 2019-Ohio-4890.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                              No. 108136
                 v.                              :

LACEY KIRK,                                      :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: November 27, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-15-598476-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kerry A. Sowul, Assistant Prosecuting
                 Attorney, for appellee.

                 Edward M. Heindel, for appellant.

SEAN C. GALLAGHER, P.J.:

                   Lacey Kirk appeals his convictions for corruption of a minor,

stemming from an incident occurring in 2000, and for rape and kidnapping, which

took place in 2004.             The trial court sentenced Kirk to an aggregate term of

imprisonment of 27 years and 6 months, which included consecutive service of the
underlying sentences and the sentences imposed on two attendant firearm

specifications. For the following reasons, we affirm.

      2000 Incident

               The victim was 13 years old during the events leading to the

corruption of a minor conviction. According to the victim’s stepfather, the victim

looked like an average 13-year-old child at the time of the crime and, thus, appeared

her age. Kirk, then approximately 30 years old, picked up the victim across the street

from a middle school, while the victim was on her way to have breakfast with a friend

before school began. Kirk took the victim to a hotel room where he proceeded to

have sexual intercourse with her while he was in possession of a knife and a firearm.

The victim was in the hotel room for two days. When she left the hotel room, the

police were immediately notified and the DNA evidence implicating Kirk was

preserved. The jury acquitted Kirk of the rape and kidnapping charges stemming

from the 2000 incident, but found Kirk guilty of corruption of a minor under R.C.

2907.04(A), which provides that no person, who is at least 18 years old, shall engage

in sexual conduct with another person that is between 13 and 16 years old if the

offender knows the victim’s age, or is reckless in that regard.

      2004 Incident

               The second victim, then an 18-year-old university student, was

walking to a store one day near her house to get medication for a migraine. The

victim was approached by Kirk and offered a ride to get breakfast. The victim got

into Kirk’s car believing that Kirk was taking her to a restaurant, but he drove to a
nearby park instead of a restaurant. Kirk proceeded to rape the victim at gunpoint.

After the rape, Kirk offered the victim money. The victim described that act as an

attempted bribe. After the victim was released, she immediately reported the crime.

The DNA evidence implicating Kirk was preserved. The jury found Kirk guilty of

rape and kidnapping, including attendant firearm specifications.

      Evid.R. 404(B) Evidence

              During the joint trial, the state also introduced evidence, over Kirk’s

objection, of a third rape for which Kirk was convicted in 2006. See generally State

v. Kirk, 8th Dist. Cuyahoga No. 86895, 2006-Ohio-3691. In that case, Kirk picked

up a 16-year-old victim on her way to school. The victim was induced into the car

by one of her friends, who was dropped off along the way. Kirk drove the victim to

her house for a change of clothes and claimed he would take her to the mall. Instead,

Kirk drove the victim elsewhere and raped her in the back seat of the car at gunpoint.

The victim fled when Kirk became distracted by a noise. Kirk was on parole from

this conviction at the time he was arrested in connection with the 2000 and 2004

crimes, and was then serving a 120-day term of imprisonment for a parole violation,

which would have expired sometime in December 2015.

              Before the trial commenced, Kirk filed a motion to dismiss based on

preindictment delay. The trial court initially granted the motion with respect to the

2004 incident. The state filed its interlocutory appeal as a matter of right claiming

the trial court applied the incorrect standard. State v. Kirk, 8th Dist. Cuyahoga No.

104866, 2016-Ohio-8296, ¶ 1. Kirk conceded the error, and the case was remanded
for the purposes of conducting a hearing under the appropriate standard of review.

The renewed motion was ultimately denied.

               In the first assignment of error, Kirk claims the trial court erred in

denying his renewed motion to dismiss. According to Kirk, with respect to the 2000

incident, “there was a lack of physical evidence and/or pictures that were no longer

available” and with respect to the 2004 incident, “there was missing evidence that

was connected with the case, including the possibility of phone records that

otherwise could have generated, video-taped information that could have been

drawn, that could have actually challenged or contradicted [the victim’s] rendition

of the story.” (Emphasis added.) Kirk has not specifically identified any evidence

that he is unable to obtain or which pictures would have aided the defense. His sole

contention is that there could be evidence that is no longer available in light of the

age of the case.

               Under the burden-shifting framework for analyzing a due-process

claim based on preindictment delay, a defendant is required to present evidence of

actual prejudice before the burden shifts to the state to produce evidence of a

justifiable reason for the delay. State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105,

69 N.E.3d 688 ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217, 1998-Ohio-575,

702 N.E.2d 1199. The determination of actual prejudice turns on a case-by-case

review of the particular facts and circumstances. Id., citing State v. Walls, 96 Ohio

St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, and United States v. Marion, 404

U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468. “Actual prejudice exists when missing
evidence or unavailable testimony, identified by the defendant and relevant to the

defense, would minimize or eliminate the impact of the state’s evidence and bolster

the defense.” Id., citing State v. Luck, 15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097

(1984).

              Kirk has not demonstrated prejudice. His claims of the possibility of

lost evidence that could have aided his defense are vague and, at best, speculative.

He has not presented any argument that identifies any evidence that was available

before the prolonged delay caused its unavailability. In order to demonstrate actual

prejudice, at the least the defendant must identify the missing evidence or

unavailable testimony. He cannot rely on vague assertions of the possibility of being

able to obtain evidence if the case was prosecuted in a timelier manner. See Jones.

The limited arguments presented in this appeal cannot form the basis of a

conclusion that the trial court erred in denying the motion to dismiss. App.R.

16(A)(7). The first assignment of error is overruled.

              In the second assignment of error, Kirk claims the trial court erred by

denying a motion for separate trials of the 2000 and 2004 crimes. According to

Kirk, the evidence of the two rape claims from 2000 and 2004 was not simple and

direct.

              Crim.R. 8(A) provides that “two or more offenses may be charged in

the same indictment” if the offenses “are of the same or similar character, or are

based on the same act or transaction, or are based on two or more acts or

transactions connected together or constituting parts of a common scheme or plan,
or are part of a course of criminal conduct.” Joinder is generally permitted to

“conserve judicial resources, reduce the chance of incongruous results in successive

trials, and diminish inconvenience to the witnesses.” State v. Schaim, 65 Ohio St.3d

51, 58, 1992-Ohio-31, 600 N.E.2d 661, citing State v. Torres, 66 Ohio St.2d 340, 343,

421 N.E.2d 1288 (1981). If offenses are properly joined under Crim.R. 8(A), the

charges may be severed under Crim.R. 14 if the joinder will prejudice the moving

party’s rights. Id. In order to demonstrate prejudice, a defendant must affirmatively

show that the evidence of the other crimes would not be admissible in the other trial

if the counts were severed, and if the evidence would not be separately admitted,

that the evidence of each crime is not simple and direct. Schaim at ¶ 42.

              Kirk’s sole claim with respect to the joinder issue is that the “jury was

presented with three separate rape allegations, including the 404(B) evidence [and

the jury] could not be expected to rationally judge each case separately without

making improper inferences about Kirk’s character.”

              The jury, to the contrary, acquitted Kirk of the rape and kidnapping

charges stemming from the 2000 incident and solely convicted Kirk for corruption

of a minor based on the undisputed evidence that Kirk, who was then approximately

30 years old, had sexual relations with a 13-year-old victim who appeared to be of

that age. The actual results of the trial demonstrate that Kirk was not prejudiced by

the joinder. The best outcome Kirk could have achieved with respect to the 2000

incident was a conviction for the corruption of a minor in light of the fact that the

DNA evidence demonstrated that he had sexual intercourse with the victim, who
was described as an average looking 13-year-old child at the time of the crime. The

jury’s verdict demonstrates its capability of separating the evidence from the

different events. The second assignment of error is overruled.

              This conclusion also resolves the fourth assignment of error, in which

Kirk argues that the allegedly improper admission of his conviction for rape as

admitted under Evid.R. 404(B) prejudiced Kirk’s right to a fair trial because the jury

could not be expected to separate all three events and acquit Kirk of any of the

charges.

              In determining whether to grant a new trial as a result of the

erroneous admission of evidence under Evid.R. 404(B), appellate courts consider

both the impact of the offending evidence on the verdict and the strength of the

remaining evidence after the tainted evidence is removed from the record. State v.

Tate, 8th Dist. Cuyahoga No. 102474, 2015-Ohio-4496, ¶ 23. “‘[A]n improper

evidentiary admission under Evid.R. 404(B) may be deemed harmless error on

review when, after the tainted evidence is removed, the remaining evidence is

overwhelming.’” Id., quoting State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052,

24 N.E.3d 1153, ¶ 32. In this case, not only was the jury demonstrably capable of

limiting its use of the evidence, as demonstrated by the acquittal it returned on the

rape and kidnapping charges stemming from the 2000 incident, but the evidence

presented in favor of the 2004 crimes was overwhelming. Id., quoting Morris at

¶ 33.
               In this case, there is no dispute that Kirk had sexual contact with the

victim during the 2004 incident; the only question was one of consent based on

Kirk’s argument that the sexual intercourse was a sex-for-hire situation. On this

point, the victim testified that she was raped at gunpoint after Kirk lured her into

his vehicle under false pretenses. The victim discussed being offered money after

the crime occurred, but framed that offer as a bribe on Kirk’s part to buy her silence.

Further, the victim reported the rape immediately upon being released and the DNA

evidence implicating Kirk was preserved.        Kirk did not offer any evidence to

contradict the victim’s trial testimony, nor did he establish any credible basis to

discredit that testimony. Regardless of whether the evidence of the rape conviction

was properly admitted under Evid.R. 404(B), the jury demonstrated its ability to

segregate the evidence as it related to the other crimes, and the evidence in favor of

the conviction based on the 2004 crime was overwhelming. As a result, even if we

considered and recognized error with respect to the Evid.R. 404(B) issue for the sake

of discussion, any such error would be harmless. The fourth assignment of error is

overruled.

               In the third assignment of error, Kirk claims his statutory right to a

speedy trial was violated because he was arrested on September 9, 2015, and trial

commenced on October 15, 2018 — 1,132 days from arrest to trial.

               Under R.C. 2945.71(C)(2), the state must bring a defendant to trial on

felony charges within 270 days of his arrest. State v. Geraci, 8th Dist. Cuyahoga

Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 19. Each day a defendant is held in jail
in lieu of bail counts as three days for purposes of calculating speedy trial time. Id.

“The running of the speedy-trial clock may be temporarily stopped, that is, tolled,

only for reasons listed in R.C. 2945.72. Upon review of a speedy-trial issue, a court

is required to count the days of delay chargeable to either side and determine

whether the case was tried within applicable time limits.” State v. Sanchez, 110 Ohio

St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 8. Continuances at the defendant’s

request, and any reasonable period to allow the state an opportunity to respond and

the court an opportunity to rule on any defense motion, toll the statutory time. Id.

at ¶ 26-27.

               There are two important considerations that cannot be overlooked.

The setting of a trial date at the defendant’s request does not, in and of itself, toll the

speedy-trial clock. State v. Michailides, 2018-Ohio-2399, 114 N.E.3d 382, ¶ 31-35

(8th Dist.). Further, there are no “hard-line” rules that dictate the resolution of

speedy-trial calculations. Any announcement of so-called “hard-line” rules “merely

serve as guideposts for a court’s analysis.” State v. Martin, 156 Ohio St.3d 503,

2019-Ohio-2010, 129 N.E.3d 437, ¶ 25. “When the facts and circumstances of the

case show that the underlying source of the delay was attributable to the defendant,”

those delays must be so attributed. Id., citing State v. Bauer, 61 Ohio St.2d 83, 84,

399 N.E.2d 555 (1980).

               In the initial briefing, neither party expounded on the discussion nor

provided any indication whether Kirk was being held in conjunction with another

matter during the pendency of the underlying case. Accordingly, and in the light of
the constitutional implications of the arguments advanced, this court sought

supplemental briefing to permit the parties to clarify their respective positions in

advance of the oral argument.

               In that briefing, Kirk claims to have been held in jail solely for the

underlying case for the purpose of the “triple-count” provision of R.C. 2945.71(D),

which provides that each day an offender is held in jail in lieu of bail on the pending

charge counts as three days for the 270-day, statutory limit. In response, the state

attempted to supplement the record with an unauthenticated correspondence from

Kirk’s parole officer, in which it is indicated that Kirk violated parole in May 2017

and an inactive hold was placed for the violation. The state’s motion is denied.

However, that fact was already in the appellate record and the state need not have

resorted to attempting to supplement the record. In the hearing that was conducted

on the record in October 2018, the trial court was notified of the parole holder that

related back to the May 2017 parole violation. As a result, the triple-count provision

does not apply to Kirk after May 2017. State v. Burks, 8th Dist. Cuyahoga No.

106639, 2018-Ohio-4777, ¶ 27, citing State v. Glover, 8th Dist. Cuyahoga No. 89059,

2007-Ohio-5727, ¶ 3, and State v. Brown, 64 Ohio St.3d 476, 479, 1992-Ohio-96,

597 N.E.2d 97.

               Out of the 1,132 calendar days that transpired between his arrest and

trial, Kirk contends that only 431 days tolled during that time. At the other end of

the spectrum, the state contends that all but 11 days tolled. Neither party is correct.

Kirk ignored the continuances of the pretrials and trial dates that were at his request
and that are considered tolling events. See generally Martin, 156 Ohio St.3d 503,

2019-Ohio-2010, 129 N.E.3d 437. The state, on the other hand, improperly tolled

the time periods from when a trial date was set at the defendant’s request and failed

to account for several time periods in which nothing in the record demonstrated a

tolling event. See generally Michailides, 2018-Ohio-2399, 114 N.E.3d 382 (8th

Dist.). “[B]ecause we are dealing with a fundamental right of the accused,” we will

briefly address the parties’ respective positions with full recognition that the

offender’s “interest in a speedy trial is specifically affirmed in the Constitution.”

Barker v. Wingo, 407 U.S. 514, 537, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). As such,

we cannot superficially overrule or sustain based on the arguments provided. We

must address the record as it exists.

              Kirk was arrested on September 9, 2015, and filed a motion for

discovery on September 15 (6 days). Thereafter, based on several continuances at

his request, time tolled through the state’s interlocutory appeal that also tolled the

statutory time. R.C. 2945.72(H) and (I). Following the expiration of the parties’

appellate rights, nothing tolled the time between February 5, 2017, and Kirk’s

motion to continue the trial date filed on March 7, 2017 (90 days, triple counted).

Akron v. Downey, 24 Ohio App.3d 225, 226, 495 N.E.2d 28 (9th Dist.1984) (speedy-

trial time tolls during the period for which an appeal may be filed with the Ohio

Supreme Court following an appellate decision). A pretrial was continued at the

defendant’s request until April 10, 2017, but that pretrial was not conducted until

April 13, 2017. There is no indication in the record as to the reason for the pretrial
not occurring, and accordingly those days are attributed to the state (6 days, triple

counted). State v. Johnson, 8th Dist. Cuyahoga No. 106532, 2019-Ohio-3178, ¶ 16.

After that time, Kirk was not in custody solely on the underlying charges; he was also

held on a parole-violation holder.

               Between July 10 and July 19, 2017, October 17 and October 25, 2017,

and June 6 and June 11, 2018, the same thing occurred — a pretrial was set but not

conducted until sometime later (22 days in total within those dates). Id. On July 24,

2017, the trial was set at defendant’s request for August 14, 2017, which was the day

that Kirk renewed his motion to dismiss (21 days). Michailides. Time was tolled

until the trial court ruled on that motion on October 17, 2017. Another pretrial was

continued at Kirk’s request until November 2, 2017, and trial was set for December

5, 2017 (33 days). The trial date was converted into a pretrial, and time tolled for

Kirk’s continuance requests until January 22, 2018, when a new trial date was set.

On February 23, Kirk filed a motion that we will assume at the very least tolled the

time for 10 days for the state’s response and a brief period for the trial court to render

a decision. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 8.

Nothing tolled the time otherwise until April 18, 2018, when Kirk sought to continue

a pretrial conference (75 days in total). Following the series of continuances at the

defendant’s request, the speedy-trial time ran again between July 17, 2018, when a

trial date was set, and July 23 when Kirk filed several motions in advance of the trial

date that required the state’s response and a reasonable period for the court’s ruling

(6 days). The August 21 trial date, at which time the July 23 motions ostensibly
could have been ruled upon, was continued at the defendant’s request until October

15, tolling the remaining time.

               Accordingly, only 259 (6+90+6+22+21+33+75+6) of the 270

statutory speedy-trial days accumulated between September 2015 and October 2018

in light of the tolling events. Kirk’s statutory rights were not violated, and the third

assignment of error is overruled.

               In the fifth assignment of error, Kirk claims the trial court erred when

it denied him the right to represent himself at trial. During a pretrial hearing

conducted on the record, Kirk asked to discharge his court-appointed attorney and,

in the alternative to seeking self-representation, asked for a continuance to allow

himself time to retain counsel of his choosing. After a lengthy dialogue, the trial

court permitted Kirk’s then-assigned counsel to withdraw and the court appointed

the public defender’s office to represent Kirk. Kirk never renewed his motion to

assert his right to self-representation.

               A defendant’s “right to self-representation is rooted in the Sixth

Amendment to the United States Constitution, which provides the following: ‘[i]n

all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for

his defense.’” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d

93, ¶ 25. “The Ohio Constitution provides that ‘[i]n any trial, in any court, the party

accused shall be allowed to appear and defend in person and with counsel.’” Id.,

quoting Article I, Section 10, Ohio Constitution. A defendant ‘“may proceed to

defend himself without counsel when he voluntarily and knowingly and intelligently
elects to do so.’” Id. at ¶ 28, quoting State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d

399 (1976), paragraph one of the syllabus. A trial court’s denial of the right to self-

representation is reversible error when the defendant properly invokes the

constitutional right. Id.

               In order to be “proper,” however, the defendant must “unequivocally

and explicitly invoke” his right. Id. at ¶ 29. Courts must “indulge in every reasonable

presumption against waiver” of the right to counsel.          Id., quoting Brewer v.

Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). And further, even

if an unequivocal and explicit request for self-representation is made, a defendant

may later abandon that request by acquiescing to counsel’s legal representation. Id.

at ¶ 31, citing State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶

42, and McKaskle v. Wiggins, 465 U.S. 168, 182, 104 S.Ct. 944, 79 L.Ed.2d 122

(1984).

               In this case, Kirk’s initial request was equivocal, and the trial court

did not err by appointing another attorney in the attempt to provide Kirk with the

constitutionally mandated representation.        Although Kirk initially sought to

discharge his court-appointed attorney and to proceed pro se, he did so based on his

intent to retain counsel of his choosing. This is not an express invocation of the right

to self-representation. Absent an express invocation, the constitutional right to self-

representation is waived. Id. Further, even if Kirk’s initial request was unequivocal,

Kirk acquiesced to the representation provided by the public defender throughout

the remainder of the trial proceedings. Nothing from this record indicates that Kirk
pursued an intention to represent himself beyond the abandoned request that came

before his second appointed attorney was granted leave to withdraw and the public

defender’s office was appointed to represent Kirk. See Cassano at ¶ 42. Kirk,

therefore, waived any right to self-representation in accepting the advice and

assistance of the subsequent attorney appointed to represent him. Id. The fifth

assignment of error is overruled.

              In the sixth and seventh assignments of error, Kirk claims that his

convictions are against the weight of the evidence. Although Kirk framed the

seventh assigned error in terms of sufficiency of the evidence, the sole argument

advanced is expressly premised on the weight-of-the-evidence standard of review.

As he claimed in the appellate briefing, “[f]or the reasons set forth in the previous

assignment of error [(dealing with the weight of the evidence)] Kirk also claims that

the convictions were not supported by sufficient evidence.”

              A claim that a jury verdict is against the weight of the evidence

involves a separate and distinct test that is much broader than the test for

sufficiency. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d

1038, ¶ 193. Kirk has not presented separate arguments in support of the claim that

the conviction is based on insufficient evidence. As a result, we will solely address

Kirk’s arguments under the weight-of-the-evidence standard as presented. App.R.

16(A)(7); Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, at ¶ 2.

              When reviewing a claim challenging the manifest weight of the

evidence, the court, reviewing the entire record, must weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way

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

reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-

Ohio-52, 678 N.E.2d 541. In undergoing this review, appellate courts must “ask

whose evidence is more persuasive — the state’s or the defendant’s?” Id. This means

that

       “The [reviewing] court * * * weighs the evidence and all reasonable
       inferences, considers the credibility of witnesses and determines
       whether in resolving conflicts in the evidence, the [finder of fact] clearly
       lost its way and created such a manifest miscarriage of justice that the
       [judgment] must be reversed and a new trial ordered.”

(Ellipsis and alterations sic.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-

2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115,

750 N.E.2d 176 (9th Dist.2001). Appellate courts sit as the thirteenth juror with the

ability to disagree with the factfinder’s resolution of the conflicting testimony.

Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d

652 (1982).    The appellate court does not defer to the trier of fact.           See id.

Nevertheless, “[t]he discretionary power to grant a new trial should be exercised

only in the exceptional case in which the evidence weighs heavily against the

conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

               Kirk was convicted of corruption of a minor pursuant to R.C.

2907.04(A), which provides that “[n]o person who is eighteen years of age or older

shall engage in sexual conduct with another, who is not the spouse of the offender,
when the offender knows such other person is thirteen years of age or older but less

than sixteen years of age, or the offender is reckless in that regard.” He claims that

the state failed to present credible evidence that he knew that the victim was 13 years

old or older but less than 16 years old, or that he was reckless in that regard.

               At trial, the state presented evidence that the victim was an average

looking 13-year-old child whom Kirk picked up across from a middle school as the

victim was walking to school. Kirk argues that there is no evidence that the victim

told Kirk her age, but this misses the point. The victim does not need to disclose her

age in order to put the offender on notice of her tender years. From the evidence

presented, the jury reasonably concluded that Kirk was at least reckless with respect

to the victim’s age in light of the fact that he picked her up near a middle school as

the victim was walking to school and the undisputed evidence demonstrates that the

victim appeared her age at the time of the crime. There is nothing inherently

unreliable regarding the testimony demonstrating Kirk’s knowledge of the victim’s

age.

               With respect to the rape and kidnapping convictions based on the

2004 incident, Kirk claims there was no evidence of force with respect to the rape

and the state failed to establish kidnapping because the victim voluntarily entered

the car. Neither argument has merit.

               The force element of rape was satisfied with the victim’s credible

testimony that Kirk threatened her with a brandished firearm. In addition, the fact

that the victim voluntarily entered Kirk’s car is irrelevant. In order to demonstrate
that a kidnapping occurred, the state must present evidence of force, threat, or

deception. Kirk does not contest and has not presented any basis to undermine the

victim’s credibility with respect to her testimony establishing that she entered the

car under the belief that Kirk would take her to a restaurant to get breakfast before

Kirk drove the victim to the secluded area against the victim’s wishes.         This

demonstrates kidnapping by deception.        See, e.g., State v. Frazier, 8th Dist.

Cuyahoga No. 107680, 2019-Ohio-2739, ¶ 20 (conviction for kidnapping by

deception affirmed based on evidence that the victim voluntarily entered the car

under the belief of being taken to the store). This is not the exceptional case

warranting appellate intervention. The sixth and seventh assignment of errors are

overruled.

              In the eighth assignment of error, Kirk claims that his rape and

kidnapping convictions are imposed on allied offenses of similar import. Kirk did

not preserve this error for appeal by lodging a timely objection, and therefore, he

must demonstrate plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-

2459, 38 N.E.3d 860, ¶ 22. This limits our appellate review. The plain error doctrine

is not to be invoked except in the “utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.” (Emphasis sic.) Id. at ¶ 23.

              This is not that exceptional case. Kirk’s sole argument is that the

kidnapping relating to the 2004 incident did not occur until he brandished the

firearm immediately before raping the victim, and therefore, according to Kirk, the

two crimes were committed simultaneously. This ignores the “deception” aspect of
the kidnapping charge that is based on the credible fact that Kirk deceived the victim

into getting into the vehicle with the false pretense of going to get breakfast together.

See, e.g., State v. Keeler, 8th Dist. Cuyahoga No. 101748, 2015-Ohio-1831, ¶ 49-50.

Instead of taking the victim to a restaurant, Kirk abducted the victim and took her

to a secluded park in order to commit the rape. The kidnapping in this case goes

well beyond Kirk’s brandishing the firearm immediately before committing the

crime. Id. Accordingly, Kirk has not demonstrated plain error and the eighth

assignment of error is overruled.

               In the ninth assignment of error, Kirk claims the trial court erred by

imposing maximum sentences on the underlying offenses to be consecutively

served. The sole argument presented, however, is limited to the claim that both

victims were physically unharmed by the attacks and that the attacks were not the

worst forms of the offense.

               There are two aspects to Kirk’s arguments. The first challenges the

individual maximum sentences on each count. The second aspect deals with the

trial court’s decision to impose the individual sentences to be consecutively served

under R.C. 2929.14(C)(4). Those arguments must be separately considered.

               The maximum sentences were imposed on each count, and therefore

under R.C. 2953.08(A), we have jurisdiction to review the sentences in this case. In

support of appellate review of his sentence, Kirk cites R.C. 2953.08(G)(2) and State

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23. Marcum

authorizes a felony sentencing review of sentences that is not expressly provided
under R.C. 2953.08(G). Marcum at ¶ 23. That statutory section sets forth the

boundaries of appellate review over felony sentences and establishes a deferential

standard of review of the findings necessary to impose certain sentences. As the

Ohio Supreme Court noted, however, “some sentences do not require the findings

that R.C. 2953.08(G) specifically addresses.”        Id.    Nevertheless, according to

Marcum, “it is fully consistent for appellate courts to review those sentences that are

imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under

a standard that is equally deferential to the sentencing court.” Id. Marcum provides

the only avenue for appellate review of Kirk’s sentence because the trial court is not

required to make findings in favor of imposing the individual prison terms on each

count, and thus under R.C. 2953.08(G)(2) as written, there is no basis to reverse a

maximum sentence.1



      1   R.C. 2953.08 (G)(2) provides:

      The court hearing an appeal under division (A), (B), or (C) of this section
      shall review the record, including the findings underlying the sentence or
      modification given by the sentencing court.

      The appellate court may increase, reduce, or otherwise modify a sentence
      that is appealed under this section or may vacate the sentence and remand
      the matter to the sentencing court for resentencing. The appellate court’s
      standard for review is not whether the sentencing court abused its
      discretion. The appellate court may take any action authorized by this
      division if it clearly and convincingly finds either of the following:

      (a) That the record does not support the sentencing court’s findings under
          division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
          section 2929.14, or division (I) of section 2929.20 of the Revised Code,
          whichever, if any, is relevant;

      (b) That the sentence is otherwise contrary to law.
              “When sentencing a defendant, the court must consider the purpose

and principles of felony sentencing set forth in R.C. 2929.11 and the serious and

recidivism factors in R.C. 2929.12.” State v. White, 8th Dist. Cuyahoga No. 106580,

2018-Ohio-3414, ¶ 7, citing State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-

Ohio-5025, ¶ 7. Consideration of the factors is presumed unless proven otherwise

by the defendant. Id. at ¶ 9, citing State v. Seith, 8th Dist. Cuyahoga No. 104510,

2016-Ohio-8302, ¶ 12, and State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and

103414, 2016-Ohio-5234. Thus, it is the trial court that possesses discretion to

sentence offenders and appellate courts must defer to the trial court’s sentencing

decision. State v. Roberts, 2017-Ohio-9014, 101 N.E.3d 1067, ¶ 20 (8th Dist.),

quoting State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10;

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

Marcum. As a result, and even under R.C. 2953.08(G) as interpreted through

Marcum, we can reverse an individual felony sentence imposed solely after

consideration of R.C. 2929.11 and 2929.12 only if we clearly and convincingly find

that the record does not support the sentence. Marcum at ¶ 23.

              In this case, as it pertains to the individual sentences, the trial court

considered all that was required by law. The sole argument advanced is that the

crimes are not the “worst form of the offense” because the victims were left

physically unharmed. The very fact that Kirk has not addressed the emotional

impact of his conduct speaks volumes. Regardless, and in consideration of the

limited arguments presented, Kirk has not demonstrated that the record does not
clearly and convincingly support the individual maximum sentences. The trial court

considered the Crim.R. 11 and 12 factors and sentencing considerations that

necessarily included Kirk’s criminal history and the emotional impact on the

victims. We cannot conclude that the record clearly and convincingly does not

support the individual, maximum sentences.

               With respect to the consecutive service issue, Kirk has not

demonstrated, let alone argued, that the R.C. 2929.14(C)(4) findings were not made

or that the findings were not clearly and convincingly supported by the record. The

only reference to “consecutive sentences” within the assigned error appears in the

heading section. He has not set forth a separate argument in support of reversing

the imposition of the consecutive sentences. Accordingly, there is no argument for

consideration. App.R. 16(A)(7). The ninth assignment of error is overruled.2

               Kirk’s convictions are affirmed.

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

      The court finds there were reasonable grounds for this appeal.

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

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

convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.



      2  In the tenth assignment of error, Kirk claims that his convictions should be
reversed based on cumulative error. We have not found multiple errors, and therefore, we
need not consider the final assignment of error.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


                                 _____
SEAN C. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR
