[Cite as State v. Halstead, 2016-Ohio-290.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102723




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                             SHANNON W. HALSTEAD
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                            AFFIRMED IN PART,
                      REVERSED AND REMANDED IN PART


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-588993-A

        BEFORE: Laster Mays, J., Jones, A.J., and Celebrezze, P.J.

        RELEASED AND JOURNALIZED:                   January 28, 2016
                              -i-



ATTORNEY FOR APPELLANT

Christopher M. Kelley
75 Public Square, Suite 700
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Fallon Radigan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J:

       {¶1} Defendant-appellant Shannon Halstead (“Halstead”) was convicted of

felonious assault, in violation of R.C. 2903.11(A)(1), a second-degree felony, felonious

assault, in violation of R.C. 2903.11(A)(2), a second-degree felony, kidnapping, in

violation of R.C. 2905.01(A)(3), a first-degree felony, and theft, in violation of R.C.

2913.02(A)(1), a first-degree misdemeanor.      The trial court sentenced Halstead to five

years imprisonment on the two felonious assault convictions, five years imprisonment on

the kidnapping conviction, and six months imprisonment on the theft conviction. All

three sentences were to be run concurrently giving Halstead a total of five years

imprisonment.

       {¶2} After a review of the record, assignment of errors one and two are overruled.

We sustain assignment of error three, Halstead’s judgment of conviction is reversed, and

this case is remanded to the trial court for resentencing on the merged counts.

       {¶3} Halstead assigns three errors for our review.

       I.      The appellant’s convictions for felonious assault, kidnapping, and
       theft were against the manifest weight of the evidence.

       II.    The trial court erred in giving a flight instruction to the jury because
       there was no evidence showing the appellant took affirmative steps to evade
       detection and apprehension by the police.

       III.     The trial court erred in failing to merge the appellant’s convictions
       for felonious assault and kidnapping.
I.      Facts and Procedural Posture

        {¶4} Halstead and the victim met on the bus when they were both returning home

from their jobs.      The victim was looking to purchase marijuana, and Halstead claimed

that he knew someone that could sell it to the victim. In addition to purchasing the

marijuana, the victim offered to help Halstead apply for a job at Olive Garden, where the

victim worked.        Because the application was online and, according to the victim,

Halstead was unfamiliar with computers, he agreed to go to Halstead’s home and assist

him in filling out the online application.

        {¶5} The victim testified that after he and Halstead got off the bus, Halstead

robbed him at knife-point.       Halstead demanded the victim’s chain, cell phone, and

wallet, but the victim refused to give him the items. Halstead then knocked the victim to

the ground and slashed his throat with the knife. During this altercation, a neighbor

witnessed the fight, and threatened to release her dogs to stop the men from fighting.

The neighbor testified that Halstead ran away down the street and the victim asked her for

help.

        {¶6} When the victim was interviewed by the police, he described Halstead and

picked him out of a photo array. The police also got a physical description of Halstead

after viewing the surveillance video from the bus.    Halstead was arrested three months

later and found guilty of felonious assault, kidnapping, and theft. As a result, he filed

this timely appeal.
II.    Manifest Weight of the Evidence

       {¶7} In reviewing a claim challenging the manifest weight of the evidence, the

question to be answered is whether:

       there is substantial evidence upon which a jury could reasonably conclude
       that all the elements have been proved beyond a reasonable doubt. In
       conducting this review, we must examine the entire record, weigh the
       evidence and all reasonable inferences, consider the credibility of the
       witnesses, and determine whether the jury clearly lost its way and created
       such a manifest miscarriage of justice that the conviction must be reversed
       and a new trial ordered. (Internal citations and quotations omitted.)

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.

       {¶8} “Although a court of appeals may determine that a judgment of a trial court is

sustained by sufficient evidence, that court may nevertheless conclude that the judgment

is against the weight of the evidence.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997).

       “Weight of the evidence concerns the inclination of the greater amount of
       credible evidence, offered in a trial, to support one side of the issue rather
       than the other. It indicates clearly to the jury that the party having the
       burden of proof will be entitled to their verdict, if, on weighing the evidence
       in their minds, they shall find the greater amount of credible evidence
       sustains the issue which is to be established before them. Weight is not a
       question of mathematics, but depends on its effect in inducing belief.”

(Emphasis added.) Thompkins at 387.

       {¶9} “When a court of appeals reverses a judgment of a trial court on the basis that

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

juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”
Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652

(1982).

       {¶10} In his first assignment of error, Halstead argues that his convictions were

against the manifest weight of the evidence. “A manifest weight challenge questions

whether the state met its burden of persuasion at trial.” State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12.

       Although an appellate court reviews credibility when considering the
       manifest weight of the evidence, the credibility of witnesses and the weight
       of the testimony are primarily for the trier of fact. The trier of fact is best
       able to view the witnesses and observe their demeanor, gestures, and voice
       inflections, and use these observations in weighing the credibility of the
       proffered testimony.

State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26, quoting State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.

       {¶11} Halstead argues that because there was not any physical evidence placing

him at the scene of the attack on the victim, he should not have been convicted.         He

argues that the victim’s testimony was inconsistent and false. The victim testified that

Halstead used a knife to rob him of his chain and cell phone, but both of those items were

found with the victim. The victim claims that Halstead ripped the box cutter from his

hand, but DNA testing of the box cutter determined that only victim’s DNA was on the

box cutter.   The victim gave the police a description of the man who attacked him and

described him as 5'7" wearing a white shirt, blue jeans, and carrying a red bag. Halstead

is 6'1", was wearing a green sweatshirt, and not carrying a bag.
          {¶12} However eyewitness testimony places Halstead at the scene and as the one

who attacked the victim. Halstead’s girlfriend’s aunt testified that Halstead told her that

he stabbed the victim in self-defense.       The victim testified that Halstead was the one

who stabbed him.       Because of these testimonies, the trier of fact, the jury, weighed the

credibility of each witness and determined that the weight of the evidence was substantial

enough to convict Halstead. His first assignment of error is overruled.

III.      Incorrect Jury Instruction

          {¶13} In his second assignment of error, Halstead argues that the trial court erred

in giving a flight instruction to the jury because there was no evidence showing that he

took affirmative steps to evade detection and apprehension by the police.      “The giving of

jury instructions is within the sound discretion of the trial court, and the appellate court

can review it for an abuse of discretion.” State v. Howard, 8th Dist. Cuyahoga No.

100094, 2014-Ohio-2176, ¶ 35. In this case, the trial court gave the following jury on

flight:

          There may be evidence in this case to indicate that the defendant fled from
          the scene of the crime. Flight does not, in and of itself, raise a
          presumption of guilt, but may show consciousness of guilt or a guilty
          connection with the crime. If you find that the defendant did flee from the
          scene of this crime, you may consider the circumstance in your
          consideration of guilt or lack of guilt of the defendant. Tr. at 391.

          {¶14} “Similar versions of this flight instruction have been upheld by this court in

numerous cases, including State v. Gibson, 8th Dist. Cuyahoga No. 98725,

2013-Ohio-4372, State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762,

¶ 55, and State v. Hamilton, 8th Dist. Cuyahoga No. 86520, 2006-Ohio-1949.” Howard
at ¶ 44. However, the instructions given in those cases were upheld because the evidence

demonstrated that the instruction was warranted. Id. But this court has held that,

       a mere departure from the scene of the crime is not to be confused with
       deliberate flight from the area in which the suspect is normally to be found.
       It must be clear that the defendant took affirmative steps to avoid detection
       and apprehension beyond simply not remaining at the scene of the crime for
       purposes of a flight instruction.

 State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 45.

       {¶15} Recently this court held in State v. Johnson, 8th Dist. Cuyahoga No. 99715,

2014-Ohio-2638, ¶ 110, that the defendant’s conduct of leaving the scene of the crime did

not warrant a flight instruction because there was no evidence of deliberate flight in the

sense of evading police. See also State v. Wesley, 8th Dist. Cuyahoga No. 80684,

2002-Ohio-4429 (flight instruction not warranted based on insufficient evidence). Much

like in Johnson, the evidence in this case did not warrant a flight instruction.   Halstead’s

leaving the scene was not deliberate flight in the sense of evading police and detection.

There is not any evidence that Halstead was evading the police.            That state’s only

assertion to support that Halstead evaded the police is that he left the scene of the crime.

We find that is not enough.

       {¶16} Despite the court’s error, we cannot say, nor has Halstead demonstrated, that

the error was prejudicial.    “A reviewing court may not reverse a conviction in a criminal

case due to jury instructions unless it is clear that the jury instructions constituted

prejudicial error.” Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 49.

“In order to determine whether an erroneous jury instruction was prejudicial, a reviewing
court must examine the jury instructions as a whole.”          Id.   “A jury instruction

constitutes prejudicial error where it results in a manifest miscarriage of justice.

Conversely, any error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.” Id.

       {¶17} Reviewing the jury instructions as a whole, we cannot say that the trial

court’s instruction on flight was prejudicial, such that a manifest miscarriage of justice

occurred. The instruction given, although improper, allowed the jury to make its own

conclusions on flight and to consider whether Halstead left the scene and, if so, his

motivation for leaving. Thus, the instruction did not change the underlying facts of the

case; the instruction was harmless beyond a reasonable doubt.          Halstead’s second

assignment of error is overruled.

IV.    Merged Convictions

       {¶18} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Ohio Supreme Court recently clarified the test a trial court and a reviewing court must

employ in determining whether offenses are allied offenses that merge into a single

conviction, stating:
       When the defendant’s conduct constitutes a single offense, the defendant
       may be convicted and punished only for that offense. When the conduct
       supports more than one offense, however, a court must conduct an analysis
       of allied offenses of similar import to determine whether the offenses merge
       or whether the defendant may be convicted of separate offenses. R.C.
       2941.25(B). A trial court and the reviewing court on appeal when
       considering whether there are allied offenses that merge into a single
       conviction under R.C. 2941.25(A) must first take into account the conduct
       of the defendant. In other words, how were the offenses committed? If
       any of the following is true, the offenses cannot merge and the defendant
       may be convicted and sentenced for multiple offenses (1) the offenses are
       dissimilar in import or significance — in other words, each offense caused
       separate, identifiable harm; (2) the offenses were committed separately, and
       (3) the offenses were committed with separate animus or motivation. At
       its heart, the allied-offense analysis is dependent upon the facts of a case
       because R.C. 2941.25 focuses on the defendant’s conduct. The evidence
       at trial or during a plea or sentencing hearing will reveal whether the
       offenses have similar import. When a defendant’s conduct victimizes
       more than one person, the harm for each person is separate and distinct, and
       therefore, the defendant can be convicted of multiple counts. Also, 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.
       We therefore hold that two or more offenses of dissimilar import exist
       within the meaning of R.C. 2941.25(B) when the defendant’s conduct
       constitutes offenses involving separate victims or if the harm that results
       from each offense is separate and identifiable.

Id. at ¶ 24-26.

       {¶19} In his third assignment of error, Halstead argues that the trial court erred in

failing to merge his convictions for felonious assault and kidnapping.         In order to

determine whether offenses should merge as the same offense, it must first be determined

if each offense caused separate or identifiable harm, were committed separately, or were

committed with separate animus or motivation. The state argues that while Halstead was

stabbing the victim, because he was on top of the victim, he restrained his movements,
thereby kidnapping him. We disagree with the state’s assertion. The kidnapping and

felonious assault were part of the same animus and caused the same harm.                 These

offenses were not committed separately but rather at the same time.          Therefore, these

offenses should be merged.

       {¶20} The trial court incorrectly sentenced Halstead to five years for both the

felonious assault convictions and kidnapping convictions, and ran the sentences

concurrently.

       If, upon appeal, a court of appeals finds reversible error in the imposition of
       multiple punishments for allied offenses, the court must reverse the
       judgment of conviction and remand for a new sentencing hearing at which
       the state must elect which allied offense it will pursue against the defendant.
       On remand, trial courts must address any double jeopardy protections that
       benefit the defendant.

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25.

Therefore, we reverse the judgment conviction and remand for a new sentencing hearing,

at which the state must elect which allied offense it will sentence Halstead.

       {¶21} Judgment affirmed in part, reversed and remanded in part to the lower court

for further proceedings consistent with this opinion.

       It is ordered that appellee and appellant split 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.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



____________________________________________
ANITA LASTER MAYS, JUDGE

LARRY A. JONES, SR., A.J., and
FRANK D. CELEBREZZE, JR., P.J., CONCUR
