[Cite as State v. Johnson, 2013-Ohio-1961.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 12 CA 61
WILLIAM JOHNSON

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 2012 CR 134H


JUDGMENT:                                     Affirmed in Part; Reversed in Part and
                                              Remanded


DATE OF JUDGMENT ENTRY:                        May 10, 2013



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JAMES J. MAYER, JR.                           PATRICIA O'DONNELL KITZLER
PROSECUTING ATTORNEY                          ANDERSON WILL O'DONNELL
JOHN C. NIEFT                                 & KITZLER
ASSISTANT PROSECUTOR                          3 North Main Street
38 South Park Street                          Suite 801
Mansfield, Ohio 4402                          Mansfield, Ohio 44902
Richland County, Case No. 12 CA 61                                                       2

Wise, J.

       {¶1}   Appellant William Johnson appeals his conviction and sentence entered in

the Richland County Court of Common Pleas on one count of Abduction, one count of

Aggravated Assault, and one count of misdemeanor Assault, following a jury trial.

       {¶2}   Appellee is State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   Appellant William Johnson was indicted under two cases for events arising

out of his relationship with Tomiko Mack. The two cases were consolidated for trial,

which was held on June 11, 12, 14, 15, 18, 19, and 20, 2012.

       {¶4}   The trial consisted largely of testimony of Tomiko Mack and competing

testimony of Appellant.

       {¶5}   At trial, Mack testified to the following:

       {¶6}   Appellant and Mack met and began dating in 2009. (T. at 188). Appellant

moved in with Mack at 855 McPherson, Mansfield, Ohio, shortly after they began dating.

(T. at 191). The relationship was tumultuous and was punctuated by physical

altercations. Mack recounted an uncharged offense which occurred in 2010 where

Appellant choked her until she became unconscious. (T. at 192). On another occasion,

Appellant beat Mack in the face, leaving her with a black eye. (T. at 192-193, 918).

       {¶7}   In February, 2011, Mack asked Appellant to move out and to leave her

car, which he had been using to travel to his classes and to visit his family. (T. at 194).

When Appellant failed to do either, Mack and her sister Andrea moved Appellant's

clothes to his mother's house in Akron on a day when Appellant was at school. (T. at

194-195).
Richland County, Case No. 12 CA 61                                                  3


       {¶8}   On February 28, 2011, after Appellant failed to return her car, Mack

reported her vehicle stolen. (T. at 165-166, 198-199.)

       {¶9}   On March 2, 2011, Appellant was found and arrested at a rest area on I-

71 in Mack's car. (T. at 199, 404-407).

                                       First Incident - Mack

       {¶10} Mack testified that on March 4, 2011, at approximately 11:00 p.m., she

was returning home alone after patronizing a local bar with her sister, Andrea. (T. at

202, 320). She recounted that Appellant opened the garage door when she drove up

and approached her with a "black, block-type object" pointed at her like a gun. (T. at

202, 208, 320).    Appellant approached the car and the two of them "tussled." Id.

Appellant then took her into the garage and told her to open the man-door into the

house. Id. Mack stated that she was unable to open the door fast enough and Appellant

kicked the door in. (T. at 203, 320). Appellant then forced Mack inside and choked her

until she was unconscious. (T. at 205-210, 321).

       {¶11} Mack testified she awoke to find tape covering her mouth and her hands

bound with tape. Id. Appellant then forced her into her car and drove her to a Motel 6

near where she lived. (T. at 211, 321). Once inside the motel room, Appellant cut the

bonds on Mack’s wrists with a knife. (T. at 211). Appellant then began arguing with

Mack about her fidelity and cut Mack's arm and poked her neck, shoulder, and chest

with the knife. (T. at 213).    Appellant then apologized and put the knife away. Id.

Photographs were later taken of Mack's injuries from this incident, and she identified

these photographs at trial. (T. at 214).
Richland County, Case No. 12 CA 61                                                      4


       {¶12} After this, Mack drove Appellant back to his mother's house in Akron and

then called the police. (T. at 217-225). Officers from Mansfield Police Department

(MPD) searched the motel room and recovered a bed sheet with blood on it, which was

tested for DNA. (T. at 419, 429,744). Dawn Fryback of the MPD Crime Laboratory

testified she tested the DNA from the bed sheet. (T. at 744-745. The sheet tested

positive for human blood and Mack was the source, with Appellant being excluded as a

contributor. Id.

                                           Appellant

       {¶13} Appellant also testified about the events of the first incident. Appellant

stated he had seen Mack a few times between his release from custody on March 2nd

and March 4th. (T. at 849-853). Appellant testified that on March 4th, he was unable to

get into Mack's house with his key. While he was trying, Mack arrived home with

another man in her car. (T. at 853-855). Appellant became angry and attacked the other

man, who then fled. Id. Appellant stated that Mack was drunk and was unable to open

the side door, so Appellant kicked it in. (T. at 856). He stated that they both went into

Mack's house without issue, but once inside Mack suddenly started punching at

Appellant. (T. at 857). Appellant claimed he never struck Mack that night. (T. at 858). He

said that Mack later calmed down and wanted to accompany Appellant to his hotel

room. (T. at 859).    Once they were at the hotel, they talked about infidelity and

eventually engaged in consensual sex. (T. at 860). Appellant then recounted that after

sex, Mack injured her arm attempting to open a wine bottle with a potato peeler. (T. at

861). The remainder of Appellant's testimony substantially matched Mack's regarding

the first incident
Richland County, Case No. 12 CA 61                                                       5


                                       Second Incident - Mack

       {¶14} Mack testified that after the first incident, Appellant continued to contact

her and she eventually forgave him. (T. at 232-233). However, she stated that she and

Appellant did not date again when Appellant was released on bond from the charges of

the first incident. (T. at 238-239).

       {¶15} On February 15, 2012, Mack had dinner with Appellant to celebrate

Valentine's Day and Mack's birthday. (T. at 239). After dinner, Mack drove Appellant to

where he was staying, which was at one of his job sites, McCall's Auto Detailing. (T. at

243-244). She testified that once there, she and Appellant were talking and when

Appellant went to hug her, he shocked her with a taser. (T. at 245-246, 355). She

stated that they then "tussled" again and Appellant pulled out a small paring knife. (T. at

246, 358). Appellant then told Mack to get into the back seat or he would “gut [her] like a

pig”. (T. at 246-247, 360). Mack said that she complied and Appellant followed her into

the backseat. Id. Appellant then took Mack's cell phone to search for evidence that

Mack was cheating on him. Id. Mack stated Appellant poked her with the knife above

her pubic area. (T. at 249, 359). Appellant threatened Mack by telling her there was a

main artery was in her thigh. Id. Appellant then stabbed Mack in the neck and an

altercation erupted between them. Id. During the altercation, Mack grabbed the knife

blade with her hand, cutting it, and took the knife from Appellant. (T. at 249, 364-365).

Mack stated that she then stabbed Appellant in the lip. Id. Appellant began choking

Mack, but she did not pass out, so Appellant bound her hands and feet with duct tape.

(T. at 249-251, 363). She recounted that these events occurred around 1:00 a.m. on
Richland County, Case No. 12 CA 61                                                      6


February 16th. (T. at 253). Mack's and Appellant's phones had been ringing, but went

unanswered during this episode. (T. at 250).

       {¶16} Mack, bleeding and bound in the back of her car, began agreeing with

Appellant to keep herself alive. (T. at 254-255). Appellant contacted a friend to get a

hotel room next to Joe's Bar in Mansfield so that he and Mack could get cleaned up and

see to their injuries. (T. at 256-258, 364).

       {¶17} Once they arrived at the hotel, Appellant's friend would not leave the

room, so Appellant angrily drove the two of them to Akron. Id. Appellant drove around

Akron because he was afraid the police would be at his mother's house. (T. at 259).

Eventually, Appellant stopped at a pay phone, because both cell phones had died, and

called his brother to ask him to let them into his mother's house. (T at 262). During the

drive, Mack had managed to slip out of her bonds due to blood wetting the tape. (T. at

260). Upon arriving at Appellant's mother's house, Appellant warned Mack "don't try

anything stupid, because I won't have a problem of killing you in front of my parents" (T.

at 264).

       {¶18} Appellant's brother, Leon, opened the side door and Appellant and Mack

went into the basement of his mother's house. Id. There, both bandaged themselves

and cleaned up. Appellant changed his clothes, leaving his bloodied clothes in the

basement. (T. at 265-266). Mack testified that she was too afraid to attempt to flee. (T.

at 267). Mack says she again went along with Appellant to keep safe. She suggested to

Appellant that he take her to a motel so that they could work things out. (T. at 267).

Appellant then drove Mack to a Motel 6 nearby. (T. at 268). As Appellant was about to

turn into the parking lot, Mack found the box cutter in the back seat and she struck
Richland County, Case No. 12 CA 61                                                       7


Appellant multiple times near the temple. (T. at 269-270). Appellant stalled the car,

turned in his seat, and started to fight with Mack. (T. at 270-271). Appellant became

dazed, and Mack took the opportunity to flee into the hotel lobby vestibule. Id. The hotel

employee called 911 and Mack spoke with the police. (T. at 273-274). Mack was

permitted to wait in the locked portion of the hotel lobby, because it was 4:30 a.m. (T. at

273-275). The hotel security video confirmed Mack's entry into the lobby. (T. at 275).

The hotel employee testified that Mack was bloody and panicked when she arrived. (T.

at 483-488).

       {¶19} Copley Police Department (CPD) Officer Darrell Garner responded first to

the scene at 4:49 a.m. (T. at 628). He noted Mack's injuries, noting that some of her

injuries appeared older and were no longer bleeding. (T. at 629-631). He also observed

that Mack was gripping a box cutter and was not wearing shoes. (T. at 634-637). Mack

gave a brief statement and then was transported to the local hospital. (T. at 275-280,

501-514). Mack was treated at the hospital and her injuries were photographed. (T. at

280-288, 530). Mack made multiple statements to officers and medical personnel, all

consistent with her testimony at trial. (T. at 280-282, 284, 297, 506, 530-531, 631, 699.)

       {¶20} When Mack ran into the hotel, Appellant fled. (T. at 632). Appellant was

eventually arrested the following evening at the Motel 6 in Mansfield. (T. at 570, 586-

591, 613- 618). In the hotel room the police found Mack's purse, including her ID and

credit cards. (T. at 586- 591).

       {¶21} The physician that treated Mack at Akron General Hospital testified to her

injuries. Dr. Amir Shahideh stated that Mack had multiple abrasions and bruises to her

face, choke marks on her neck and a stab wound on the right side of her neck. (T. at
Richland County, Case No. 12 CA 61                                                      8


701). Mack was also stabbed on her left wrist and had a small abrasion in her pubic

region. Id. Dr. Shahideh stated that he was most concerned about the neck wound

because it had the highest mortality rate and was bubbling, which was indicative of

injury to the wind pipe or esophagus. (T. at 703-707). He also stated that the injuries

were no more than four hours old. (T. at 711, 725). Dr. Shahideh identified photographs

of Mack's injuries. (T. at 707- 710).

       {¶22} The physical evidence collected from the second incident included the box

cutter, Mack's clothing, a piece of duct tape recovered from Mack's clothing, and

Appellant's clothing recovered from the basement of his mother's house. (T. at 748).

       {¶23} Dawn Fryback testified that Mack was the major contributor and Appellant

was a minor contributor of DNA from the handle of the box cutter. (T. at 748-750). From

the blood on the box cutter, there was an even mixture of blood from which both Mack

and Appellant were contributors. (T. at 750-751). The blood on Mack's shirt was from

Mack alone. (T. at 751-752). The blood on Mack's jeans was hers, and a DNA mixture

that did not include Appellant. (T. at 754-754). The blood found on the strip of duct tape

was a mixture with Mack as the major contributor and Appellant as a minor contributor.

(T. at 752-753). The blood found on Appellant's shirt had Mack as the major contributor

and Appellant as the minor contributor. (T. at 755). Finally, Appellant was the only

source for the blood on Appellant's jeans. Id.

                                            Appellant

       {¶24} Appellant also testified about the second incident. Appellant’s account of

the events as to the birthday/Valentine's Day dinner on February 15th differed from that

of Mack. According to Appellant, on or around 6:00 p.m., he and Mack went to Gary's
Richland County, Case No. 12 CA 61                                                      9


Discount where she bought him a stun gun as a Valentine's Day present. (T. at 877-

878). The two then split up to take care of personal business, arriving separately at the

restaurant for dinner at between 7:00 and 8:00 p.m. (T. at 878-879). After dinner, they

drove together to Secrets bar so Appellant could work there. (T. at 881). Mack did not

stay. Id. Appellant recalled that the bar was not busy, so he stepped outside to text

"Sally," at which time "something busted [him] in the head." Id. He stated that he lost

consciousness and woke up cut and bleeding at Mack's brother's house. (T. at 882,

932-933, 935). He testified that Mack's brothers were there and they were on the phone

telling someone, "[w]e going to f**k him up." Id. Two of the brothers brandished knives

at him. (T. at 939). Appellant says that he ran out the door and down a flight of steps,

running into Mack on the street. (T. at 882-884). He stated that Mack freed his hand

and gave him a ride in her car. (T. at 993-994). Appellant identified photographs of his

injuries, cuts to face and hand/thumb. (T. at 883-884).

       {¶25} Appellant further testified that he had Mack drive him to an area in

Mansfield near a friend's house. (T. at 885). Appellant recounted that he blamed Mack

for the situation and that he put his hand in Mack's face threateningly. (T. at 891- 892).

Appellant explained that he had helped Mack's brother obtain cocaine to sell from a

dealer he knew last year, and that dealer was later killed by Mack's brother in front of

Mack and Appellant. (T. at 886- 889).

       {¶26} Appellant testified that he and Mack got into an altercation in the car,

which ended in Mack pulling a knife on him. (T. at 892). According to Appellant, he

climbed on top of Mack and wrestled with her over the knife. As Mack maneuvered, she
Richland County, Case No. 12 CA 61                                                     10


stabbed herself in the neck and wrist. (T. at 892). He stated that things settled down and

the night completed as testified to by Mack, but without any violence.

       {¶27} Appellant stated that he tried to get a hotel in Mansfield with help from a

friend, but that his friend refused to leave. (T. at 893- 894). Appellant says he and Mack

then drove to Akron, ending up at his mother's house where they cleaned themselves

up. (T. at 894-896). Appellant testified that Mack wanted to get a hotel room, so he

drove her to a Motel 6 in Akron. (T. at 897-899). During the drive, Appellant confessed

that he had slept with another woman, and Mack began attacking him with a box cutter.

Appellant claims the assault ended with Mack running into Motel 6 and Appellant driving

away. (T. at 898-900).

       {¶28} Mansfield Police Department detectives took statements from Appellant.

(T. at 1020-1024, 1033-1034).     MPD detectives also investigated the kidnapping of

Appellant by Mack's brothers the night of February 16th but failed to find any evidence.

(T. 1026-1034, 1046).

       {¶29} For the acts in the first incident, Appellant was indicted on one count of

Aggravated Burglary, in violation of R.C. §2911.11(A)(1), a felony of the first degree,

with a Firearm Specification pursuant to R.C. §2941.145 and a Repeat Violent Offender

(RVO) Specification pursuant to R.C. §2941.149; one count of Kidnapping, in violation

of R.C. §2905.01(A)(3), a felony of the first degree, with Firearm and RVO

Specifications; and one count of Abduction, in violation of R.C. §2905.02(A)(1), a felony

of the third degree, with Firearm and RVO Specifications.

       {¶30} For the acts in the second incident, Appellant was indicted on one count of

Felonious Assault, in violation of R.C. §2903.11(A)(2), a felony of the second degree;
Richland County, Case No. 12 CA 61                                                        11


one count of Attempted Murder, in violation of R.C. §2923.02(A), a felony of the first

degree; one count of Abduction in violation of R.C. §2905.02(A)(1), a felony of the third

degree; and two counts of Kidnapping, in violation of R.C. §2905.02(A)(3) and (A)(2),

felonies of the first degree. Each offense had a RVO Specification.

         {¶31} Appellant pled not guilty to both indictments, and they were combined for

trial.

         {¶32} On June 11, 2012, a jury trial commenced in this matter, lasting for seven

days. At the conclusion of trial, following deliberations, the jury returned a verdict of not

guilty on all counts in the first indictment.

         {¶33} On the second indictment, Appellant was found guilty of Abduction and

was also found guilty of the lesser included offenses of Felonious Assault: Aggravated

Assault, in violation of R.C. §2903.12(A)(1), a felony of the fourth degree, and Assault in

violation of R.C. §2903.12, a misdemeanor of the first degree.

         {¶34} Appellant was found not guilty of all other counts in the second indictment.

         {¶35} At sentencing, the trial court sentenced Appellant to the maximum

sentence on all three counts. The trial court found that the RVO Specifications did not

apply to these counts. The court ordered the sentences to run consecutive for the

Abduction and Aggravated Assault convictions, for an aggregate sentence of 54

months, with three years of post release control.

         {¶36} On October 31, 2012, the trial court issued a nunc pro tunc sentencing

entry fixing two clerical errors. The first error the court fixed was marking that it

considered the factors for consecutive sentencing pursuant to R.C. §2929.14(C)(4). The
Richland County, Case No. 12 CA 61                                                  12


second error the court fixed was to merge the allied offense of Assault into Aggravated

Assault.

      {¶37} Appellant now appeals to this Court, assigning the following errors for

review:

                             ASSIGNMENTS OF ERROR

      {¶38} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING

APPELLANT TO CONSECUTIVE SENTENCES WITHOUT MAKING CERTAIN

FINDINGS REQUIRED BY RC. 2929.14.

      {¶39} “ II. APPELLANT'S CONVICTION FOR ABDUCTION IS CONTRARY TO

THE MANIFEST WEIGHT AND SUFFICIENCY OF EVIDENCE PRESENTED AT

TRIAL, THUS DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW

UNDER      THE     FIFTH   AND   FOURTEENTH        AMENDMENTS        TO    THE    U.S.

CONSTITUTION        AND    UNDER    SECTION     10,   ARTICLE    1   OF   THE    OHIO

CONSTITUTION .

      {¶40} “III. APPELLANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL

UNDER THE U.S. AND OHIO CONSTITUTIONS WERE IMPERMISSIBLY VIOLATED

BY THE STATE'S FAILURE TO COMPLY WITH THE DISCOVERY REQUIREMENTS

OF CRIMINAL RULE 16(K).

      {¶41} “IV.    APPELLANT WAS DEPRIVED OF A FAIR TRIAL AND DUE

PROCESS OF LAW AS GUARANTEED BY THE SIXTH AMENDMENT TO THE U.S.

CONSTITUTION AND BY SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION

DUE TO THE INEFFECTIVENESS OF TRIAL COUNSEL.
Richland County, Case No. 12 CA 61                                                     13


       {¶42} “V. APPELLANT'S SENTENCE IS CONTRARY TO LAW, AS THE

OFFENSES OF AGGRAVATED ASSAULT AND ASSAULT CONSTITUTE THE SAME

OFFENSE AND THEREFORE SENTENCING ON EACH CHARGE RESULTS IN

DOUBLE JEOPARDY AS PROHIBITED BY THE FIFTH AMENDMENT TO THE U.S.

CONSTITUTION AND SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION; IN

THE ALTERNATIVE, THE CHARGES ARE MERGEABLE ALLIED OFFENSES UNDER

R.C. 2941.25.”

                                            I.

       {¶43} In his First Assignment of Error, Appellant argues that the trial court erred

in imposing consecutive sentences. We agree.

       {¶44} The law regarding consecutive sentences has recently changed. R.C.

§2929.14, effective September 30, 2011, applies to this case.

       {¶45} A court may impose consecutive sentences under R.C. §2929.14(C)(4) if it

makes the following findings: (1) consecutive sentences are necessary to protect the

public from future crime or to punish the offender and (2) that consecutive sentences

are not disproportionate to the seriousness of the offender's conduct and to the danger

the offender poses to the public, and (3) one of the following: (a) the offender committed

one or more of the multiple offenses while the offender was awaiting trial or sentencing,

was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under post-release control for a prior offense, or (b) at least two

of the multiple offenses were committed as part of one or more courses of conduct, and

the harm caused by two or more of the multiple offenses so committed was so great or

unusual that no single prison term for any of the offenses committed as part of any of
Richland County, Case No. 12 CA 61                                                         14


the courses of conduct adequately reflects the seriousness of the offender's conduct, or

(c) the offender's history of criminal conduct demonstrates that consecutive sentences

are necessary to protect the public from future crime by the offender.

        {¶46} The amendment to the consecutive sentencing statute re-established the

requirement that the sentencing judge make certain findings before imposing

consecutive sentences. See, e.g., State v. Wilson, 8th Dist. No. 97657, 2012–Ohio–

4153, ¶ 13 (court must again state its findings to support consecutive sentences at the

sentencing hearing and in the judgment entry pursuant to the new statute, citing State v.

Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, paragraph one of the syllabus); State v.

Just, 9th Dist. No. 12CA0002, 2012-Ohio-4094, ¶ 48–49 (court need not explain its

reasons for making the consecutive sentencing findings, as the new statute does not

require it); State v. Stalnaker, 11th Dist. No. 2011-L-151, 2012-Ohio-3028, ¶ 15 (trial

court must again state the required findings on the record to impose consecutive

sentences, but not its reasons supporting those findings).

        {¶47} While the new sentencing code requires the trial court to make findings to

support consecutive sentences, it does not require the court to give reasons in support

of those findings.

        {¶48} Upon review of the record, we find the trial court, in its July 2, 2012,

Sentencing Entry, failed to make the findings required by R.C. 2929.14(C)(4).

        {¶49} The trial court filed a Nunc Pro Tunc sentencing entry on October 31,

2012.

        {¶50} A trial court has authority to correct clerical errors in its judgments. Crim.R.

36. “Although trial courts generally lack authority to reconsider their own valid final
Richland County, Case No. 12 CA 61                                                        15


judgments in criminal cases, they retain continuing jurisdiction to correct clerical errors

in judgments by nunc pro tunc entry to reflect what the court actually decided. State ex

rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006–Ohio–5795, 856 N .E.2d 263, ¶ 18–

19; Crim.R. 36.” State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229.

       {¶51} The October 31, 2012, Sentencing Entry, included the trial court’s findings

in support of consecutive sentences pursuant to R.C. §2929.14(C)(4).

       {¶52} Unfortunately, the trial court issued its nunc pro tunc entry after the notice

of appeal was filed. A trial court does not have jurisdiction to amend its judgment entries

after a notice of appeal has been filed. “Although a court generally may issue a nunc pro

tunc entry any time * * * a notice of appeal divests a trial court of jurisdiction to do so.”

(Footnote omitted.) State v. Smith, 2d Dist. No. 2010–CA–63, 2011–Ohio–5986, ¶ 7;

see, also State v. Biondo, 11th Dist. No. 2009–P–0009, 2009–Ohio–7005, ¶ 18; State v.

Erlandsen, 3d Dist. No. 1–02–46, 2002–Ohio–4884; State v. Reid, 6th Dist. No. L–97–

1150, 1998 WL 636789 (Sept. 18, 1998).

       {¶53} We therefore sustain Appellant's First Assignment of Error and remand

the case to the trial court so that it may issue another nunc pro tunc entry correcting the

judgment entry to include its findings in support of consecutive sentences.

                                             V.

       {¶54} For ease of discussion, we are addressing Appellant’s assignments of

error out of order.

       {¶55} In his Fifth Assignment of Error, Appellant argues that his sentences for

aggravated assault and assault were allied offense of similar import and should

therefore have been merged. We agree.
Richland County, Case No. 12 CA 61                                                     16


       {¶56} R.C. §2941.25 defines allied offenses of similar import as follows:

       {¶57} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

       {¶58} “(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.”

       {¶59} Recently, the Ohio Supreme Court addressed the issue raised herein in

State v. Johnson, 2010-Ohio-6314, holding,

       {¶60} “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.

       {¶61} “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. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816

(Whiteside, J., concurring) (‘It is not necessary that both crimes are always committed

by the same conduct but, rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty, that the same conduct

will constitute commission of both offenses.’ [Emphasis sic] ). If the offenses correspond
Richland County, Case No. 12 CA 61                                                      17


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.

         {¶62} “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.’ Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).

         {¶63} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

         {¶64} “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.”

         {¶65} In the case sub judice, as admitted by the State, the offenses in this case

were alternatives to the same offense, which could not have been committed with

separate acts or animus.

         {¶66} The trial court failed to include the merger of the offenses in its original

sentencing entry but then corrected such omission in its Nunc Pro Tunc sentencing

entry.

         {¶67} Again, as set forth above, because the trial court filed its Nunc Pro Tunc

entry after the filing of the Notice of Appeal in this matter, we must sustain his Fifth

Assignment of Error and remand this matter to the trial court for re-sentencing.
Richland County, Case No. 12 CA 61                                                     18


                                            II.

       {¶68} In his Second Assignment of Error, Appellant claims that his conviction for

abduction was against the manifest weight and sufficiency of the evidence.            We

disagree.

       {¶69} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, ‘weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541, 1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,

485 N.E.2d 717.

       {¶70} An appellate court's function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus.

       {¶71} In the instant case, Appellant was convicted abduction:

       {¶72} The elements of abduction are set forth in R.C. §2905.02(A)(1), which

provides in pertinent part:

       {¶73} “(A) No person, without privilege to do so, shall knowingly do any of the

following:
Richland County, Case No. 12 CA 61                                                        19


       {¶74} (1) By force or threat, remove another from the place where the other

person is found;”

       {¶75} Based on the testimony of Tomiko Mack, as set forth in detail above in the

recitation of the facts, the jury in this case could have reasonably concluded that

Appellant removed her from the place where he found her.

       {¶76} Appellant’s own testimony regarding the events in question presented the

jury with sufficient evidence to find Appellant had committed such crime.

       {¶77} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Appellant had committed the crime of abduction We hold, therefore, that the state met

its burden of production regarding each element of the crime and, accordingly, there

was sufficient evidence to support Appellant's conviction.

       {¶78} “A fundamental premise of our criminal trial system is that ‘the jury is the

lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis

added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining

the weight and credibility of witness testimony, therefore, has long been held to be the

‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their

natural intelligence and their practical knowledge of men and the ways of men.’ Aetna

Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”.

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267, 140

L.Ed.2d 413.

       {¶79} Appellant cross-examined the State’s witness and further put on his own

witnesses in an attempt to rebut the State’s case.
Richland County, Case No. 12 CA 61                                                      20


       {¶80} The weight to be given to the evidence and the credibility of the witnesses

are issues for the Trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d

180, certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183.

       {¶81} The jury was free to accept or reject any and all of the evidence offered by

Appellant and the State and assess the witness's credibility. “While the jury may take

note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence”. State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP739,

citing State v. Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 Indeed, the

jurors need not believe all of a witness' testimony, but may accept only portions of it as

true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21, citing State

v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548; State v. Burke, Franklin App. No.

02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79 Ohio App.3d 667, 607

N.E.2d 1096. Although the evidence may have been circumstantial, we note that

circumstantial evidence has the same probative value as direct evidence. State v. Jenks

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492.

       {¶82} After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the convictions. The jury

did not create a manifest injustice by concluding that Appellant was guilty of the crimes

charged in the indictment. The jury heard the witnesses, evaluated the evidence, and

was convinced of Appellant's guilt.

       {¶83} We conclude the Trier of fact, in resolving the conflicts in the evidence, did

not create a manifest injustice requiring a new trial.
Richland County, Case No. 12 CA 61                                                        21


       {¶84} Based on the foregoing, we find Appellant's Second Assignment of Error

not well-taken and hereby overrule same.

                                             III.

       {¶85} In his third assignment of error, Appellant argues that the State failed to

comply with Crim.R. 16(K), thereby depriving him of his right to due process and a fair

trial. We disagree.

       {¶86} Crim.R. 16(K) states as follows:

       {¶87} “An expert witness for either side shall prepare a written report

summarizing the expert witness's testimony, findings, analysis, conclusions, or opinion,

and shall include a summary of the expert's qualifications. The written report and

summary of qualifications shall be subject to disclosure under this rule no later than

twenty-one days prior to trial, which period may be modified by the court for good cause

shown, which does not prejudice any other party. Failure to disclose the written report to

opposing counsel shall preclude the expert's testimony at trial.”

       {¶88} Appellant argues the State’s witnesses, Dawn Fryback and Amir

Shahideh, MD, testified as experts but Appellant was never given proper notice.

       {¶89} Upon review, we are not persuaded that Dr. Shahideh was actually

testifying as an expert. “It is well established that treating physicians can be called at

trial to testify as viewers of their patients' physical condition and not as experts retained

in anticipation of litigation.” Henry v. Richardson, 193 Ohio App.3d 375, 951 N.E.2d

1123, 2011–Ohio–2098, ¶ 33, citing Fischer v. Dairy Mart Convenience Stores, Inc.

(1991), 77 Ohio App.3d 543, 602 N.E.2d 1204. Even if we assume arguendo that Dr.

Shahideh had been functioning as an expert witness, we have recognized that Crim.R.
Richland County, Case No. 12 CA 61                                                      22

16(K) is subject to a “harmless error” analysis. See State v. Lewers, Stark App.No.

2009–CA–00289, 2010–Ohio–5336, ¶ 125–¶ 128. In the case sub judice, particularly in

light of Mack’s and Appellant’s own testimony, we would find the lack of Dr. Shahideh’s

formal report to be harmless beyond a reasonable doubt.

       {¶90} Upon review of the testimony of Dawn Fryback from the crime lab, we do

not find her testimony as to the presence of DNA on Appellant’s shirt, Mack’s pants and

the strip of duct tape was prejudicial to Appellant because Appellant’s own testimony

supported the presence of DNA on these items.

       {¶91} Further, we note that Appellant has waived this issue as he failed to raise

any alleged discovery violations prior to or during the trial in this matter. Further, upon

review of the transcript, we find Appellant failed to object to the qualifications and/or

testimony of either witness.

       {¶92} Appellant’s Third Assignment of Error is overruled.

                                            IV.

       {¶93} In his Fourth Assignment of Error, Appellant argues that he was denied

the effective assistance of counsel. We disagree.

     {¶94} More specifically, Appellant claims that his counsel was ineffective for failing

to object to the introduction of expert witnesses Dawn Fryback and D. Amir Shahideh,

and further for failure to request merger of the assault charge into the aggravated

assault charge.

     {¶95} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's
Richland County, Case No. 12 CA 61                                                         23


essential duties to Appellant. The second prong is whether Appellant was prejudiced by

counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838, 122

L .Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

     {¶96} In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties

inherent in determining whether effective assistance of counsel was rendered in any

given case, a strong presumption exists that counsel's conduct fell within the wide range

of reasonable, professional assistance. Id.

     {¶97} In order to warrant a reversal, Appellant must additionally show he was

prejudiced by counsel's ineffectiveness. This requires a showing that counsel's errors

were so serious as to deprive the defendant of a fair trial; a trial whose result is reliable.

Strickland 466 U.S. at 687, 694, 104 S.Ct. at 2064; 2068. The burden is upon the

defendant to demonstrate that there is a reasonable probability that but for counsel's

unprofessional errors, the result of the proceeding would have been different. Id.;

Bradley, supra at syllabus paragraph three. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Strickland, supra; Bradley, supra.

     {¶98} Having found Appellant’s argument as to testimony of Dawn Fryback and

Dr. Shahideh is without merit, we do not find Appellant’s defense counsel’s performance

was deficient for failing to object to same.

     {¶99} Appellant also argues that his counsel was ineffective for failing to argue

that the charges of assault and aggravated assault should have been merged. As set
Richland County, Case No. 12 CA 61                                                      24


forth in our analysis of Appellant’s Fifth Assignment of Error, the trial court did in fact

merge Appellant’s sentences for these two offenses and ran the sentences

concurrently.   The trial court failed to include the merger language in its original

sentencing entry and attempted to correct this error in its nunc pro tunc sentencing

entry. Upon remand for resentencing, this error will be corrected with the new nunc pro

tunc sentencing entry.

     {¶100} Based on the foregoing, we do not find Appellant’s trial counsel was

ineffective.

     {¶101} Appellant’s Fourth Assignment of Error is overruled.

     {¶102} Accordingly the judgment of the Court of Common Pleas of Richland

County, Ohio, is affirmed in part, reversed in part, and remanded for further proceedings

consistent with the law and this opinion.


By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.



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                                             ___________________________________


                                             ___________________________________

                                                                 JUDGES
JWW/d 0422
Richland County, Case No. 12 CA 61                                                    25


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :          JUDGMENT ENTRY
                                            :
WILLIAM JOHNSON                             :
                                            :
       Defendant-Appellant                  :          Case No. 12 CA 61




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed in part,

reversed in part and remanded for further proceedings consistent with this opinion.

       Costs to be split evenly between the parties.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
