[Cite as State v. Long, 2014-Ohio-4416.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      OPINION

                 Plaintiff-Appellee,                :
                                                           CASE NO. 2013-L-102
        - vs -                                      :

STACEY R. LONG,                                     :

                 Defendant-Appellant.               :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 13 CR
000241.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).

Matthew C. Bangerter, P.O. Box 148, Mentor, OH 44061 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the Lake County Court of Common Pleas. Stacey

 Long was convicted by a jury of kidnapping, a first-degree felony in violation of R.C.

 2905.01(A)(3), felonious assault, a second-degree felony in violation of R.C.

 2903.11(A)(1), and domestic violence, a third-degree felony in violation of R.C.

 2909.04(A)(1).       On appeal, Long challenges the admission on an alleged hearsay

 statement, the trial court’s denial of his motion for substitute counsel, the sufficiency

 and manifest weight of the evidence, whether his convictions of kidnapping and
felonious assault merge for sentencing purposes and whether his sentence is contrary

to law. For the following reasons, we affirm.

      {¶2}   On Thursday March 7, 2013, Donna Palmatier went to Wendy's at about

7:30 p.m. with Marilyn Price and her daughter. The three of them stayed there for

about an hour and a half. Price testified that during their trip, Palmatier did not have

bruises on her face and that Palmatier had a regular demeanor. Price dropped

Palmatier off at Palmatier’s residence at some point between 9:15–10:00 p.m.

      {¶3}   The rooms in Palmatier’s third-floor apartment are organized as the

following. Upon entering the apartment to the right is a full bathroom, and further back

is a bedroom. To the left of the entrance is the kitchen. In the back of the apartment is

a large living room, and at the very back of the living room is a sliding glass door that

leads to a balcony. At some point after Palmatier arrived at her apartment, Long, who

resided and was in a romantic relationship with Palmatier, entered and demanded that

Palmatier make him a hamburger. When Palmatier refused, Long said that he could

find someone else to make the hamburger. In turn, Palmatier suggested to Long that

he leave the key to her apartment and find that other person. Palmatier then went to

the bedroom.

      {¶4}   Shortly thereafter, in the bedroom, Long approached Palmatier and

started pulling her hair. Palmatier attempted to flee from him and to use her cell phone

to call the police. Palmatier made it either to her bedroom door or the front door;

however, Long closed the door, grabbed her phone and threw the phone away. The

phone landed on the floor resulting in the battery coming out. Long then proceeded to

pick her up, throw her and slam her head into the couch in the living room. Palmatier




                                           2
was unsure whether Long picked her up and threw her before he slammed her head

into the couch.

      {¶5}   Long tore Palmatier’s pants off, pulled her sweatshirt over her head, and

punched her three times in the head. Long then “took” her to the balcony and said he

was going to throw her off it, and that she would land on his friend’s truck resulting in

her becoming severely disabled. Palmatier testified that she constantly struggled to

prevent Long from opening the sliding door leading to balcony. Palmatier was able to

escape and ran toward the dining room table, but only made it to the kitchen floor.

While she was on her stomach on the kitchen floor, Long pulled her toward himself, sat

on top of her holding a knife and said, “I could cut your jugular vein. Look up because

this is the last you’re going to see.” Palmatier continued to struggle to get away from

Long. Eventually, Palmatier turned to face him and asked, “What do you want me to

do? I’ll do anything you want me to do.” Long replied by proclaiming, “This is what I

could do to you.” He then moved the knife to her chest.

      {¶6}   Long helped her to her feet, put an icepack on her head and moved her to

the bedroom where she could lay down. Palmatier testified that at this point her head

felt like lead and she was unable to move her head. Long told her that she could call

the police now; however, Palmatier did not call the police because she was afraid of

provoking Long again. When Palmatier told Long that she thought that she had a

concussion, Long told her that she did not have one because he intentionally hit her in

locations that would not lead to a concussion.

      {¶7}   Upon waking in the morning on Friday March 8, Palmatier was lethargic

and could not move her head. At some point, Palmatier sent a text message to her

daughter Amy Beauchamp telling her that she was not feeling well and that therefore


                                           3
Beauchamp should not pick her up. Beauchamp was planning on driving Palmatier

back to Michigan to babysit Beauchamp’s children for the weekend. When Beauchamp

called and asked if she could stop by Palmatier’s apartment and visit, Palmatier

rebuffed her.

      {¶8}   Concerned, Beauchamp went to the Willowick Police Department and

asked them to check on her mother.          Officers Gregory Williams and Chris Olp

accompanied Beauchamp to her mother’s apartment. Long answered the knock on the

door; however, when Beauchamp looked inside the apartment, she saw her mother

with bruises on her face and asked, “What happened to you?” Beauchamp began to

cry and yell. Consequently, the police told her to wait outside the apartment.

      {¶9}   After separating Long and Palmatier, Officer Williams asked Palmatier

how she received her injuries. Palmatier was not forthcoming with details about her

injuries, but she packed some items into an overnight bag and then left the apartment

with the police officers and Beauchamp. Upon reaching the outside where the lighting

was better, both Beauchamp and Williams realized Palmatier’s injuries were more

extensive than previously realized. The pictures taken by police reveal swelling around

both eyes, with the left eye having a bad bruise that extends well beyond the perimeter

of her eye socket. The pictures also revealed bruising around the left check and the

right eye has also sustained bruising.

      {¶10} When Officer Williams asked Palmatier if she wanted to press charges,

Palmatier replied that she did not. She also indicated that she did not want medical

care. Beauchamp however indicated that she believed her mother looked dazed and

that she was at risk of falling. Beauchamp eventually persuaded her mother to visit the

hospital; however, the police requested that Palmatier speak with them before going to


                                           4
the hospital. At the police station, more pictures were taken where her left eye appears

blood-red. Palmatier again refused to press charges and declined to provide a written

statement to the police. Officer Williams testified that it did not surprise him that a

victim of domestic violence would not want to file charges.

        {¶11} Eventually, Palmatier was taken to Lake West Hospital.                     When doing

intake triage, Palmatier told Adam Ridenour, an emergency room nurse, that she was

suffering from dizziness and that she could not tell if she had lost consciousness.

Ridenour indicated that an inability to distinguish whether one lost consciousness is

usually an indication that the person had lost consciousness. When he asked more

about the injuries, she told him that she was assaulted by her boyfriend by being

pushed down and repeatedly punched. Ridenour testified that Palmatier complained of

back pain and rib pain. Ridenour further testified that when he asked Palmatier to rate

her pain on a scale of one to ten, she said her current pain level was at an eight.

During the worst part of her assault, she said her pain level was a 10.

        {¶12} Dr. John Maxfield examined Palmatier. He testified that her chief

complaint was vertigo which started 18 hours before seeing him.1 She also stated that

her memory was failing her and she was somehow struck in the chest and she had

been struck by a fist. Dr. Maxfield testified that Palmatier had two black eyes and

some tenderness over the left check, left lateral chest wall tenderness, and midline

tenderness on her neck. Dr. Maxfield indicated that Palmatier suffered a concussion

from a blow to the head and a “probable rib fracture.” Dr. Maxfield gave her meclizine

for the vertigo and promethazine for the nausea, and told Palmatier to follow up with a



1. Maxfield examined Palmatier at some point in the late afternoon on Friday. Thus, 18 hours prior to his
examination would be close to end of the day Thursday or early morning Friday.


                                                   5
doctor if her symptoms worsened. Palmatier would stay with at Beauchamp’s house

for several weeks. During her recovery, Palmatier testified she had difficulty breathing,

sitting in certain positions, and could not wear a bra.

      {¶13} At some point after the Lake County Prosecutor’s Office became involved

with the incident, Long sent Palmatier a letter that began as follows: “If you remember

that affidavit I did for Mike and Cassy for one of their many situations, same thing.

Simply state that “I, Stacey Long, did not harm or attempt to harm you on or about

3/7/13.’ Anything you said contrary prior (sic) was under duress.” The letter then

instructed Palmatier how to properly notarize the statement with witnesses, told

Palmatier to make three copies of the affidavit and send the copies to the clerk of

courts. The letter also indicated that “another way” was for Palmatier not to sign for

any certified mail and “just don't come.” Because a bailiff would be sent to serve

Palmatier, the letter asked her not to open up the door to unexpected guests. The

letter closes by instructing, “If you end up here, simply state you don't remember and

plead the fifth and state you were under duress when you spoke with the police. Throw

this out after you read it.” Palmatier disregarded the final instruction and handed the

letter over to the prosecutor’s office.

      {¶14} The state also presented clips of phone calls that Long made from jail to

his sister.   The clips concern Long’s desire for Palmatier not to participate in the

proceedings. At one point Long acknowledges that his actions reflected misplaced

anger that he took out on Palmatier. During their conversation his sister stated, “Yeah,

she - you basically jacked her up so bad. I was just so hurt. Damn.” Long replied,

“Yeah, yeah, but like I said.” In the last clip, Long states, “if she was to participate with

these folks here, it would be a wrap, sis, you know?”


                                             6
      {¶15} Long did not present any witnesses or evidence, and he did not testify on

his behalf.   Rather, the defense sought to show that Palmatier’s injuries were not

serious. Specifically, the defense repeatedly procured testimony that she never called

the police despite having access to the phone in a room where Long was not present

and that she did not tell her daughter or the police what happened to her when they

arrived at the apartment. Palmatier also testified that her injuries were not serious

enough that she needed to go to the hospital before she gave a statement to the police

and turned down the police’s offer for an ambulance. Officer Williams testified that

when he saw Palmatier she was not crying, hyperventilating or in obvious pain. Officer

Williams further testified that Palmatier did not ask for any medical treatment, and was

able to walk and speak and think clearly. Finally, Dr. Maxfield indicated that he only

knew that the probable rib fracture occurred in the past six weeks, and that it was

possible, though unlikely, that Palmatier’s vertigo was caused by an upper respiratory

infection.

      {¶16} The sentencing court determined that the convictions for domestic

violence and felonious assault merged for the purpose of sentencing; however, the

court found that the convictions for felonious assault and kidnapping did not merge for

sentencing purposes. The sentencing court imposed a ten-year sentence for

kidnapping, a four-year sentence for felonious assault to be served concurrently, and

notified Long that any post-release control would last for five years.

      {¶17} As his first assignment of error Long asserts that:

      {¶18} “The trial court erred to the prejudice of the Defendant-Appellant when it

allowed the jury to hear prejudicial and unreliable evidence.”




                                            7
      {¶19} Within this assignment of error, Long argues that the admission of his

sister’s statement “you basically jacked her up so bad[]” was impermissible hearsay

that violates the rules of evidence and Sixth Amendment right to confront witnesses.

The state argues that Long’s reply to his statement of “Yeah, yeah * * *” makes the

otherwise hearsay statement an adoptive admission. The state also contends that if

the statement was hearsay, it was harmless error.

      {¶20} “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of

the syllabus.   The term “abuse of discretion” is one of art, “connoting judgment

exercised by a court which neither comports with reason, nor the record.” State v.

Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30.                When an

appellate court is reviewing a pure issue of law, “the mere fact that the reviewing court

would decide the issue differently is enough to find error[.] * * * By contrast, where the

issue on review has been confined to the discretion of the trial court, the mere fact that

the reviewing court would have reached a different result is not enough, without more,

to find error.” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶67.

Errors of law, however, are reviewed de novo. State v. Loomis, 11th Dist. Ashtabula

No. 2002-A-0102, 2005-Ohio-1103, ¶8. Because Long’s trial counsel failed to object to

the admission of the alleged hearsay statement, he has waived all but plain error.

State v. Bennett, 11th Dist. Ashtabula No. 2002-A-0020, 2005-Ohio-1567, ¶55.

      {¶21} Evid.R. 801(C) defines hearsay as a “statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Hearsay evidence is generally inadmissible. Evid.R. 802.

An adoptive admission is defined as “a statement of which the party has manifested an


                                           8
adoption or belief in its truth” and is explicitly exempted from the definition of hearsay.

Evid.R. 801(D)(2)(b).       “In order for an adoptive admission to be applicable, the

declarant must have made the statement in the presence of the party against whom the

statement is offered at trial. In addition, the party must have heard and understood the

statement, must have been free to disavow it, and must have either expressly

acknowledged the truth of the statement or remained silent when a reasonable person

would have denied its truthfulness.” State v. Comstock, 11th Dist. Ashtabula No. 96-A-

0058, 1997 Ohio App. LEXIS 3670, *13-14 (Aug. 15, 1997). The requirement that an

adoptive admission take place in the presence of the party does not exclude phone

conversations between the declarant and the party. United States v. Woods, 301 F.3d

556, 562 (7th Cir. 2002).

      {¶22} Here, the declarant, Long’s sister, made the statement in a phone

conversation to which Long replied, “Yeah, yeah * * *.” The recording was remarkably

clear and there was no indication that Long could not hear or understand his sister.

The tone of his voice in saying, “Yeah, yeah” signified that he was acknowledging the

statement as true. Therefore, the statement could come in as an adoptive admission.

      {¶23} Long further argues that the statement should have been excluded under

Evid.R. 403(A) because the statement was “highly prejudicial and, without foundation,

corroboration, or confrontation, [and] of no probative value whatsoever.” He further

argues that the statement was particularly prejudicial in this case because it was

presented to the jury as an exhibit, thereby allowing the jury to repeatedly hear the

statement during deliberations. Evid.R. 403(A) states that “[a]lthough relevant,

evidence is not admissible if its probative value is substantially outweighed by the

danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”


                                            9
      {¶24} Though Long notes that the prosecution emphasized the sister’s

statement twice in closing argument, the prosecutor’s reference to the statement was

always followed by Long’s statement acknowledging the truth of the assertion.

Therefore, the prosecution always used the statement as an adoptive admission, as

opposed to an out of context hearsay statement. Furthermore, Evid.R. 403(A) only

excludes evidence that is unfairly prejudicial to the defendant. This adoptive admission

is damaging evidence against Long, but there is nothing unfair about its admission.

The claim that the statements were uncorroborated is frivolous considering the

testimony of the state’s witnesses.

      {¶25} Finally, the statement was properly authenticated. “Evid.R. 901 governs

the authentication of demonstrative evidence, including recordings of telephone

conversations. The threshold for admission is quite low, and the proponent of the

evidence need only submit ‘evidence sufficient to support a finding that the matter in

question is what its proponent claims.’ Evid.R. 901(A). ‘[T]he proponent must present

foundational evidence that is sufficient to constitute a rational basis for a jury to decide

that the primary evidence is what its proponent claims it to be.’ State v. Tyler, 196 Ohio

App.3d 443, 2011-Ohio-3937, 964 N.E.2d 12, ¶25, citing State v. Payton, 4th Dist. No.

01-CA2606, [2002-Ohio-508, 2002 Ohio App. LEXIS 496 (Jan. 25, 2002)].” State v.

Thompson, 8th Dist. Cuyahoga No. 96929, 2012-Ohio-921, ¶27. “Identification of a

voice, whether heard firsthand or through mechanical or electronic transmission or

recording, by opinion based upon hearing the voice at any time under circumstances

connecting it with the alleged speaker” is sufficient to authenticate a recording. Evid.R.

901(B)(5). Here, Palmatier identified the voices on the clips as belonging to Long and




                                            10
his sister. Therefore, the recording was authenticated, laying the foundation for its

admission.

      {¶26} Consequently, the trial court did not err in admitting the sister’s statement.

The first assignment of error is without merit.

      {¶27} As his second assignment of error, Long asserts that:

      {¶28} “Defendant-Appellant was denied effective assistance of counsel in

violation of the Sixth Amendment of the United States Constitution.”

      {¶29} In order to prevail on a claim of ineffective assistance of counsel, appellant

must establish that: (1) the performance of defense counsel was seriously flawed and

deficient; and (2) the result of appellant's trial would have been different if defense

counsel had provided proper representation. See Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We are to be highly deferential in our

review of trial counsel's performance. Id. at 689. Moreover, it is well-settled that

counsel benefits from a strong presumption of competence. See State v. Smith, 17

Ohio St.3d 98, 100, 17 Ohio B. Rep. 219, 477 N.E.2d 1128 (1985). In other words,

defense counsel is not ineffective unless his or her performance fell below an objective

standard of reasonable representation, and the defendant is prejudiced from that

performance. State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).

Nevertheless, analysis of whether counsel's performance was deficient is not

necessary if a claim can be disposed of by showing a lack of sufficient prejudice. Id.

      {¶30} Here, Long asserts that his trial counsel’s failure to object to the admission

of the sister’s statement discussed in the first assignment of error amounted to

ineffective assistance of counsel. Because we found there was no error in admitting




                                            11
the sister’s statement, trial counsel was not deficient in failing to object to the

statement. Consequently, the second assignment of error is without merit.

        {¶31} As his third assignment of error, Long asserts that:

        {¶32} “The trial court erred to the prejudice of the defendant-appellant when it

denied his request for substitute counsel.”

        {¶33} “As a general proposition, an indigent criminal defendant does not have a

constitutional right to choose the attorney who will represent him at the expense of the

state; rather, he is only entitled to competent legal representation. State v. Horn, 6th

Dist. No. OT-03-016, 2005-Ohio-5257, at ¶11. As a result, the request of a defendant

to discharge his court-appointed counsel will be granted only if he can ‘show a

breakdown in the attorney-client relationship of such a magnitude as to jeopardize the

defendant's right to effective assistance of counsel.’ State v. Coleman (1988), 37 Ohio

St.3d 286, 525 N.E.2d 792, paragraph four of the syllabus.           See, also, State v.

Henness (1997), 79 Ohio St.3d 53, 65, 1997-Ohio-405, 679 N.E.2d 686.

        {¶34} “In applying the foregoing basic standard, the courts of this state have

recognized three examples of good cause which would warrant the discharge of court-

appointed counsel: (1) a conflict of interest; (2) a complete breakdown of

communication; and (3) an irreconcilable conflict which could cause an apparent unjust

result. Horn, 2005-Ohio-5257, at ¶11, quoting State v. Blankenship (1995), 102 Ohio

App.3d 534, 558, 657 N.E.2d 559. In light of the nature of the three examples, it has

been further held that the substitution of counsel should be allowed only if extreme

circumstances exist. State v. Glasure (1999), 132 Ohio App.3d 227, 239, 724 N.E.2d

1165.




                                              12
      {¶35} “In regard to a possible breakdown of the attorney-client relationship due

to a lack of communication, the Supreme Court of Ohio has expressly said that the

Sixth Amendment right to counsel was not intended to guarantee that a criminal

defendant will have a ‘rapport’ with his attorney. Henness, 79 Ohio St.3d at 65, citing

Morris v. Slappy (1983), 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610. Accordingly,

the existence of hostility or a personal conflict between the attorney and the defendant

does not constitute a total breakdown so long as it does not inhibit the attorney from

both preparing and presenting a competent defense. State v. Meridy, 12th Dist. No.

CA2003-11-091, 2005-Ohio-241; State v. Mayes, 4th Dist. No. 03CA9, 2004-Ohio-

2027. Moreover, the lack of communication must be permanent in nature before a

finding of a complete breakdown can be made. State v. Evans, 153 Ohio App.3d 226,

2003-Ohio-3475, at ¶32, 792 N.E.2d 757. Finally, a dispute over the trial tactics or

strategy of the attorney is not sufficient to establish the requisite breakdown.” Id. State

v. Jackson, 11th Dist. Trumbull No. 2004-T-0089, 2006-Ohio-2651, ¶43-45.

      {¶36} Long filed two motions for ineffective assistance of counsel, and the trial

court construed them as motions for substitute counsel.         In the first motion, Long

complained that his trial counsel waived his preliminary hearing and that decision

deprived him of his opportunity to cross-examine Palmatier, that there was a procedure

in the court system where he could waive his speedy trial rights in exchange for a

reduced sentence, and that his trial counsel had been unsuccessful in obtaining a more

desirable plea bargain from the prosecutor.

      {¶37} At the hearing held on the motion, trial counsel explained that he waived

the preliminary hearing because that was a way to reduce bond and to obtain the

police report earlier.   He also believed that the Palmatier was not present at the


                                           13
preliminary hearing, thereby making the hearing pointless. As to Long’s complaint

concerning the speedy trial waiver/procedure, the trial court interpreted this complaint

as Long seeking to be charged with an information instead of a grand jury indictment

and informed Long that he had no right to have an information filed. The trial court also

informed Long that he had no right to a plea bargain that satisfied him. Later in the

hearing, Long clarified that the only reason he filed the motion was because he sought

some information through discovery which he now possessed. He therefore withdrew

the motion. When the trial court asked Long if he and his trial counsel could work

together, he indicated that they could.

      {¶38} In his second motion for ineffective assistance of counsel, Long

complained that one of his conversations with his trial counsel resulted in an argument

and that “Counsels (sic) inertia is deliberate and constitutes ‘cruel and unusual

punishment’ creating additional fear and anxiety as he withholds his skills and

knowledge to meet the case of the prosecution.” He also complained that there was

exculpatory evidence that his trial counsel was not seeking. Finally he complained that

he had received a “minimal response” to his motions to the court and letters to trial

counsel. Although his letters to trial counsel are not in the record, it appears that Long

wrote several motions to the trial court, specifically (1) his objection to the state’s

motion for a continuance, (2) a motion to dismiss allied offenses of similar import, (3) a

motion to dismiss the felonious assault charge as against the manifest weight of the

evidence, (4) a request for various lesser-included offense jury instructions, and (5) a

motion for exculpatory evidence through discovery.

      {¶39} The trial court held a hearing on Long’s second motion for ineffective

assistance of counsel immediately before voir dire. At the hearing, Long claimed that


                                           14
there was another statement of Palmatier’s, besides her statement given to the police,

that contained exculpatory information. The court and trial counsel were unable to

ascertain what other statement Long was referencing as both the prosecution and trial

counsel stated Palmatier only had one statement in the record. The trial court also

permitted Long to make a statement for the record.

      {¶40} In Long’s statement, he alleged that his attorney was complicit in

prosecutorial misconduct by not seeking medical information that would tend to

exculpate Long for the felonious assault charge. He also alleged that his attorney

withheld a statement by Palmatier. Finally Long complained that his attorney did not

seek to collect phone records which could exonerate him of offenses in some way and

that there was a nurse’s statement that would exculpate him of some of the charges.

      {¶41} Trial counsel replied that he had not withheld any information from Long

and that trial counsel did not believe any exculpatory statements that Long referenced

existed. As for the phone records, trial counsel indicated that he consulted with his

supervisor and decided not to seek discovery on the matter. Trial counsel indicated

that he could not go into more detail on the record due to his duty of confidentiality.

The trial court then denied the motion for ineffective assistance of counsel, and either

denied the remaining motions filed by Long or ruled they were moot.

      {¶42} During the middle of trial, and outside the presence of the jury, Long

indicated that he believed that he was going to be forced to testify, which would be

prejudicial to his defense. The trial court replied that the decision on whether he had to

testify had not come yet, because it was still the middle of the prosecution's case-in-

chief. Long then requested that after the prosecution's case-in-chief he wanted to

continue the trial pro se. The trial court denied the request as being untimely.


                                           15
      {¶43} Finally, after Long’s trial counsel moved to acquit after the prosecution’s

case-in-chief, trial counsel and Long had a “heated” exchange as to whether Long

would testify. Long indicated to the court that he was not going to testify. Long again

discussed his dissatisfaction with trial counsel’s decision not to obtain certain telephone

records. When trial counsel asked for a moment to speak to his client in private, he

indicated that he had met with his client alone at least 10 times and did not need

someone in the room for his safety.

      {¶44} Based on the totality of the circumstances, we find no abuse of discretion

in denying the motion. From our perspective, trial counsel and Long at times had

significant disagreements over trial strategy; however, such disagreements alone are

insufficient to create a complete breakdown in the relationship. The third assignment of

error is without merit.

      {¶45} Because the next two assignments of error go to the sufficiency and

manifest weight of the evidence, we review those assignments together. As his fourth

and fifth assignments of error, Long asserts that:

      {¶46} “The trial court erred to the prejudice of the defendant-appellant when it

returned a verdict of guilty against the manifest weight of the evidence.”

      {¶47} “The trial court erred to the prejudice of the defendant-appellant in denying

his motion for acquittal made pursuant to Crim.R. 29(A).”

      {¶48} This court laid out the standard for sufficiency and manifest weight

challenges in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. LEXIS

5862, *13-15 (Dec. 23, 1994) as the following:




                                           16
      {¶49} “‘Sufficiency’ challenges whether the prosecution has presented evidence

on each element of the offense to allow the matter to go to the jury, while 'manifest

weight' contests the believability of the evidence presented. * * *

      {¶50} “‘[M]anifest weight’ requires a review of the weight of the evidence

presented, not whether the state has offered sufficient evidence on each element of the

offense.

      {¶51} “In determining whether the verdict was against the manifest weight of the

evidence, ‘* * * the court reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the 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.’”

      {¶52} Kidnapping under R.C. 2905.01(A)(3) is defined as the following: “No

person, by force, threat, or deception, or, in the case of a victim under the age of

thirteen or mentally incompetent, by any means, shall remove another from the place

where the other person is found or restrain the liberty of the other person, for any of the

following purposes: * * * To terrorize, or to inflict serious physical harm on the victim or

another.”

      {¶53} Felonious assault under R.C. 2903.11(A)(1) is defined as the following:

“No person shall knowingly do either of the following: (1) Cause serious physical harm

to another or to another's unborn;”

      {¶54} R.C. 2901.01(A)(5) defines serious physical harm to persons, in pertinent

part as: “[a]ny mental illness or condition of such gravity as would normally require

hospitalization or prolonged psychiatric treatment” or [a]ny physical harm that involves


                                            17
some    permanent      disfigurement   or   that     involves   some   temporary,   serious

disfigurement.”

       {¶55} As to the kidnapping conviction, Long claims that the evidence does not

support kidnapping because all acts of kidnapping were incidental to the assault.

Therefore this appears to be a merger issue that we will address in more detail in the

sixth assignment of error. We therefore will delay our analysis of that argument. We

simply note that the moving of Palmatier to the balcony where Long threatened to

throw her off it and Long’s decision to sit on top of her and threaten to kill her with a

knife is sufficient to establish kidnapping.       Although Long claims the lack of direct

evidence, such as Palmatier’s torn clothes and the knife Long used to threaten

Palmatier, as well as Palmatier’s concern for Long’s well-being undercut her credibility,

we find do not find these flaws make her an incredible witness as to all matters.

       {¶56} Because Long consolidated his manifest weight and sufficiency arguments

for his domestic violence and felonious assault convictions, we will also do the same.

As to the domestic violence arguments, they are without merit. Although a jury found

Long guilty of domestic violence, the trial court merged the domestic violence verdict

with the felonious assault verdict at sentencing. Therefore, Long was never convicted

of domestic violence because he was not sentenced on that count. State v. Bush, 11th

Dist. Portage No. 2005-P-0004, 2006-Ohio-4038, ¶36.

       {¶57} In regard to the felonious assault conviction, Long argues that there was

insufficient evidence or weight demonstrating that Palmatier suffered serious physical

harm as defined by R.C. 2901.01(A)(5). These arguments are without merit. The

evidence showed that Palmatier suffered a significant bruising on her head and a

concussion.       A concussion is a mental condition that would normally require


                                            18
hospitalization.   Furthermore other courts have found a concussion with bruising

satisfies the serious physical harm threshold. State v. Burks, 3d Dist. Seneca No. 13-

05-36, 2006-Ohio-2142, ¶7, 22; State v. Davis, 8th Dist. Cuyahoga No. 81170, 2002-

Ohio-7068, ¶22-23.

       {¶58} Consequently, the fourth and fifth assignments of error are without merit.

       {¶59} As his sixth assignment of error, Long asserts that:

       {¶60} “The trial court erred to the prejudice of the defendant-appellant by failing

to merge allied offenses of similar import.”

       {¶61} We conduct a de novo review of an allied offenses question. State v.

Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶12. R.C. 2941.25 provides:

       {¶62} “(A) Where the same conduct by a 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.

       {¶63} “(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.”

       {¶64} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, a plurality of

the Ohio Supreme Court announced a new two-part test to determine if two offenses

were allied offenses of similar import. This court embraced and later adopted the lead

opinion in State v. May, 11th Dist. Lake No. 2010-L-131, 2011-Ohio-5233; see also

State v. Oliver, 11th Dist. Portage No. 2010-P-0017, 2012-Ohio-122, ¶129. The two-


                                               19
part test requires a court to first “consider whether it is possible to commit the offenses

by the same conduct” and then consider “whether the offenses were, in fact, committed

by the same conduct: i.e., ‘a single act committed with a single state of mind.’” State v.

Biondo, 11th Dist. Portage No. 2012-P-0043, 2013-Ohio-876, ¶6. “If both questions

are answered affirmatively, then merger is appropriate.” Id.

      {¶65} As to the first prong of Johnson, it is possible to commit kidnapping under

R.C. 2905.01(A)(3) and felonious assault with the same conduct and the same state of

mind. Thus, the next issue is whether the crime was actually committed by a single act

with a single state of mind.

      {¶66} As to the second prong, Long punched Palmatier three times in the head

in the living room, dragged her to the sliding glass door leading to the balcony where

he proceeded to threaten to throw her off the balcony.            From there, Palmatier

attempted to escape to the kitchen; however, Long pulled her body towards himself, sat

on her and threatened her with a knife. From these facts, Long committed felonious

assault and then proceeded to kidnap her. The dragging of Palmatier to the balcony

was not connected to the assault because the evidence indicates Long punched

Palmatier three times before dragging her to the balcony.             Consequently, the

kidnapping was not incidental to the assault, and therefore the crimes were not

committed by a single act.     Furthermore, because there is no evidence that Long

assaulted Palmatier after they left the bedroom, Long’s threats to Palmatier reflected

an intent to terrorize rather than cause serious physical harm. Therefore, there is a

separate animus to the kidnapping as well.

      {¶67} The sixth assignment of error is without merit.

      {¶68} As his last assignment of error, Long asserts that:


                                           20
      {¶69} “The trial court erred by sentencing the defendant-appellant to a term of

imprisonment contrary to statute and where its findings were not supported by the

record.”

      {¶70} Here Long asserts that the sentencing court did not consider Long’s

“[d]epression and other mental health issues” and that he expressed genuine remorse

at sentencing. The state argues that the record supports the sentence.

      {¶71} The parties both suggest that this court utilize the test announced in State

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912 as our standard of review. This court,

including this writer, has adopted Kalish as the standard of review for felony

sentencing. See, e.g., State v. Finch, 11th Dist. Portage No. 2013-P-0046, 2014-Ohio-

1680. However, we now conclude that Kalish is no longer good law. Rather, we must

use the standard of review as set out in R.C. 2953.08(G)(2). That provision states:

“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.” R.C. 2953.08(G)(2). To explain why,

we need to briefly explore the relationship among Kalish, Apprendi v. New Jersey, 530

U.S. 466 (2000) and Apprendi’s progeny.




                                           21
      {¶72} In Apprendi, the Supreme Court considered whether certain forms of

judicial factfinding in sentencing violated a defendant’s Sixth Amendment right to a trial

by jury. The New Jersey sentencing scheme at issue subjected the defendant to a

prison term of five to ten years for his unlawful possession of a prohibited weapon.

However, if the sentencing judge found, by a preponderance of the evidence, that the

defendant acted with a motive to intimidate a victim because of their race, religion,

disability, gender or sexual orientation, the possible sentence that the sentencing judge

could impose was raised to 10-20 years. The Supreme Court held this hate crime

statute violated Apprendi’s Sixth Amendment right to a trial by jury. Id. at 490. (“[A]ny

fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.”) In Blakely v.

Washington, 542 U.S. 296 (2004), the Supreme Court clarified that the statutory

maximum was the maximum sentence that could be imposed solely on the basis of the

facts as presented by the jury or otherwise admitted by the defendant. 542 U.S. at

303-04.

      {¶73} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Ohio Supreme

Court considered whether certain portions of Ohio’s sentencing regime violated

Apprendi in light of the ruling in Blakely.     The court severed the unconstitutional

aspects of Ohio’s sentencing scheme and held that “trial courts have full discretion to

impose a prison sentence within the statutory range and are no longer required to

make findings or give their reasons for imposing maximum, consecutive, or more than

the minimum sentences.” Id., ¶100. The court also noted that “[t]he appellate statute

R.C. 2953.08(G), [which sets out the standard of review on appeal], insofar as it refers

to the severed sections, no longer applies.” Id., ¶99.


                                           22
      {¶74} In Kalish, the Ohio Supreme Court had to consider whether R.C.

2953.08(G) was the standard of review for felony sentences in light of its holding in

Foster. The Ohio Supreme Court noted that an abuse of discretion standard was

clearly prohibited prior to Foster. Kalish, 2008-Ohio-4912, ¶9. However, because “a

record after Foster may be silent as to the judicial findings that appellate courts were

originally meant to review under R.C. 2953.08(G)(2)” the court adopted the two prong

test in Kalish. Id., ¶12.

      {¶75} In Oregon v. Ice, 555 U.S. 160 (2009), the United States Supreme Court

held that it was constitutionally permissible to require judicial fact-finding before

imposing consecutive sentences. Although Ice overruled Foster’s holding that such a

requirement violated Apprendi and Blakely, the Ohio Supreme Court held that Ice did

not revive fact-finding for consecutive sentences. State v. Hodge, 128 Ohio St. 3d 1,

2010-Ohio-6320, ¶35.

      {¶76} In 2011, the General Assembly passed 2011 Am.Sub.H.B. No. 86 (“H.B.

86”). That bill revived the judicial fact-finding for consecutive sentences and revived

the R.C. 2953.08(G) standard of review. In Section 11 of H.B. 86, the General

Assembly provided a statement of legislative intent for the revisions to those sections:

      {¶77} “In amending division (E)(4) of section 2929.14 and division (A) of section

2929.41 of the Revised Code in this act, it is the intent of the General Assembly to

simultaneously repeal and revive the amended language in those divisions that was

invalidated and severed by the Ohio Supreme Court's decision in State v. Foster

(2006), 109 Ohio St.3d 1, 2006 Ohio 856, 845 N.E.2d 470. The amended language in

those divisions is subject to reenactment under the United States Supreme Court's

decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517, and


                                           23
the Ohio Supreme Court's decision in State v. Hodge (2010), 128 Ohio St.3d 1, 2010

Ohio 6320, 941 N.E.2d 768, and, although constitutional under Hodge, supra, that

language is not enforceable until deliberately revived by the General Assembly.”

(Emphasis added.)

      {¶78} Therefore, because the legislative intent of H.B. 86 was to overrule parts

of Foster and the General Assembly also re-enacted the standard of review for felony

sentencing, it can be inferred that the General Assembly also sought to revive the

standard of review for felony sentencing. Several district courts have reached the

same conclusion. State v. Bever, 4th Dist. Washington No. 13CA21, 2014-Ohio-600,

¶9 (collecting cases from the First, Second, Third, Eighth, Tenth and Twelfth Districts).

Consequently, from now on we will utilize R.C. 2953.08(G) as the standard of review in

all felony sentencing appeals.

      {¶79} In this case, Long argues that the sentencing court did not consider the

relevant factors under R.C. 2929.12. We note though that the sentencing court is

required to consider the R.C. 2929.12 factors. Such a consideration does not require

the sentencing court to “‘use specific language or make specific findings on the record

in order to evince the requisite consideration of the applicable seriousness and

recidivism factors (of R.C. 2929.12).’” State v. Webb, 11th Dist. Lake No. 2003-L-078,

2004-Ohio-4198, ¶10, quoting State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-302,

724 N.E.2d 793. In State v. Greitzer, 11th Dist. Portage No. 2006-P-0090, 2007-Ohio-

6721, ¶28, this court acknowledged its adoption of the pronouncement of the Ohio

Supreme Court in State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988). The

Ohio Supreme Court in Adams held: “[a] silent record raises the presumption that a trial

court considered the factors contained in R.C. 2929.12.” Adams, supra, paragraph


                                          24
three of the syllabus. Moreover, in State v. Cyrus, 63 Ohio St.3d 164, 586 N.E.2d 94

(1992), the Ohio Supreme Court held that the burden is on the defendant to present

evidence to rebut the presumption that the court considered the sentencing criteria. Id.

at 166. Other courts of appeals have found that in order to rebut this presumption, “‘a

defendant must either affirmatively show that the court failed to [consider the statutory

factors], or that the sentence the court imposed is “strikingly inconsistent” with the

statutory factors as they apply to his case.’” State v. Bigley, 9th Dist. Medina No.

08CA0085-M, 2009-Ohio-2943, ¶14, quoting State v. Rutherford, 2d Dist. No. 08CA11,

2009-Ohio-2071, ¶34.

      {¶80} In its sentencing entry, the sentencing court stated that it considered the

R.C. 2929.12 factors. Long does not point to anything in the record that demonstrates

that the sentencing court failed to consider the relevant statutory factors. Therefore he

must demonstrate that the result is strikingly inconsistent with the record, which he

cannot do. Palmatier’s testimony about her injuries was not contested and Long’s

attempts to interfere with the prosecution’s case indicate his remorse lacks sincerity.

      {¶81} The last assignment of error is without merit.

      {¶82} Accordingly, the judgment of the trial court is affirmed.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with a Dissenting
Opinion.


                               ____________________




                                           25
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with a Dissenting
Opinion.


      {¶83} I concur with the majority regarding the disposition of appellant Stacy

Long’s assignments of error Nos. 1 through 5 and No. 7.            I respectfully dissent

regarding assignment of error No. 6 regarding the trial court’s failure to merge the

sentences regarding the charges of felonious assault and kidnapping.

      {¶84} The majority correctly states that it is possible to commit felonious assault

and kidnapping with the same conduct and the same state of mind – thus satisfying the

first prong of Johnson. This leaves us to consider whether both crimes were committed

by a single act with a single animus.

      {¶85} It is useful to consider the following guidelines to determine whether

kidnapping and another offense of similar import are committed with a separate

animus:

             (a) Where the restraint or movement of the victim is merely
             incidental to a separate underlying crime, there exists no separate
             animus sufficient to sustain separate convictions; however, where
             the restraint is prolonged, the confinement is secretive, or the
             movement is substantial so as to demonstrate a significance
             independent of the other offense, there exists a separate animus as
             to each offense sufficient to support separate convictions;

             (b) Where the asportation or restraint of the victim subjects the
             victim to a substantial increase in risk of harm separate and apart
             from that involved in the underlying crime, there exists a separate
             animus as to each offense sufficient to support separate
             convictions.

             State v. Logan, 60 Ohio St.2d 126 (1979), syllabus.


      {¶86} The evidence in the record along with the testimony of the victim

demonstrates that the felonious assault lasted the duration of the restraint, or vice



                                          26
versa, depending on one’s point of view. This was not, as the state argued in their

brief, a case of prolonged restraint that included several episodes of felonious assault.

Long first attacked Palmatier in the bedroom of the apartment.         The assault then

immediately continued into the living room, dining room and ended shortly thereafter in

the kitchen. This was not a case of felonious assault followed by restraint or restraint

followed by felonious assault: the two crimes occurred simultaneously over a relatively

brief period of time.

      {¶87} After he assaulted her, Long told Palmatier that she could call the police.

Palmatier testified that she was concerned that calling the police might cause Long to

assault her again, so she went to bed instead.          While Palmatier’s concern was

reasonable under the circumstances, there is no evidence in the record that Long

further restrained her after the assault ended.

      {¶88} In this case the restraint was not prolonged, the confinement was not

secretive, and the movement was not so substantial so as to demonstrate a

significance independent of the felonious assault offense. Long’s restraint of Palmatier

did not subject her to a substantial increase in risk of harm separate and apart from

that involved in the felonious assault. Logan, supra.

      {¶89} Thus, I respectfully dissent, regarding this assignment of error.




                                           27
