[Cite as State v. Bridges, 2018-Ohio-1388.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105440




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   ANDRE L. BRIDGES
                                                      DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-602730-A

        BEFORE:          Laster Mays, Stewart, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                     April 12, 2018
                              -i-




ATTORNEY FOR APPELLANT

Leigh S. Prugh
Nee Law Firm, L.L.C.
26032 Detroit Road, Suite 5
Westlake, OH 44145


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

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

       {¶1} Defendant-appellant Andre L. Bridges (“Bridges”) appeals his convictions

and sentence, and asks this court to reverse his convictions and vacate his sentence.    We

affirm in part, reverse in part, and remand for resentencing.

       {¶2} Bridges was convicted of one count of rape, a first-degree felony, in violation

of R.C. 2907.02(A)(2); one count of gross sexual imposition, a fourth- degree felony, in

violation of R.C. 2907.05(A)(1); and one count of kidnapping, a first-degree felony, in

violation of R.C. 2905.01(A)(4). The kidnapping count included a sexual motivation

specification under R.C. 2941.147(A). Bridges was sentenced to nine years in prison

and five years of mandatory postrelease control for rape.       He was also sentenced to nine

years in prison for kidnapping and 18 months for gross sexual imposition. The trial

court ran the prison terms for kidnapping and gross sexual imposition concurrently, but

consecutively to the sentence for rape.    Bridges was sentenced to an aggregate        of 18

years in prison.

I.     Facts

       {¶3} Bridges first met the victim, L.M., at her sister’s house on Halloween, 2015.

The two talked over the next few days and eventually planned to go to dinner for L.M.’s

birthday. The date did not go well according to L.M.            Over the next couple of days,

Bridges attempted to call L.M. to apologize for the bad date.         On November 8, 2015,

Bridges ultimately contacted L.M. to discuss their last date and, after several hours of
talking, L.M. accepted Bridges’s apology. L.M. informed Bridges that she had plans to

celebrate her best friend’s birthday, and they separated.   After dinner, L.M. and her

friends decided to go to a club for dancing. This was also the same club that Bridges

mentioned to L.M. that he would be going to that evening.

        {¶4} Bridges met with L.M. and her friends at the club. After a few drinks, L.M.

asked Bridges to drive her home, and arranged for her friends to drive her car to her

home.      When they all arrived at L.M.’s house, L.M. told her friends that she wanted

Bridges to leave because she did not want to have sex with him. Bridges and the rest of

L.M’s friends left, with Bridges stating that he was going to come back to L.M.’s home.

Ten minutes later, Bridges returned to L.M.’s home. L.M. refused to let Bridges into her

home until he promised that they would not get physical. Once Bridges entered the

home, Bridges and L.M. started kissing. L.M. pulled away and reminded Bridges of his

promise.

        {¶5} L.M. and Bridges then walked into her living room, where they laid on the

floor together and began kissing once more. L.M. again asked Bridges to slow down.

Bridges got on top of L.M. and started touching and kissing her. L.M. resisted by trying

to push Bridges off of her. Bridges removed L.M.’s clothes and penetrated L.M.’s

vagina without her consent.

        {¶6} Once Bridges stopped, L.M. put her clothes back on and moved to the other

side of the room. Bridges eventually left L.M.’s home. The next day, L.M. confided in

her friend everything that transpired the night before with Bridges. That evening, L.M.
reported the incident to the Maple Heights Police Department. L.M. then went to the

hospital, where she was examined and treated for sexual assault.      The semen discovered

on L.M.’s body was submitted as part of L.M.’s rape kit.

       {¶7} A DNA analyst analyzed the semen from the rape kit and matched it to the

DNA profile from Bridges. The police interviewed Bridges, who denied having sex

with or raping L.M. On November 9, 2015, Bridges was indicted on rape, gross sexual

imposition, and kidnapping. He was found guilty.

       {¶8} On October 26, 2016, Bridges filed a civil action, where he alleged

malpractice against his own attorney on grounds that he was not permitted to testify on

his own behalf at the trial.   He also requested a new trial in the criminal case.   The trial

court denied Bridges’s motion for a new trial. Bridges filed a timely appeal assigning

three errors for our review:

       I.     The trial court erred in finding the appellant guilty on all of the
              counts of the indictment, as the conviction is against the manifest
              weight of the evidence;

       II.    The trial court erred in failing to merge the counts of rape and
              kidnapping, as they should have been considered allied offenses
              under R.C. 2941.45;

       III.   The trial court erred when it denied appellant’s motion for a new trial
              where Bridges was denied effective assistance of counsel based on
              his counsel’s refusal to allow him to testify at trial.
II.   Manifest Weight of the Evidence

      A.     Standard of Review

      {¶9} Bridges claims that his conviction is against the manifest weight of the

evidence.

      A manifest weight challenge attacks the credibility of the evidence

      presented and questions whether the state met its burden of persuasion at

      trial. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶

      26, citing Thompkins, 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541;

      State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13.

      Because it is a broader review, a reviewing court may determine that a

      judgment of a trial court is sustained by sufficient evidence, but

      nevertheless conclude that the judgment is against the weight of the

      evidence.

State v. Wynn, 8th Dist. Cuyahoga No. 103824, 2017-Ohio-4062, ¶ 48.

      {¶10} Also,

      “‘[w]hen considering an appellant’s claim that a conviction is against the

      manifest weight of the evidence, the court of appeals sits as a “thirteenth

      juror” and may disagree with the factfinder’s resolution of conflicting

      testimony.’” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42,

      102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).         The reviewing court must

      examine the entire record, weigh the evidence and all reasonable inferences,
       consider the witnesses’ credibility, and determine whether, in resolving

       conflicts in the evidence, the trier of fact clearly lost its way and created

       such a manifest miscarriage of justice that the conviction must be reversed

       and a new trial ordered.     Thompkins at 387, citing State v. Martin, 20 Ohio

       App.3d 172, 20 Ohio B. 215, 485 N.E.2d 717 (1st Dist.1983). In conducting

       such a review, this court remains mindful that the credibility of witnesses

       and the weight of the evidence are matters primarily for the trier of fact to

       assess.    State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

       paragraphs one and two of the syllabus. Reversal on manifest weight

       grounds is reserved for the “‘exceptional case in which the evidence weighs

       heavily against the conviction.’”       Thompkins at 387, quoting Martin,

       supra.

Id. at ¶ 49.

       B.        Law and Analysis

       {¶11} In Bridges’s first assignment of error, he contends that his convictions were

against the manifest weight of the evidence because L.M.’s testimony was inconsistent,

resulting in L.M. not being a reliable witness.

       {¶12} Although, we review credibility when considering the manifest weight of

the evidence, we are cognizant that determinations regarding the credibility of witnesses

and the weight of the testimony are primarily for the trier of fact. The trier of fact is best

able “‘to view the witnesses and observe their demeanor, gestures, and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.’”

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

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

       {¶13} The rape statute, R.C. 2907.02(A)(2), states “no person shall engage in

sexual conduct with another who is not the spouse of the offender * * *, the offender

purposely compels the other person to submit by force or threat of force.”           Bridges

specifically points to L.M.’s testimony that after expressing displeasure with Bridges on

the night of the rape, she let him back in the house. Bridges also refers to L.M.’s

testimony where she stated, “[w]hile part of me enjoyed it, the other part felt I was losing

control of the situation quickly. I repeatedly said ‘stop’ and that I didn’t want to do this.”

(Tr. 617.) Bridges claims that by L.M. stating part of her enjoyed it, her testimony is

unreliable.    Bridges asserts that this demonstrates his encounter with L.M. was

consensual.

       {¶14} However,

       [i]t is the province of the [factfinder] to determine where the truth probably
       lies from conflicting statements, not only of different witnesses, but by the
       same witness. State v. Haynes, 10th Dist. Franklin No. 03AP-1134,
       2005-Ohio-256, ¶ 24, quoting State v. Lakes, 120 Ohio App. 213, 201
       N.E.2d 809 (4th Dist.1964). “A conviction is not against the manifest
       weight of the evidence solely because the [factfinder] heard inconsistent
       testimony.” State v. Phillips, 8th Dist. Cuyahoga No. 103325,
       2017-Ohio-1284, ¶ 33, quoting State v. Hill, 8th Dist. Cuyahoga No. 99819,
       2014-Ohio-387.

State v. Patterson, 8th Dist. Cuyahoga No. 105265, 2017-Ohio-8318, ¶ 19.

       {¶15}    During trial, the factfinder had the opportunity to listen and observe
L.M.’s demeanor, gestures, and voice inflection.       It is the province of the factfinder to

determine where the truth probably lies, even if the testimony was inconsistent.

Reviewing the conflicts in the evidence, we do not find that the trier of fact clearly lost its

way. We do not find that the rape conviction was against the manifest weight of the

evidence.

         {¶16} Bridges also contends that his conviction in violation of R.C. 2905.01(A)(4)

with a sexual motivation specification was also against the manifest weight of the

evidence.     The kidnapping statute, R.C. 2905.01(A), states that “[n]o person, by force,

threat, or deception, * * *, shall remove another from the place where the other person is

found or restrain the liberty of the other person, * * * (4) [t]o engage in sexual activity, as

defined in section 2901.01 of the Revised Code, with the victim against the victim’s

will.”

         {¶17} We find that Bridges’s assertion has no merit. The record reveals that the

victim made multiple attempts to push Bridges off of her while she was restrained on the

floor.    The evidence supports that L.M.’s liberty was restrained in order for Bridges to

engage in sexual activity.

         {¶18} We do not find that this is the exceptional case. Therefore, Bridge’s

convictions for rape and kidnapping are not against the manifest weight of the evidence.

         {¶19} Bridges first assignment of error is overruled.

III.     Allied Offenses

         A.     Standard of Review
       {¶20} Bridges argues that his convictions for rape and kidnapping are allied

offenses and should merge for the purpose sentencing.    “An appellate court applies a de

novo standard of review when reviewing whether two offenses are allied offenses of

similar import.” (Citation omitted.) State v. Boczek, 8th Dist. Cuyahoga No. 103811,

2016-Ohio-5708, ¶ 4.

       B.        Law and Analysis

       {¶21} In Bridges’s second assignment of error, he contends that the court erred in

failing to merge the rape and kidnapping counts. R.C. 2941.25 provides:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
       may contain counts for all such offenses, but the defendant may be
       convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of
       dissimilar import, or where his conduct results in two or more offenses of
       the same or similar kind committed separately or with a separate animus as
       to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

       {¶22} Courts must ask three questions when determining whether offenses are

allied offenses of similar import within the meaning of R.C. 2941.25,

       * * * (1) Were the offenses dissimilar in import or significance — in other
       words, did each offense cause separate, identifiable harm? (2) Were they
       committed separately? and (3) Were they committed with separate animus
       or motivation? State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d
       892, ¶ 31. “An affirmative answer to any of the above will permit separate
       convictions. The conduct, the animus, and the import must all be
       considered.” Id.

Boczek at ¶ 6.
         {¶23} Bridges was convicted of kidnapping, in violation of R.C.2905.01(A)(4) and

rape, in violation of R.C. 2907.02(A)(2). The kidnapping occurred when Bridges held

L.M. down to rape her.           See State v. Trotter, 8th Dist. Cuyahoga No. 97064,

2012-Ohio-2760, ¶ 48 (“the state concedes that one of the kidnapping convictions merges

into the rape convictions because it occurred when defendant held the victim down while

he was raping her”).

         In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), the Supreme
         Court of Ohio adopted guidelines for determining whether kidnapping and
         another similar offense are allied offenses of similar import that were not
         committed with a separate animus. In the syllabus of Logan, the Supreme
         Court of Ohio stated:

                 “(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 transportation 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. Smith, 10th Dist. Franklin No. 87AP-300, 1988 Ohio App. LEXIS 1858 (May 12,

1988).

         {¶24}    A review of the record reveals that the rape and kidnapping were not

committed separately, but simultaneously, and were committed with the same motivation,

to force the victim to engage in sexual conduct.       Therefore, the trial court erred in not

merging the rape and kidnapping counts.
         {¶25} Bridges’s second assignment of error is sustained.                 The trial court’s

decision is reversed. We remand to the trial court to merge the rape and kidnapping

convictions.      The state shall elect the merger, and the trial court is to resentence Bridges.

IV.      Motion for New Trial

         A.      Standard of Review

         {¶26} Bridges argues that the trial court erred when it denied his motion for a new

trial.

         The decision to grant or deny a motion for new trial rests in the sound
         discretion of the trial court and will not be reversed on appeal absent an
         abuse of discretion. Sharp v. Norfolk & W. Ry. Co., 72 Ohio St.3d 307, 312,
         1995 Ohio 224, 649 N.E.2d 1219. * * * An abuse of discretion is more than
         an error in judgment or a mistake of law; it connotes that the court’s attitude
         is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore
         (1983), 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140.

Shepard v. Grand Trunk W. RR., 8th Dist. Cuyahoga No. 92711, 2010-Ohio-1853, ¶ 49.

         B.      Law and Analysis

         {¶27} In Bridges’s third assignment of error, he contends that he was denied

effective assistance of counsel because his trial counsel refused to allow him to testify at

his trial.    He filed a motion for a new trial, and the trial court denied it.

       In order to substantiate a claim of ineffective assistance of counsel, the
       appellant must show that: (1) counsel’s performance was deficient; and (2)
       the deficient performance prejudiced the defendant so as to deprive him of a
       fair trial. State v. Trimble, 122 Ohio St.3d 297, 911 N.E.2d 242 (2009),
       citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
       L.Ed.2d 674 (1984). Judicial scrutiny of defense counsel’s performance
       must be highly deferential. Strickland at 689. In Ohio, there is a
       presumption that a properly licensed attorney is competent. State v.
       Calhoun, 86 Ohio St.3d 279, 1999 Ohio 102, 714 N.E.2d 905 (1999).
State v. Pridgett, 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, ¶ 34.
       {¶28} Bridges argues that his trial counsel informed him that Bridges could not

testify and tell his side of the story. “Generally, the defendant’s right to testify is

regarded both as a fundamental and a personal right that is waivable only by an accused.”

 State v. Bey, 85 Ohio St.3d 487, 497, 709 N.E.2d 484 (1999).

       {¶29} However,

       “[w]hether or not a defendant testifies is purely a tactical decision.” State v.
       Hailes, 6th Dist. Wood No. WD-11-001, 2012-Ohio-3111, ¶ 53, quoting
       State v. Ryan, 6th Dist. Wood No. WD-05-5120, 2006-Ohio-5120, ¶ 23.
       See also State v. Coulson, 3d Dist. Hardin No. 6-96-04, 1996 Ohio App.
       LEXIS 3621, 1996 WL 471304, *2 (Aug. 2, 1996). (“[W]e believe that
       counsel’s decision to allow defendant to testify was a reasonable tactical
       decision which will not be second guessed on appellate review.”). “Since
       the advice of an attorney to their client regarding the decision to testify is a
       tactical decision, it cannot be challenged on appeal on the grounds of
       ineffective assistance of counsel, unless it is shown that the decision was
       the result of coercion.” Hailes at ¶ 53, quoting Ryan at ¶ 23.

State v. Johnston, 3d Dist. Logan No. 8-13-10, 2014-Ohio-353, ¶ 20.

       {¶30} There is nothing in the record which indicates that Bridges’s trial counsel

coerced him to not testify at trial.

       The defendant bears the burden of proving ineffectiveness of counsel.
       State v. McNeill (1998), 83 Ohio St.3d 438, 451, 700 N.E.2d 596. “The
       defendant cannot meet his burden by making bare allegations that find no
       support in the record.” State v. Leek, 8th Dist. Cuyahoga No. 74338, 1999
       Ohio App. LEXIS 3503 (July 29, 1999), unreported, citing State v. Stewart,
       8th Dist. Cuyahoga No. 73255 (Nov. 19, 1998), unreported, citing State v.
       Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985).
State v. Cobb, 8th Dist. Cuyahoga No. 76950, 2001-Ohio-4132, 2001 Ohio App. LEXIS

968, 9 (Mar. 8, 2001). In this case, Bridges fails to satisfy either prong of the Strickland

test. Bridges was not denied effective assistance of counsel.

       {¶31} Crim.R. 33(A) provides the grounds for when a new trial may be granted.
It states,

        A new trial may be granted on motion of the defendant for any of the
        following causes affecting materially his substantial rights:

        (1) Irregularity in the proceedings, or in any order or ruling of the court,
        or abuse of discretion by the court, because of which the defendant was
        prevented from having a fair trial;

        (2) Misconduct of the jury, prosecuting attorney, or the witnesses for the
        state;

        (3) Accident or surprise which ordinary prudence could not have guarded
        against;

        (4) That the verdict is not sustained by sufficient evidence or is contrary
        to law. If the evidence shows the defendant is not guilty of the degree of
        crime for which he was convicted, but guilty of a lesser degree thereof, or
        of a lesser crime included therein, the court may modify the verdict or
        finding accordingly, without granting or ordering a new trial, and shall pass
        sentence on such verdict or finding as modified;

        (5)   Error of law occurring at the trial;

        (6) When new evidence material to the defense is discovered, which the
        defendant could not with reasonable diligence have discovered and
        produced at the trial. When a motion for a new trial is made upon the
        ground of newly discovered evidence, the defendant must produce at the
        hearing on the motion, in support thereof, the affidavits of the witnesses by
        whom such evidence is expected to be given, and if time is required by the
        defendant to procure such affidavits, the court may postpone the hearing of
        the motion for such length of time as is reasonable under all the
        circumstances of the case. The prosecuting attorney may produce
        affidavits or other evidence to impeach the affidavits of such witnesses.

Our finding that Bridges was not denied effective assistant of counsel where Bridges

asserts that his counsel did not allow him to testify or threaten to terminate representation

is determinative of this assignment of error.        The remaining reasons enumerated above

for possibly granting a motion for a new trial are not applicable to Bridges claims and
therefore will not be reviewed.      We find nothing in the record supporting Bridges’s

assertion that he was prevented from having a fair trial.    Therefore, we find that the trial

court did not err by denying Bridges’s motion for a new trial.

       {¶32} Bridges’s third and final assignment of error is overruled.

       {¶33} Judgment is affirmed in part, reversed in part, and remanded for

resentencing.

       It is ordered that the appellee and appellant split costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

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

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________
ANITA LASTER MAYS, JUDGE

MELODY J. STEWART, P.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY
