[Cite as State v. Smith, 2020-Ohio-573.]
                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                  :

                 Plaintiff-Appellee,            :
                                                           No. 108415
                 v.                             :

TOMMIE W. SMITH,                                :

                 Defendant-Appellant.           :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: February 20, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-622983-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Brian D. Kraft, Assistant Prosecuting
                 Attorney, for appellee.

                 Jordan Sidoti, L.L.P., and Mary Catherine Corrigan, for
                 appellant.



PATRICIA ANN BLACKMON, P.J.:

                   Tommie W. Smith appeals from his abduction conviction and assigns

the following errors for our review:
          I.    The trial court improperly instructed the jury as to abduction, a
                lesser included offense to kidnapping in count five (5) of the
                indictment.

          II.   The guilty verdict cannot be upheld because evidence and
                testi[m]ony presented at trial did not establish appellant’s guilt
                beyond a reasonable doubt.

                 Having reviewed the record and pertinent law, we affirm the trial

court’s judgment. The apposite facts follow.

                 In the early morning hours of October 22, 2017, Smith was with L.O.

at L.O.’s cousin’s house. At one point, Smith pulled out a gun and an argument began.

Ultimately, Smith dragged L.O. to his vehicle at gunpoint and drove her back to his

house.

                 On November 17, 2017, Smith was indicted for rape, two counts of

kidnapping, two counts of felonious assault, and aggravated burglary. The indictment

contained firearm, notice of prior conviction, repeat violent offender, sexually violent

predator, and sexual motivation specifications.

                 On February 13, 2019, a jury trial began. The court dismissed the

aggravated burglary count and one of the felonious assault charges.            Prior to

deliberations, the court instructed the jury on the remaining counts of the indictment

and abduction as a lesser-included offense to one of the kidnapping charges. On

February 21, 2019, the jury found Smith guilty of abduction and not guilty of the

remaining charges. On March 27, 2019, the court sentenced Smith to 12 months in

prison.
Abduction Jury Instruction

                A “defendant may be found not guilty of the [offense] charged but

guilty of an inferior degree thereof, or of a lesser included offense.” Crim.R. 31(C).

See also R.C. 2945.74. A “criminal defendant does not have the right to prevent a trial

court from giving lesser-included-offense jury instructions; whether to include such

jury instructions lies within the discretion of the trial court and depends on whether

the evidence presented could reasonably support a jury finding of guilt on a particular

charge.” State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 1.

The Ohio Supreme Court has further held that “[e]ven though an offense may be

statutorily defined as a lesser included offense of another, a charge on such lesser

included offense is required only where the evidence presented at trial would

reasonably support both an acquittal on the crime charged and a conviction upon the

lesser included offense.” State v. Thomas, 40 Ohio St.3d 213, 216, 533 N.E.2d 286

(1988).

                Abduction is a lesser included offense of kidnapping. State v. Maurer,

15 Ohio St.3d 239, 271, 473 N.E.2d 768 (1984). Abduction is defined in R.C. 2905.02,

the pertinent parts of which state that “No person, without privilege to do so, shall

knowingly * * * [b]y force or threat, remove another from the place where the other

person is found * * *.” R.C. 2905.02(A)(1). The kidnapping charge at issue alleged a

violation of R.C. 2905.01(A)(2), which states that “[n]o person, by force, threat, or

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

* * * [t]o facilitate the commission of any felony * * *.”
               “One of the primary differences between kidnapping and abduction

involves the offender’s mental culpability. Kidnapping involves a purposeful removal

or restraint * * *, while abduction involves a knowing removal or restraint * * *.”

(Emphasis sic.) Maurer at 270.

               Smith cites State v. Bolton, 8th Dist. Cuyahoga No. 96385, 2012-Ohio-

169, to support his argument that the court abused its discretion by instructing the

jury on abduction. However, Bolton is distinguishable from the case at hand. In

Bolton, the victim testified as follows about what happened:

       [S]he was in her upstairs bedroom when she heard noises coming from
       downstairs. When she went into the hallway, she saw a man coming up
       the stairs. She testified that she did not see the man clearly, but heard
       him say, “put your head down, turn around.” At that point, the man
       grabbed her and pushed her into her bedroom. [The victim] testified
       that the man pointed a firearm at her while he pulled off her pants.
       Subsequently, the man penetrated her with his mouth, fingers, and
       penis.

               Bolton was convicted of kidnapping, gross sexual imposition, and

rape. As indicted, the kidnapping was committed to facilitate the commission of a

felony, namely the rape and gross sexual imposition. The jury believed the victim’s

testimony and convicted Bolton of kidnapping. On appeal, Bolton argued that the

trial court erred in refusing to instruct the jury on abduction as a lesser-included

offense. However, it is within the court’s discretion whether to instruct the jury on a

lesser included offense. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207,

at ¶ 1. How the court exercises its discretion depends on the evidence presented at

each trial.
                In the case at hand, Smith was indicted for kidnapping with the

purpose of raping L.O. If Smith did not intend to rape L.O., then his forcing her into

the car and driving off was not kidnapping. Rather, it was abduction. Indeed, were

we to find error with the court’s instructing the jury on abduction in this case, we

would be finding that Smith committed no offense when he forced L.O. into the car

against her will and drove off, removing her from the place where she was.

               Upon review, we find no abuse of discretion with the court instructing

the jury on abduction as a lesser-included offense of kidnapping. The evidence

presented at trial supports a finding of guilt concerning abduction, that is, Smith

knowingly and by force removed L.O. from the place where she was, regardless of

purpose. Smith was acquitted of rape and kidnapping presumably because the jury

did not believe L.O.’s testimony about what occurred after Smith brought L.O. back

to his house. Accordingly, Smith’s first assigned error is overruled.

 Manifest Weight of the Evidence

               In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, & 25, the Ohio Supreme Court addressed the standard of review for a criminal

manifest weight challenge, as follows:

       The criminal manifest-weight-of-the-evidence standard was explained
       in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). In
       Thompkins, the court distinguished between sufficiency of the evidence
       and manifest weight of the evidence, finding that these concepts differ
       both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The
       court held that sufficiency of the evidence is a test of adequacy as to
       whether the evidence is legally sufficient to support a verdict as a matter
       of law, but weight of the evidence addresses the evidence’s effect of
       inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a
       reviewing court asks whose evidence is more persuasive C the state’s or
       the defendant’s? We went on to hold that although there may be
       sufficient evidence to support a judgment, it could nevertheless be
       against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541.
       “When a court of appeals reverses a judgment of a trial court on the basis
       that the verdict is against the weight of the evidence, the appellate court
       sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution
       of the conflicting testimony.”

Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72

L.Ed.2d 652 (1982).

                An appellate court may not merely substitute its view for that of the

jury, but must find that “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.” Thompkins at 387. Accordingly, reversal on

manifest weight grounds is reserved for “the exceptional case in which the evidence

weighs heavily against the conviction.” Id.

                 In the instant case, L.O. testified that Smith, whom she had recently

met, picked her up “a little after midnight” in the early morning hours of October 22,

2017. L.O. was celebrating her birthday, that was on October 21, and she was

celebrating 47 days of sobriety. Smith and L.O. went to a karaoke bar where L.O.

relapsed and drank Patron tequila. Smith and L.O. then went to a house where Smith

sold someone drugs, then Smith and L.O. went to L.O.’s cousin’s house. Around 3:00

a.m., Smith, L.O., and some of her cousins drove to “the bootleg man” to buy alcohol

out of his basement. Then they went back to L.O.’s cousin’s house where they

continued to drink alcohol and smoke marijuana.
               Smith and another male kept leaving the house and coming back.

L.O. testified that she assumed they were selling drugs. According to L.O., “[t]he last

time when he came in, like he came in like — I don’t know. I never seen him like that.

He was like aggressive and like paranoid and like just weird. * * * And before I know

it he was pulling a gun out.” L.O. testified that an argument ensued, and the group

went outside to the porch.

               L.O. testified about what happened next:

       Q:     And after you’re struck, what’s the next thing that happens?

       A:     Go to the car. Grabs my arm and we go to the car and he pulls
       off and I’m like hanging off of it.

       Q:    All right. When you say, he grabs your arm and you go to the car,
       describe that for us.

       A:     He took me by my arm, yanked me to the car (indicating).

       Q:   Okay. And I believe you’re kind of demonstrating that — what
       arm does he grab?

       A:     My bad arm. My left arm.

       ***

       Q:     So you’re grabbed in your left arm. And what is — how is he
       acting when he grabs your arm like that?

       A:     He was just walking.

       Q:     Are you wanting to go with him or not?

       A:     No.

       Q:     All right. Why is it that you do go with him?

       A:     Because he took off with me hanging out of the car.

       ***
Q:     All right. And when he grabs you by your left arm and starts to
pull you to the car do you have your phone with you at that point in
time?

A:    No.

Q:    Do you make any effort to get back to the house?

A:    I definitely did.

Q:    And describe those efforts for us.

A:    I said, could you please drop me back off at my cousin’s house.
Please. Please. He said, no. They’re going to jump me or something.
And I’m like, jump you. It’s nothing but girls there. Could you just
dropped [sic] me off at the end of the street. Or just take me back home.
My dad don’t know nothing. I said, I don’t have my phone or anything.
My dad is going to know something is up. He said, no. So I shut up.

Q:    Okay. Well, earlier in your testimony you mentioned something
about hanging out of the car; is that correct?

A:    The driver’s door.

Q:    Okay. Describe how that takes place. Describe it for us. Paint a
picture for us how you’re getting dragged.

A:    How do you paint that picture? It’s just so clear.

Q:    All right. Well, let me ask you this: You testified earlier that you
were led off the porch and he grabbed your left arm?

A:    Right. So he’s sitting in the driver’s side. And when he pulled off
my feet were like on the ground. So like they got off the ground
somehow because I guess moving so fast and they were like on the
bottom of the car where you step in to get in the car.

Q:    Okay. Were you placed into the car from the driver’s side or the
passenger side?

A:    I was like tossed in from the driver’s side.

Q:    Okay. Once you left that location is that when you told him to
take you back?
       A:     Um-huh.

       Q:     All right. Did he take you back?

       A:     No.

       Q:     At that point in time where did you go with [Smith]?

       A:     To his house.

               Margaret Sharp testified that she met her cousin L.O. for the first time

on October 22, 2017. It was L.O.’s birthday, and she and Smith were visiting some of

L.O.’s family members who were at Sharp’s house. They drank “a little bit” of alcohol,

and “they left to go get more alcohol.” Sharp next testified as follows about what

occurred when L.O. and Smith got back to Sharp’s house:            “The next thing I

remember was just my cousin Tanisha screaming and everyone ran outside and kind

of seen the back end of the car zooming down the street and my cousin [L.O.] hanging

out of the car.” Asked to explain in more detail, Sharp testified that Smith “pulled

out of the driveway, and he was zooming down the street. * * * [L.O.] was hanging

out the driver’s side of the door. * * * One leg was in and one leg was out.”

               After the parties rested at trial and per the state’s request, the court

instructed the jury as follows:

       [I]f you find the defendant — you can’t make up your minds, * * * you
       do have the right to consider a lesser included offense, and I provided
       one for abduction at that point.

       ***

       If you find that the state failed to prove beyond a reasonable doubt all
       of the essential elements of the offense of the kidnapping, then your
       verdict must be not guilty of that offense.
       You will continue your deliberations to decide whether the state has
       proved beyond a reasonable doubt all of the essential elements of the
       lesser included offense of abduction.

       If all of you are unable to agree on a verdict of guilty or not guilty of
       kidnapping, you will continue your deliberations to decide whether the
       state has proved beyond a reasonable doubt all of the essential
       elements of the lesser included offense of abduction.

       The offense of abduction is distinguished from kidnapping by the
       absence or failure to prove that the defendant abducted [L.O.] for the
       purpose of facilitating the commission of a felony.

       Before you can find the defendant guilty of abduction, you must find
       beyond a reasonable doubt, that on the 22nd day of October, 2017, in
       Cuyahoga County, Ohio, the defendant, without privilege to do so,
       knowingly by force or threat removed [L.O.] from the place where she
       was found.

       ***

       If you find that the state proved beyond a reasonable doubt all of the
       essential elements of the offense of abduction, your verdict must be
       guilty.

       If you find that the state proved — failed to prove beyond a reasonable
       doubt any one of the essential elements of the offense of abduction,
       your verdicts must be not guilty.

               On appeal, Smith argues that “[t]his instruction unduly prejudiced

[him], as it gave the jury an out, and an ability to find [him] guilty of something, in

an effort to appease the State and the victim, and avoid the fact that the State of Ohio

failed to produce a single legitimate piece of evidence to support a finding of the

primary offense of kidnaping.” (Emphasis sic.)

                The state, on the other hand, argues that the abduction jury

instruction was proper because “the jury could find that [Smith] removed L.O. from
her cousin’s home through force, but not find that [Smith’s] removal of L.O. was done

with a purpose of committing a felonious assault thereafter.”

               Upon review of the evidence in the record, we find that L.O.’s and

Sharp’s testimony about Smith dragging L.O. by the arm, and at gunpoint, to his car

and driving away with L.O. hanging out of the driver’s door was consistent and

credible. “It was within the province of the jury whether to believe [the witness

testimony]. We defer to the jury regarding credibility issues because the jury is able

to weigh the evidence and judge the credibility of witnesses by viewing the demeanor,

voice inflections, and gestures of the witnesses testifying.” State v. Royal, 8th Dist.

Cuyahoga No. 93903, 2010-Ohio-5235, ¶ 22.

               The jury obviously chose to believe L.O.’s and Sharp’s testimony.

Additionally, there is no evidence in the record that is inconsistent with this

testimony. Simply put, all the evidence at trial supports a conviction for abduction.

Accordingly, Smith’s second assigned error is overruled.

               Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

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

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

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR
