[Cite as State v. Woods, 2014-Ohio-4484.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100784


                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     GEORGE WOODS
                                                     DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-13-575199-A

        BEFORE: S. Gallagher, P.J., Keough, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                    October 9, 2014
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road, #613
Cleveland, OH 44118


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Maxwell Martin
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Appellant George Woods appeals his conviction for kidnapping and sexual

battery, the merger of offenses, and the sentence imposed by the trial court. For the

reasons stated herein, we affirm.

       {¶2} On June 11, 2013, appellant was indicted on two counts of rape and one

count of kidnapping, each with one- and three-year firearm specifications. The one-year

firearm specifications were later dismissed.

       {¶3} Appellant entered a plea of not guilty, and the matter proceeded to a jury trial.

 At trial, testimony and evidence were presented concerning an incident that gave rise to

the charges.

       {¶4} At the time of the alleged offenses, the victim was a 26-year-old female who

was a drug user and had prostituted herself for drugs “a couple of times.” The victim

testified that on July 6, 1993, she had been drinking with her mother all day. After

midnight she left her mother’s house so she could find drugs in order to get high. She

was unsuccessful and returned to her mother’s home, but she left without gaining entry.

According to the victim’s testimony, as she was walking in her mother’s neighborhood,

she saw an acquaintance, referred to as “Richard,” and asked for a ride home. His car

was parked near the road at the front of a big field with a house at the back, and it was

very dark. The victim testified that as she was getting into the car, two males carrying

shotguns approached. She saw the males pump the guns and “do the click-click.” She
heard one of them say to “grab the b**** before she run.” The victim testified one of the

males grabbed Richard, threw him in the back seat, was asking “where’s the money,” and

was beating him. She testified the other male grabbed her, put her in the front seat, and

forced her to perform oral sex, stating she better or she “was going to die.” The two

perpetrators took turns assaulting her. She believed she had no choice and that they were

going to kill her if she did not perform. She testified her clothes were taken off, but she

could not recall if she was vaginally raped. She remembered that when it was over, she

was on the ground, she felt a muzzle to the back of her head, and she was threatened not

to move. The victim testified that after the perpetrators left, Richard drove her to his

residence to give her clothing and then to her sister’s house.

       {¶5} On cross-examination, the victim denied that she had been walking out of a

drug house with Richard before the incident happened. She also denied that she had sex

with the perpetrators to get Richard out of a debt.

       {¶6} The victim’s sister testified that the victim was crying hysterically, she was

dirty, her hair was a mess, and she said she had been raped. The police were called, and

the victim was taken to the hospital. There were no named suspects as a result of the

initial police investigation.

       {¶7} Years later, in 2012, DNA testing was performed on genital swabs and the

victim’s shorts. The results revealed two DNA profiles; one was consistent with the

profile of the victim and the other with appellant. The DNA samples that were tested
were not degraded, and there was essentially no chance that anyone else on earth would

match the DNA profile.

       {¶8} Det. Christina Cottom, a detective in the sex crimes unit of the Cleveland

Police Department, testified that the case had been a cold case for which DNA testing had

not been available at the time of the crime.       She compiled a photo array that was

presented to the victim by a blind administrator. The victim did not identify any of the

individuals in the array, which included a photograph of appellant.            Det. Cottom

interviewed appellant, and a redacted version of the video recording was played to the

jury. During the interview, appellant stated Richard owed his cousin, Eric Hill, $80 and

that appellant went along with Hill to collect the debt. Appellant stated they approached

Richard and the victim as they were coming out of a house, there was an argument, and

“[w]e pulled a gun.” He indicated that Richard offered the victim up, but “she wasn’t

with it.” He stated they “started doing what we was going wanting to do. Basically

that’s how it went.” Appellant admitted the sex was not consensual. He stated, with

reference to Hill, “I gave him the gun that I had on me and I went on and raped her.”

Appellant stated his gun was a “Tec-9.” Appellant also indicated that “[i]t was basically

on me if they got shot or not.”

       {¶9} Appellant testified at trial. He testified that on July 6, 1993, he was assisting

Hill in collecting a debt for drugs. Appellant and Hill each had a gun. Appellant

testified that Richard and the victim were coming out of a house.                 Following

conversations that occurred, the victim got into the car and pulled her shorts off. Hill
and appellant took turns having vaginal sex with the victim and then left. Appellant

stated the sex was payment for the debt. Appellant denied that any oral sex occurred and

denied the use of a gun during the incident. Appellant conceded that usually when sex is

offered for drugs, the girl gets the drugs. He agreed that Richard owed the money and

that the victim did not receive any drugs.             He conceded telling the detective that

“[Richard] basically offered her but she wasn’t with it, you know.” He also testified that

the victim protested the arrangement by saying “[w]hy she got to, you know, take care of

it. She ain’t getting nothing out of it.” Appellant claimed that the sex was not forced

and denied kidnapping the victim. At the time of trial, Hill was deceased.

       {¶10} Appellant was found guilty of sexual battery, the lesser-included offense of

rape as amended in Count 1 of the indictment, and the jury found appellant did threaten

physical harm with a weapon. Appellant was also found guilty of kidnapping while

having a firearm on or about his person while committing the offense. A three-year

firearm specification was found to apply to each of the offenses.1

       {¶11} At sentencing, the trial court found that the offenses of sexual battery and

kidnapping were allied offenses of similar import subject to merger. The state elected

for appellant to be sentenced on the kidnapping count.                 The trial court imposed a

maximum sentence of 10 to 25 years, pursuant to R.C. 2929.11(B)(1) and (2) as it existed

in 1993 when the crimes were committed.                 The court merged the three-year gun

specifications and ordered the three years to be served prior to and consecutive with the

       1
           Appellant was found not guilty of Count 2 for rape with firearm specification.
base charge.     The sentence was ordered to be served consecutive to a term of

incarceration imposed in Cuyahoga C.P. No. CR-08-514171-A.             Appellant was also

classified as a sexually oriented offender.

       {¶12} Appellant filed this appeal, raising four assignments of error for our review.

 Under his first assignment of error, appellant claims the trial court erred by merging the

kidnapping into the sexual battery conviction. Although it is highly unusual that the

defendant would challenge a merger, as opposed to the non-merger of offenses, we

nonetheless find no error by the trial court.

       {¶13} When a defendant’s conduct results in the commission of two or more

“allied” offenses of similar import, that conduct can be charged separately, but the

defendant can be convicted and sentenced for only one offense. R.C. 2941.25(A). In

determining whether offenses merge, we consider the defendant’s conduct. State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44. “If the multiple

offenses can be committed by the same conduct, then the court must determine whether

the offenses were committed by the same conduct, i.e., ‘a single act, committed with a

single state of mind.’”     Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). If we answer both

questions affirmatively, then the offenses are allied offenses of similar import and will be

merged. Johnson at ¶ 50.
       {¶14} In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), the Supreme

Court of Ohio outlined several guidelines for determining whether a kidnapping offense

should be allied with a related offense. The court in Logan held:

       In establishing whether kidnapping and another offense of the same or
       similar kind are committed with a separate animus as to each pursuant to
       R.C. 2941.25(B), this court adopts the following guidelines:

       (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.

Id. at syllabus.

       {¶15} In this case, we find that the offenses of kidnapping and sexual battery could

be committed by the same conduct and the record reflects in fact that the offenses against

the victim were committed by the same conduct. Further, the restraint of the victim was

merely incidental to the sexual battery and was not committed with a separate animus.

The restraint of the victim was not prolonged, secretive, or substantial and did not result

in an increased risk of harm to the victim. As such, the trial court did not err by merging

the convictions for kidnapping and sexual battery. The trial court properly allowed the

state to elect which count to elect for sentencing purposes. Appellant’s first assignment

of error is overruled.
       {¶16} Under appellant’s second assignment of error, appellant claims his

conviction is not supported by sufficient evidence. A claim of insufficient evidence

raises the question whether the evidence is legally sufficient to support the verdict as a

matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d

541.   In reviewing a sufficiency challenge, “[t]he relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶17} Appellant argues that this was nothing other than a trade between a debt and

sex, that the victim prostituted herself for drugs “back then,” and that the victim got into

the car and pulled her shorts down on her own. However, the testimony reflected that

this incident did not involve an arrangement between the victim and the offenders.

Rather, it was Richard who owed the money and appellant stated that the victim “wasn’t

with it.”   According to the victim’s testimony, the perpetrators approached with

shotguns, she was forced into the front seat by the perpetrators, her clothes were taken

off, and she was threatened to perform or she “was going to die.” The victim’s sister

described the victim as crying hysterically and appearing in disarray. Appellant stated

during an interview with the detective that he and his cousin pulled a gun, that they

started doing what they intended, that he “went on and raped her,” that the sex was not

consensual, and that it was on him “if they got shot or not.” DNA evidence linked

appellant to the sexual offense. After viewing the evidence in a light most favorable to
the prosecution, we find any rational trier of fact could have found the elements of the

offenses proven beyond a reasonable doubt. Appellant’s second assignment of error is

overruled.

       {¶18} Under his third assignment of error, appellant challenges his conviction as

being against the manifest weight of the evidence. When reviewing a claim challenging

the manifest weight of the evidence, the court, reviewing the entire record, must weigh

the evidence and all reasonable inferences, consider the credibility of witnesses, 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. Reversing a conviction as being

against the manifest weight of the evidence should be reserved for only the exceptional

case in which the evidence weighs heavily against the conviction. Id. A claim that a

jury verdict is against the manifest weight of the evidence involves a separate and distinct

test that is much broader than the test for sufficiency. State v. Drummond, 111 Ohio

St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193.

       {¶19} Appellant challenges the credibility of the victim, noting her use of alcohol

and drugs and her prostitution for drugs. He argues that although the victim may have

been displeased, she went along with the arrangement to repay Richard’s debt. While

appellant claims the detective “put words in his mouth” during the interview, our review

of the transcript of the interview reflects otherwise. Appellant indicated he and his

cousin “pulled a gun,” that the sex was not consensual, and that he raped the victim.
This was consistent with the victim’s account of events. Upon our review of the entire

record, we cannot say the conviction is against the manifest weight of the evidence.

Appellant’s third assignment of error is overruled.

       {¶20} Under his fourth assignment of error, appellant maintains that it was error

not to indict and try Richard as an accomplice. Appellant lacks authority to challenge the

state’s decision to charge Richard as an aider and abettor to the crimes, and we are unable

to conclude that any of appellant’s constitutional rights were violated. Appellant’s fourth

assignment of error is overruled.

       {¶21} 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 appeal 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.



SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
