[Cite as State v. Long , 2018-Ohio-3013.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


 STATE OF OHIO,                                      :      OPINION

                  Plaintiff-Appellee,                :
                                                            CASE NO. 2017-L-094
         - vs -                                      :

 ANTHONY T. LONG,                                    :

                  Defendant-Appellant.               :


 Criminal Appeal from the Lake County Court of Common Pleas.
 Case No. 2016 CR 000571.

 Judgment: Affirmed in part and reversed in part; remanded.


 Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building, 105
 Main Street, P.O. Box 490, Painesville, OH 44077; and Stephanie G. Snevel, Special
 Prosecutor, P.O. Box 572, Wickliffe, OH 44092 (For Plaintiff-Appellee).

 Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
 Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
 Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Anthony T. Long, appeals from the July 11, 2017 judgment entry

of sentence of the Lake County Court of Common Pleas. The trial court’s judgment is

affirmed in part and reversed in part, and the matter is remanded.

        {¶2}      On November 18, 2016, appellant was indicted on two counts of Aggravated

Burglary, first-degree felonies, in violation of R.C. 2911.11(A)(1) (Counts 1 & 3) and two
counts of Burglary, second-degree felonies, in violation of R.C. 2911.12(A)(1) (Counts 2

& 4). Appellant entered a plea of not guilty. Count 2 was dismissed prior to trial at the

request of appellee, the state of Ohio.           The charges were renumbered: Count 1,

Aggravated Burglary; Count 2, Aggravated Burglary; and Count 3, Burglary.

       {¶3}    On May 23, 2017, the matter proceeded to a jury trial. The state presented

testimony from the victims, Clara Thomas and her son, A.T., and from Erica Lansberry,

Joseph Forman, Isaiah Haynes, and Patrolman William Sickles.

       {¶4}    Erica Lansberry testified that on March 6, 2016, she lived at the Brentwood

Apartments with Joseph Forman and her four children. Clara Thomas was her neighbor.

One of the bedrooms in Erica’s apartment shared a wall with Clara’s closet.

       {¶5}    At dusk on March 6, 2016, while she was outside smoking a cigarette in

front of her apartment building, Erica saw four people, three males and one younger

female, come around the corner. Erica testified they seemed upset. She saw the three

males enter the building; the female remained outside. Erica described the three males

entering the building as follows: (1) “tall, thin, white and very tall actually”; (2) “light-colored

skin, African American * * * a couple inches taller than the first boy”; and (3) “African

American, darker skin, shorter in stature than the other two and he had on a black and

red jacket.” Erica explained that at the time she did not know the identities of any of the

people she described; however, she learned them later.

       {¶6}    In court, Erica identified appellant as one of the people she saw on that

evening.

       {¶7}    Erica testified that after the three males entered the building, they went to

the downstairs apartment where Erica’s old neighbor and friend, Alisha, lived. They




                                                 2
spoke with Alisha’s son, Isaiah. Erica could not hear the conversation they had with

Isaiah, but she saw Isaiah go upstairs with them. Erica observed that while the others

appeared to go up the stairs in a hurry, Isaiah lagged behind.

       {¶8}   Erica testified that she saw the group stand in the hallway at the top of the

stairwell outside the closed door of Clara’s apartment unit. Isaiah stood back from the

rest of the group and was doing something on his phone; he looked distracted from what

was going on in front of him. Erica saw an arm reach out and knock on the door of Clara’s

unit. She thought it was Isaiah that knocked on the door, but she could not be positive.

       {¶9}   Erica explained that she looked away for a “split second” but turned back to

look at the top of the stairs because she was always afraid her children may come out of

her apartment. She saw the “skinny white guy” kick in the door. She heard a loud bang

and saw the three males enter the apartment. Erica testified that Isaiah remained behind,

looked shocked when the door was kicked open, and went back downstairs to his

apartment. Erica was still standing outside but heard what she described as “a lot of

yelling other noises besides yelling” going on within the apartment.

       {¶10} Erica testified that she saw Joseph exit their apartment and go into Clara’s

unit. She did not want to get involved and waited a minute to see if everyone was okay.

After Joseph entered the unit, Erica saw “the tall thin white boy” and “the other taller boy”

run out of the apartment and down the stairs. Erica identified the boys as “Andrew and a

boy named [K.L.].” She saw them knock on the door of Isaiah’s apartment. She testified

that by this time, she had the door to the building open and was trying to figure out what

was happening. She heard Andrew and K.L. talking to Isaiah. Andrew and K.L. then

exited the building and went around the corner to where the younger female was standing.




                                             3
       {¶11} Erica went upstairs to check on Joseph and Clara. She testified that the

door to Clara’s unit was open and she saw Joseph walk through the apartment, exit, and

go back into their apartment. She remained in the living room of Clara’s apartment. She

saw Clara’s son holding the side of his head and pacing back and forth, in and out of his

bedroom. When she asked if he was okay, his reply was unintelligible.

       {¶12} Erica explained that the apartment looked in disarray. She saw Clara

“peeking” her head out of what appeared to Erica as a closet or bathroom in Clara’s

bedroom. Clara appeared “shaken up.” Erica saw appellant with Clara and asked Clara

three times whether she was okay. Clara indicated she was. She did not observe any

injury to Clara. Erica did not speak with appellant.

       {¶13} Erica did not call the police on the night of the incident. She did, however,

give a statement to the police on March 12, 2016.

       {¶14} Joseph Forman testified that on March 6, 2016, he lived in the Brentwood

Apartments with Erica and her children. They lived next door to Clara.

       {¶15} On the night of the incident, Joseph was putting one of the children to bed,

when he heard a loud thump against the wall. He alerted Erica something was going on

next door. He walked out and saw the door of Clara’s apartment had been damaged.

When he walked into the apartment, he saw a young African American male,

approximately 15 years old, in the hallway. There was a Caucasian male, who looked a

little older, in front of the bedroom. Joseph testified that as the two males walked out of

the apartment, the Caucasian male walked up to him, got in his face, and made racial

remarks. Joseph told the male he did not want any problems and to get out. Joseph

walked towards voices he heard at the back of the apartment. A.T., who was sitting on




                                             4
the bed in his bedroom, looked distraught. After Joseph asked whether he was okay,

A.T. indicated he was fine.

      {¶16} Joseph testified that when he walked into the back bedroom, he saw an

African American male standing in the bedroom. He had never seen the man before and

knew he did not live in the building. Clara was in the closet. The closet was torn up, and

Joseph testified he could tell something had happened. Clara looked shaken, was crying,

and could barely speak; her shirt was not on, and she was attempting to cover herself

with something she was holding. When Joseph first asked Clara whether she was okay,

she did not respond and looked in the direction of the man. Joseph was concerned about

the reason the man was in Clara’s room, so Joseph asked him whether he was supposed

to be there and told him he should leave. The second time Joseph asked whether Clara

was okay, he could hear the trembling in her voice as she responded she was fine. He

asked the man to leave again. The man responded he belonged there and was trying to

deal with the situation. At that time, Clara “said something” to Joseph, and Joseph left

the apartment.

      {¶17} In court, Joseph identified appellant as the man he had seen in the bedroom

in Clara’s apartment.

      {¶18} On cross-examination, Joseph testified there was a younger female in the

apartment building at the bottom of the stairwell. He did not know who she was, but he

felt things calmed down after she and the two younger males had exited the building.

Joseph returned to his apartment, then went out to have a smoke and observe what was

happening. He spoke with Clara later that evening.




                                            5
       {¶19} Joseph testified that he did not call the police because he feared retaliation,

and he did not recall seeing any police at the apartment that night. He explained that in

that area there were problems with violent crime. The police contacted him the following

day, and he provided a statement.

       {¶20} Isaiah Haynes testified that he is 19 years old, and that on March 6, 2016,

he was living in the Brentwood Apartments with his mother, brother, and sisters. That

evening, while he was on the phone with his girlfriend, he heard a knock at the door. He

was not expecting visitors. At the door were appellant, K.L., and T.L. Isaiah testified that

appellant raised him and is his cousin, although not a blood relation; K.L. is a blood-

related cousin; and T.L. is also a cousin. Isaiah testified that Andrew Clelland also

showed up at his apartment at some point, but he did not arrive there at the same time

as appellant, K.L., and T.L.; Isaiah and Andrew “grew up like brothers.”

       {¶21} Isaiah explained that they engaged in “family talk,” but the conversation got

right to the point, and appellant asked Isaiah if he knew A.T. and where A.T. lived. After

informing them A.T. lived upstairs, Isaiah led the group to A.T.’s apartment where A.T.

lived with his mother, Clara Thomas. Isaiah knocked on the door, and when A.T. asked

who was there, Isaiah identified himself. Isaiah testified that when A.T. opened the door,

K.L. “peeked around,” looked at A.T., and punched him in the face. A.T. said something

along the lines of “‘That’s why we got your sister.’” The group then looked at each other,

entered the apartment, and a fight broke out between A.T., K.L., and Andrew. Clara came

running out of her room and into the hallway of the apartment. She was yelling at them

to stop fighting and that she was pregnant. At that point, appellant ran into the apartment

and put his body between Clara’s body and the fight. A.T. got away from Andrew and




                                             6
K.L. and ran into his mother’s walk-in closet. Everyone else followed him into the closet

where Clara stood on the left side. Isaiah testified he saw Andrew hit A.T. After the fight,

A.T. was on the floor curled up in a ball, and Isaiah heard Andrew screaming and yelling

at the neighbors.

       {¶22} Isaiah explained that while he was at the door of A.T. and Clara’s apartment,

he was talking to his girlfriend on speaker phone. He was not looking at the door. Isaiah

did not see Andrew kick in the apartment door, and he did not hear the door get kicked.

While they were in the apartment, Isaiah saw K.L. and Andrew hitting A.T., but he did not

see Clara get hit or pushed against the wall of the closet. Clara was wearing a red robe

with a design on it, and she was yelling and crying and appeared “livid” about the incident.

Isaiah did not observe any injury to Clara but knew his mother took Clara to the hospital

after the incident.

       {¶23} Isaiah further testified he had no knowledge that K.L. or appellant wanted

to fight A.T. but stated he assumed K.L. would want to fight A.T. due to something that

happened to K.L.’s sister. Isaiah testified he knew something had happened with K.L.’s

sister at least a week or two prior to the fight with A.T., but he “was just told not to say

anything.”

       {¶24} Isaiah talked to the police the next day and provided a written statement

about the incident. Isaiah was not arrested or charged.

       {¶25} A.T. testified he is 16 years old. On March 6, 2016, he was 14 years old

and lived in the Brentwood Apartments with his mother, Clara Thomas. After going to

church and his grandmother’s house, he and his mother returned to Brentwood in the

evening. He heard a knock at the door and went to answer it. Isaiah, his downstairs




                                             7
neighbor, was at the door with some other people. One of the people was Caucasian

with a beard and a mustache. A.T. knew his name was “Drew.” A.T. testified there was

also a young female, a male teen, and an adult male at the door. In court, A.T. identified

appellant as the adult.

       {¶26} When A.T. answered the door the teen punched him, A.T. fell to the floor,

and the teen and the Caucasian male punched and kicked him. A.T. testified he then ran

back to his mother’s room. His mother was lying in bed. A.T. ended up on the closet

floor where they punched and kicked him again. He explained that his mother tried to get

them off him, and the adult pushed her into the wall on the left side of the closet. Isaiah,

the teen, and the Caucasian male scattered and left the building. A.T. saw his mother

having a conversation with appellant after the incident. His mother was crying and

appeared shocked and scared.

       {¶27} A.T. stated that after the incident, his mother told him there was something

wrong with her stomach and that she had to go to the hospital. Nobody called the police

that night, but A.T. talked to the police the next day and provided a written statement.

       {¶28} On cross-examination, A.T. testified that when he was in the closet being

kicked and punched, he tried to cover his face with his hands. After the fighting, he went

back to his room to turn off his game while appellant was talking to his mother. When he

returned to his mother’s room, appellant was sitting on his mother’s bed talking to her.

       {¶29} Clara Thomas testified that on March 6, 2016, she lived in the Brentwood

Apartments with her son, A.T. After she and A.T. got home from church, she was in her

bedroom, and A.T. was in his room playing games. She was not feeling well and was

lying in her bed. Clara heard a knock at the door and yelled for A.T. to answer it. She




                                             8
heard something going on in the living room but did not know what was happening until

her son ran into her room. She got up and saw there were people in her home. At the

time, she did not know their names but later learned their identities. She testified she saw

Andrew Clelland and K.L. running after her son and into the closet. Clara followed them

into the closet and was pushing them off her son. She testified appellant pushed her

against the wall of the closet. Clara testified that after being pushed, she said, “‘What’s

going on? I’m pregnant. I’m his mother.’” Appellant let her go and apologized, stating,

“‘Oh, I’m sorry. I thought you were his sister. I didn’t know you were his mother.’”

          {¶30} Clara testified Andrew is tall and slim and K.L. is short. She saw Andrew

and K.L. hit her son. She did not see anyone else hit her son.

          {¶31} In court, Clara identified appellant as the person who pushed her in the

closet.

          {¶32} Clara explained that after the incident she was sore, and she had some

bleeding. Alisha Haynes took her to the hospital that evening. Clara testified the bleeding

resolved itself. She stated that A.T. had a “knot” on his forehead and on the back of his

head.

          {¶33} The next day, Clara went to the police department with her son and her

mother. She notified the police of the incident. She spoke with Officer Sickles and

completed a written statement.

          {¶34} Clara testified that after the incident she did not feel safe in her home. She

and her son moved in April 2016 because she started a new job and because she was

not comfortable living in the apartment.




                                               9
       {¶35} On cross-examination, Clara testified that on the night of the incident, she

was in her first trimester of pregnancy and was not feeling well due to a stomachache

from something she had eaten. She stated that two of her neighbors, Joseph and Erica,

checked on her after the incident. Clara indicated that after the younger males left the

apartment, appellant stayed and spoke with her.

       {¶36} Patrolman William Sickles testified he works for the Painesville Police

Department. He explained he is familiar with the Brentwood Apartments because he has

had to respond there for various crimes.

       {¶37} On March 7, 2016, Clara Thomas and A.T. came to the police station, and

Officer Sickles spoke with them. They told him about the events of March 6, 2016. They

had done some research and were able to identify the individuals who had been in their

home. Officer Sickles collected written statements from Clara and A.T., and Clara filled

out a medical release form. He did not observe injuries to either Clara or A.T. at the time

of the interview.

       {¶38} Officer Sickles identified Andrew Clelland, K.L., and appellant as suspects.

He determined the ages of those individuals to be 18 years old, 16 years old, and 38

years old, respectively.

       {¶39} Officer Sickles testified that later in the evening of March 7, 2016, Clara

called the police station to report Andrew Clelland was outside of her apartment building.

Officer Sickles testified Clara was scared and frantic. Officer Sickles and another officer

responded to the call but were unable to locate Andrew. After checking for Andrew, he

spoke with Clara, and she was “very frantic and scared.” While he spoke with her, she

looked out her front window, saw Isaiah Haynes, and pointed him out, indicating police




                                            10
should speak with him because he was at her apartment during the incident on the

previous evening.

      {¶40} Officer Sickles spoke with Isaiah, who provided a written statement and a

video interview.    Officer Sickles explained Isaiah was not charged.     Officer Sickles

testified he was aware Isaiah had entered the apartment but found that “he was more of

an unsuspecting witness.”

      {¶41} With the statements from Clara, A.T., and Isaiah, Officer Sickles was able

to come to a determination of the charges for Andrew, K.L., and appellant.

      {¶42} Officer Sickles conducted a further investigation into the incident and

interviewed other witnesses. Later in the week, Erica Lansberry contacted police to report

she had witnessed something that occurred at her apartment. Officer Sickles interviewed

Erica, and she gave a written statement. Erica also advised that her boyfriend, Joseph

Forman, had intervened in the incident. Officer Sickles called Joseph, who came and

gave a written statement. During the course of the investigation, Officer Sickles took

photos of the residence and spoke with Clara about the damage to her residence.

      {¶43} The jury found appellant guilty on all counts. Appellant was sentenced on

July 3, 2017. Upon a joint recommendation from the parties, the trial court merged the

Burglary count with the Aggravated Burglary counts. The trial court did not specify with

which of the Aggravated Burglary counts it should merge, and there is no indication the

state made any election. Defendant requested the court also merge the two counts of

Aggravated Burglary, but the trial court determined they were not subject to merger. The

trial court imposed a 5-year prison sentence on each count of Aggravated Burglary, to be




                                           11
served concurrently with each other, with 46 days of credit for time served. Appellant was

also ordered to pay costs. The trial court filed its sentencing entry on July 11, 2017.

       {¶44} Appellant noticed a timely appeal and asserts three assignments of error.

       {¶45} Appellant’s first assignment of error states:

              The trial court erred when it limited defense counsel’s cross
              examination of two key witnesses in violation of the defendant-
              appellant’s rights to due process and fair trial and to confront
              witnesses as guaranteed under the Fifth, Sixth and Fourteenth
              Amendments of the United States Constitution and Section 10,
              Article I of the Ohio Constitution.

       {¶46} Prior to trial, the state filed a motion in limine, requesting the court limit

appellant from questioning any witness at trial about the details surrounding an alleged

sexual assault occurring between A.T. and appellant’s daughter. The state argued the

nature of the charge and the specific details related to the uncharged criminal conduct

would be highly prejudicial. Appellant filed a brief in opposition, arguing evidence of the

alleged sexual assault was pertinent to his defense.         Appellant maintained it was

necessary to establish why he interacted with Clara. He also argued the sexual assault

allegations could demonstrate bias on behalf of Clara and A.T.

       {¶47} The trial court granted the motion in part and denied it in part, stating:

              * * * I did prohibit the [appellant] from cross-examining [A.T.],
              regarding this matter. The purpose of presenting this evidence, and
              the [appellant] filed an opposition setting forth what his position was,
              that he believes he had a right to delve into or present evidence into
              why [appellant] may have engaged in certain conduct that he did that
              night or what his motive was or his intent was that night. And
              purportedly it’s based on trying to look further into this incident that
              allegedly occurred between * * * his daughter and A.T. Appellant felt
              he had a right to delve into that to try and explain what [he] was doing
              that night and I agree with him in that regards.

              So I was not prohibiting him from inquiring into witnesses who have
              perhaps the knowledge as to why [appellant] did what he did that


                                             12
              night. Certainly, would permit [appellant] to testify in this matter, to
              explain why he did whatever he did that evening, engaged in
              whatever conduct he did that night and if it includes wanting to look
              into these allegations, then he was going to be permitted to do that.
              And if * * * anyone else had [knowledge] in regards to that, I was
              going to let them inquire into that.

              What the concern, question as to obviously the hearsay issues in
              regards to people had knowledge of this case solely on [appellant]
              telling them and that was going to be impermissible hearsay and I
              wasn’t going to allow that. But I will allow evidence of that to come
              out if it pertains to [appellant’s] knowledge.

              I did rule that cross-examining [A.T.] concerning the incident and
              whether it happened or didn’t happen or any other details about that
              was completely irrelevant to this particular case.

       {¶48} Appellant argues the trial court denied him the opportunity to establish Clara

and A.T. may have had a motive to lie, in violation of his Sixth Amendment right to confront

witnesses.

       {¶49} The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him[.]” See also Ohio Constitution, Article I, Section 10 (“the party

accused shall be allowed * * * to meet the witnesses face to face”). “However, the

Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to whatever extent, the defense

might wish.’” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶83, quoting Delaware

v. Fensterer, 474 U.S. 15, 20 (1985). “Trial courts have ‘wide latitude * * * to impose

reasonable limits on such cross-examination[.]’” State v. McKelton, 148 Ohio St.3d 261,

2016-Ohio-5735, ¶170, quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

       {¶50} Under Ohio law, “[c]ross-examination shall be permitted on all relevant

matters and matters affecting credibility.” Evid.R. 611(B). “Bias * * * or any motive to


                                             13
misrepresent may be shown to impeach the witness either by examination of the witness

or by extrinsic evidence.” Evid.R. 616(A). However, Evid.R. 611(A) provides, in pertinent

part, that “[t]he court shall exercise reasonable control over the mode and order of

interrogating witnesses and presenting evidence[.]”

       {¶51} On appeal, when an appellant challenges a trial court’s limitation on cross-

examination, the standard of review is determined by the nature of the limitation.

McKelton, supra, at ¶172. “‘Limitations * * * that deny a defendant “the opportunity to

establish that the witnesses may have had a motive to lie’ infringe on core Sixth

Amendment rights’ and are reviewed de novo.” Id., quoting State v. Gonzales, 151 Ohio

App.3d 160, 2002-Ohio-4937, ¶45 (1st Dist.), quoting United States v. Nelson, 39 F.3d

705, 708 (7th Cir.1994) (emphasis sic). To establish a confrontation violation, appellant

must show he was “‘prohibited from engaging in otherwise appropriate cross-

examination.’” Id., quoting Van Arsdall, supra, at 680. If a trial court, however, allowed

cross-examination to establish a motive to lie but limited the extent to which defense

counsel could question witnesses regarding the motive, we review for an abuse of

discretion because “‘it is of peripheral concern to the Sixth Amendment how much

opportunity defense counsel gets to hammer that point home to the jury.’” Id., quoting

Nelson, supra, at 708.

       {¶52} Appellant maintains “the trial court partially granted the State’s Motion-in-

Limine to restrict the defense in its cross examination of A.T. and his mother regarding

allegations that A.T. had sexually assaulted Mr. Long’s daughter.” A review of the record

reveals, however, that the trial court limited cross-examination of A.T. concerning details

about the alleged sexual assault and whether it happened, finding that evidence was




                                            14
irrelevant. Appellant was not denied the opportunity to establish Clara and A.T.’s motive

to lie; rather, the trial court limited the scope and extent to which appellant could cross-

examine A.T. about that motive. Further, the trial court allowed the defense to question

witnesses about the allegations to the extent it established appellant’s intent on the

evening of the incident. Accordingly, we review the trial court’s limitation on the cross-

examination of A.T. for an abuse of discretion. An abuse of discretion is the trial court’s

“‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler,

2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11

(8th Ed.2004).

       {¶53} Under Evid.R. 402:

              All relevant evidence is admissible, except as otherwise provided by
              the Constitution of the United States, by the Constitution of the State
              of Ohio, by statute enacted by the General Assembly not in conflict
              with a rule of the Supreme Court of Ohio, by these rules, or by other
              rules prescribed by the Supreme Court of Ohio. Evidence which is
              not relevant is not admissible.

Evid.R. 401 defines “relevant evidence” as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

       {¶54} Although evidence appellant’s daughter made criminal allegations against

A.T. is relevant to establish a motive for A.T. and his mother to misrepresent the facts,

specific details about those allegations are irrelevant. We do not find the trial court

abused its discretion in limiting the cross-examination of A.T.

       {¶55} On the record, defense counsel indicated he would have questioned the

witnesses about the alleged sexual assault to establish bias, but he did not make a proffer

of the questions he wanted to ask. Because there was no proffer, the trial court made no



                                            15
ruling on whether the potential questions were admissible, and the issue was not

preserved for review on appeal. See State v. Archibald, 11th Dist. Lake Nos. 2006-L-047

& 2006-L-207, 2007-Ohio-4966, ¶43-44. Without a proffer of a specific question and a

ruling from the trial court, we would have to speculate as to what question defense

counsel wanted to ask and whether the trial court would have sustained or overruled the

objection. We will not engage in that speculation.

       {¶56} Appellant’s first assignment of error is without merit.

       {¶57} Appellant’s second assignment of error states:

       {¶58} “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.”

       {¶59} Appellant argues the jury verdict was against the manifest weight of the

evidence because the evidence presented was “incredible, vague, contradictory,

conflicting, unreliable, fragmentary, self-serving, and uncertain.”

       {¶60} To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact “‘lost its way and created such a manifest miscarriage of justice that the conviction

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

(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). “This court [is]

not in a position to view the witnesses who testified below and observe their demeanor,

gestures, and voice inflections, and use those observations in weighing the credibility of

the proffered testimony.” State v. Long, 127 Ohio App.3d 328, 335 (4th Dist.1998)

(citations omitted). Therefore, in weighing the evidence submitted at a criminal trial, an




                                             16
appellate court must give substantial deference to the factfinder’s determinations of

credibility. State v. Tribble, 2d Dist. Montgomery No. 24231, 2011-Ohio-3618, ¶30, citing

State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

       {¶61} Appellant was convicted of two counts of Aggravated Burglary and one

count of Burglary. The state was required to prove, beyond a reasonable doubt, appellant

violated the following statutes:

              R.C. 2911.11 Aggravated Burglary
              (A) No person, by force, stealth, or deception, shall trespass in an
              occupied structure or in a separately secured or separately occupied
              portion of an occupied structure, when another person other than an
              accomplice of the offender is present, with purpose to commit in the
              structure or in the separately secured or separately occupied portion
              of the structure any criminal offense, if any of the following apply:

              (1) The offender inflicts, or attempts or threatens to inflict physical
              harm on another[.]

              R.C. 2911.12 Burglary
              (A) No person, by force, stealth, or deception, shall do any of the
              following:

              (1) Trespass in an occupied structure or in a separately secured or
              separately occupied portion of an occupied structure, when another
              person other than an accomplice of the offender is present, with
              purpose to commit in the structure or in the separately secured or
              separately occupied portion of the structure any criminal offense[.]”

The jury was also instructed on the definitions of Assault, Menacing, and Complicity or

Aiding and Abetting.

       {¶62} Although the witnesses provided inconsistent testimony, the jury was in the

best position to view the witnesses and evaluate their credibility. Further, even in light of

the contradictory evidence, there was sufficient evidence pursuant to which the jury could

have found appellant guilty under a theory of Complicity. Upon review of the evidence




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outlined above, we find the jury did not lose its way or create a manifest miscarriage of

justice by finding appellant guilty of Burglary and Aggravated Burglary.

       {¶63} Appellant’s second assignment of error is without merit.

       {¶64} Appellant’s third assignment of error states:

              The trial court erred to the prejudice of the defendant-appellant when
              it failed to merge his convictions for aggravated burglary, in violation
              of his rights against double jeopardy under the Fifth and Fourteenth
              Amendment to the United States Constitution and Article I, Section
              10 of the Ohio Constitution.

       {¶65} Appellant maintains the trial court should have merged appellant’s two

Aggravated Burglary counts. In response, appellee contends the two offenses cannot

merge because each count involved a separate victim.

       {¶66} R.C. 2941.25 “incorporates the constitutional protections against double

jeopardy.   These protections generally forbid successive prosecutions and multiple

punishments for the same offense.” State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-

2, ¶7. “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.” R.C. 2941.25(A).

“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.”

R.C. 2941.25(B).

       {¶67} “The determination whether an offender has been found guilty of allied

offenses of similar import ‘is dependent upon the facts of a case because R.C. 2941.25




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focuses on the defendant’s conduct,’ and ‘an offense may be committed in a variety of

ways.’” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶18, quoting State v.

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶26 & ¶30.

      {¶68} “When the defendant’s conduct constitutes a single offense, the defendant

may be convicted and punished only for that offense. When the conduct supports more

than one offense, however, a court must conduct an analysis of allied offenses of similar

import[.]” Ruff, supra, at ¶24, citing R.C. 2941.25(B). “As a practical matter, when

determining whether offenses are allied offenses of similar import within the meaning of

R.C. 2941.25, courts must ask three questions when the defendant’s conduct supports

multiple offenses:

             (1) Were the offenses dissimilar in import or significance?
             (2) Were they committed separately? and
             (3) Were they committed with separate animus or motivation?

Ruff, supra, at ¶31; see also id. at ¶13, citing State v. Moss, 69 Ohio St.2d 515, 519

(1982). “An affirmative answer to any of the above will permit separate convictions.” Id.

at ¶31.

      {¶69} Prior to Ruff, courts have held that when an offender “enters a residence

and threatens, attempts, or inflicts physical harm on more than one occupant during the

burglary, the aggravated-burglary offenses merge.” State v. Marriott, 2d Dist. Clark No.

2008 CA 48, 2010-Ohio-3115, ¶46; see also State v. Lynott, 8th Dist. Cuyahoga No.

89079, 2007-Ohio-5849, ¶29. The Aggravated Burglary statute is meant to enhance the

seriousness of a trespass under circumstances where the offender raises the risk of harm

to occupants of a structure. See id. (“R.C. 2911.11(A) is not meant to criminalize an




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offender’s conduct toward the occupants of the structure; rather, the prosecutor may

charge the defendant with an assault offense to satisfy that interest.”).

       {¶70} In State v. Burton, a post-Ruff decision, the appellant was convicted of four

counts of Aggravated Burglary because four victims were harmed during a home

invasion.     7th Dist. Jefferson No. 13 JE 39, 2015-Ohio-2247.         The appellate court

determined the Aggravated Burglary counts should merge, stating:

                While on first blush it might appear, in light of the separate victims,
                that the aggravated burglary offenses herein are of dissimilar in
                import or significance—in other words, that each offense caused
                separate, identifiable harm—under the [rationale] of Marriott, Lynott
                and Adkins those victims are what elevated the offense from a simple
                burglary to the more severe “aggravated” form of the offense. At the
                heart of an aggravated burglary is the trespass. And there was only
                one identifiable trespass into the home here.

Id. at ¶63.

       {¶71} In support of its argument the two counts of Aggravated Burglary should not

merge, appellee directs our attention to this court’s decision in State v. Jameson, in which

we stated, “counts five through fourteen cannot merge because they represent offenses

against separate victims who suffered separate, individual harm as a result of the

offenses to which appellant pleaded.” 11th Dist. Ashtabula No. 2014-A-0069, 2015-Ohio-

4634, ¶18 (emphasis sic). That case, however, is inapplicable here because it pertained

to multiple counts of Felonious Assault, rather than multiple counts of Aggravated

Burglary. Appellee has cited to no case where multiple victims in the same structure

support multiple counts of a single incident of Aggravated Burglary.

       {¶72} Here, although the indictment lists separate victims for each of appellant’s

two counts of Aggravated Burglary, both counts stemmed from the same trespass.

Therefore, the two counts of Aggravated Burglary are allied offenses of similar import that


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must merge. The trial court erred in failing to merge those counts, and a remand is

required for the counts to merge, with the state electing on which charge to proceed. See

Whitfield, supra, at ¶25(“If, upon appeal, a court of appeals finds reversible error in the

imposition of multiple punishments for allied offenses, the court must reverse the

judgment of conviction and remand for a new sentencing hearing at which the state must

elect which allied offense it will pursue against the defendant.”).

       {¶73} Appellant’s third assignment of error has merit.

       {¶74} The judgment of the Lake County Court of Common Pleas is affirmed in part

and reversed in part, and this matter is remanded for a limited resentencing.



COLLEEN MARY O’TOOLE, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only.




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