[Cite as State v. Henderson, 2014-Ohio-3121.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                    :   Hon. Sheila G. Farmer, J.
                                                :   Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :
JOHNNIE HENDERSON, JR.                          :   Case No. 13CA98
                                                :
                                                :
        Defendant - Appellant                   :   OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Richland County
                                                    Court of Common Pleas, Case No.
                                                    2013-CR-0409



JUDGMENT:                                           Affirmed in Part, Reversed in Part,
                                                    and Remanded


DATE OF JUDGMENT:                                   July 14, 2014



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JAMES J. MAYER, JR.                                 RANDALL E. FRY
Prosecuting Attorney                                10 West Newlon Place
                                                    Mansfield, OH 44902
By: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
Richland County, Case No.13CA98                                                        2

Baldwin, J.

     {¶1}      Appellant Johnnie Henderson appeals a judgment of the Richland County

Common Pleas Court convicting him of kidnapping (R.C. 2905.01(A)(4)) and rape (R.C.

2907.02(A)(2)). Appellee is the State of Ohio.

                             STATEMENT OF FACTS AND CASE

     {¶2}      On June 20, 2013, appellant went to the home of his friends, Corey Payne

and S.C., to ask for assistance in walking home. Appellant, who S.C. knew by his street

name of “Red Bone,” was intoxicated. He gave synthetic marijuana, known as “posh,”

to Corey. Corey did not want to leave because his children were visiting, and so S.C.

offered to walk appellant home. Appellant agreed to give S.C. marijuana located at his

apartment if she would help him walk home.

     {¶3}      After reaching appellant’s apartment, S.C. went to the kitchen for a drink

of water.     Appellant stood too closely behind her, making her uncomfortable.      She

began to get nervous when appellant started looking for the promised marijuana. When

S.C. told appellant that she was going to leave, appellant told her she could not leave

because she was “about to get some dick.” Tr. 148. S.C. began to cry and ran for the

door. Appellant grabbed her from behind and placed her in a chokehold.

     {¶4}      When S.C. awoke, she was naked and appellant was on top of her,

engaging in sexual intercourse with her. She managed to push appellant off her, and

he pushed her back onto the bed. He pinned her on her stomach. S.C. asked to use

the bathroom. While in the bathroom, she found her purse and dialed 911, although

she did not speak into the phone.
Richland County, Case No.13CA98                                                      3


      {¶5}   Appellant left S.C. alone for a moment, and she ran for the door.

Appellant tripped her, and pinned her down. Appellant took a glass crack pipe located

nearby, heated the ends, and placed it in her vaginal area. Appellant suddenly stood up

and began looking out the window. S.C. again dialed 911, and spoke to an operator.

S.C. told the operator that her friend would not allow her to leave his home. Appellant

then opened the door and allowed S.C. to leave.

      {¶6}   S.C. ran into the street naked, yelling for help. She met a family friend

and told him that appellant had just raped her. S.C. was crying and hysterical. She

used the friend’s phone to call her mother, repeating that Red Bone had raped her.

      {¶7}   S.C. was taken to the hospital. No injuries were noted. Appellant gave a

statement to the nurse and to police.

      {¶8}   Mansfield Police officers arrived at appellant’s apartment and found

appellant lying unresponsive on the floor near the front door.   They obtained a search

warrant and recovered S.C.’s bra, shirt and phone from appellant’s apartment, as well

as a crack pipe.

      {¶9}   Appellant gave a taped statement to police. He claimed that he was out

walking and came across S.C. near Simpson School. They stopped at S.C.’s house,

and appellant gave “posh” to Corey. They started to walk to appellant’s house, talking

about “sex for drugs.” Tr. 312. According to appellant, S.C. agreed to have sex with

him in exchange for crack cocaine. Appellant claimed that when they reached his

apartment, S.C. went to the bathroom, then engaged in consensual sex with him on the

couch.   He told police that he did not ejaculate because his phone rang, and he was
Richland County, Case No.13CA98                                                      4


afraid it was his girlfriend. By the time he finished his phone call, S.C. had put her

clothes on and left.

      {¶10}   Appellant was indicted by the Richland County Grand Jury with kidnapping

(R.C. 2905.01(A)(4)), felonious assault (R.C. 2903.11(A)(1)), and two counts of rape

(R.C. 2907.02(A)(2)). The case proceeded to jury trial. The court allowed the jury to

consider the lesser included offense of attempted rape as to Count 4 of the indictment.

The jury found appellant guilty of counts one and three, kidnapping and rape. He was

found not guilty of felonious assault and the remaining count of rape, including the

lesser included offense.

      {¶11}   At sentencing, appellant and the State agreed that Counts 1 and 3 were

allied offenses and should therefore merge. The State opted to sentence on the rape

conviction. The court failed to merge the offenses and instead sentenced appellant to

eight years incarceration on each count, to be served concurrently. Appellant assigns

three errors on appeal:

      {¶12}   “I. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO

EIGHT YEARS OF INCARCERATION ON COUNT II OF THE INDICTMENT AND

STATING THE APPELLANT SHOULD RECEIVE FIVE YEARS OF MANDATORY

POST RELEASE CONTROL ON COUNT II OF THE INDICTMENT.

      {¶13}   “II.     THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL DID

NOT RENEW HIS CRIMINAL RULE 29 MOTION OF ACQUITTAL AT THE

CONCLUSION OF THE CASE, THEREBY WAIVING ANY ERROR MADE BY THE
Richland County, Case No.13CA98                                                            5


TRIAL JUDGE IN OVERRULING THE RULE 29 MOTION FOR ACQUITTAL MADE BY

THE TRIAL COUNSEL AT THE END OF THE STATE’S CASE.

          {¶14}   “III. THE VERDICT OF THE JURY FINDING THE APPELLANT GUILTY

ON COUNT I, KIDNAPPING, AND COUNT III, RAPE, WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                                   I.

          {¶15}   Appellant argues that he should be resentenced because the court

improperly sentenced him on count 2, felonious assault, of which he was found not

guilty.

          {¶16}   The court’s judgment correctly identifies the counts of which appellant was

convicted as count one, kidnapping, and count three, rape. However, in the sentencing

portion of the judgment, the court sentenced appellant on counts one and two, but not

on count three. The State concedes that there is a scrivener’s error in the sentencing

entry.       From the transcript of the sentencing hearing, it is clear that the court

understood he was sentencing appellant on Count 1 of kidnapping, and Count 3 of rape,

and the court apparently mislabeled the second conviction as “count 2” in the

sentencing entry.

          {¶17}   The State further notes that appellant and the State agreed at sentencing

that the offenses were allied offenses of similar import, and the State opted to have

appellant sentenced only on count three of rape. Instead of merging the offenses, the

court in its sentencing entry sentenced appellant separately, but to concurrent terms.

The court erred in failing to merge the offenses and sentence appellant solely on count

three of rape, as conceded by the State.
Richland County, Case No.13CA98                                                           6


      {¶18}   The first assignment of error is sustained.

                                                II.

      {¶19}   In his second assignment of error, appellant argues that his trial counsel

was ineffective for failing to renew his motion for acquittal based on insufficient evidence

at the conclusion of the case.

      {¶20}   A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show that counsel's performance fell

below an objective standard of reasonable representation and but for counsel’s error,

the result of the proceedings would have been different. Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d 136,

538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result. Id.

      {¶21}   Crim. R. 29(A) provides that the court on the motion of defendant or on its

own motion, after the evidence on either side is closed, shall order a judgment of

acquittal if the evidence is insufficient to sustain a conviction.   Appellant argues that

counsel waived his right to raise the sufficiency of the evidence on appeal by failing to

renew his motion for acquittal at the conclusion of the case, citing State v. Whitmeyer,

20 Ohio App. 3d 279, 485 N.E.2d 1055 (1984).

      {¶22}   However, the Ohio Supreme Court has held that a failure to timely make a

Crim.R. 29(A) motion during a jury trial does not waive an argument on appeal

concerning the sufficiency of the evidence. State v. Jones, 91 Ohio St.3d 335, 346, 744
Richland County, Case No.13CA98                                                            7

N.E.2d 1163, 2001-Ohio-57; State v. Carter, 64 Ohio St.3d 218, 223, 594 N.E.2d 595

(1992). In both Jones and Carter, the Ohio Supreme Court stated that the defendant's

“not guilty” plea preserves his right to object to the alleged insufficiency of the evidence.

Id. This Court has previously recognized that a Crim. R. 29 motion is not necessary to

preserve the issue of sufficiency of the evidence for appeal. State v. Straubhaar, 5th

Dist. Stark No. 2008 CA 00106, 2009-Ohio-4757, ¶40.

      {¶23}   Further, appellant has not demonstrated that the result of the proceeding

would have been different had counsel made a motion for a judgment of acquittal based

on the sufficiency of the evidence. An appellate court's function when reviewing the

sufficiency of the evidence is to determine 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, paragraph two of the syllabus (1991).

      {¶24}   Kidnapping is defined by R.C. 2905.01(A)(4), which reads:

      {¶25}   “(A) No person, by force, threat, or deception, or, in the case of a victim

under the age of thirteen or mentally incompetent, by any means, shall remove another

from the place where the other person is found or restrain the liberty of the other

person, for any of the following purposes:

      {¶26}   “(4) To engage in sexual activity, as defined in section 2907.01 of the

Revised Code, with the victim against the victim's will[.]”

      {¶27}   Rape is defined by R.C. 2907.02(A)(2), which reads: “No person shall

engage in sexual conduct with another when the offender purposely compels the other

person to submit by force or threat of force.”
Richland County, Case No.13CA98                                                          8


      {¶28}   S.C. testified that after she walked appellant to his apartment, she told

appellant that she was going to leave. She testified that appellant told her she could not

leave because she was “about to get some dick.” Tr. 148. S.C. began to cry and ran

for the door. Appellant grabbed her from behind and placed her in a chokehold. When

S.C. awoke, she was naked and appellant was on top of her, engaging in sexual

intercourse with her.   This is sufficient evidence when viewed in a light most favorable

to the State to support the convictions for kidnapping and rape.

      {¶29}   The second assignment of error is overruled.

                                               III.

      {¶30}   In his third assignment of error, appellant argues that the judgment is

against the manifest weight of the evidence. He stresses the absence of any physical

injuries to S.C., and argues that his version of the facts as provided through his

statement to the police is more credible than S.C.’s testimony.

      {¶31}   As noted in assignment of error two, S.C.’s testimony was sufficient, if

believed by the jury, to convict appellant of rape and kidnapping. When S.C. ran into a

family friend in the street after running from appellant’s home, she was naked and

hysterical, S.C. kept yelling that appellant had raped her.    S.C. also told the nurse at

the hospital and the Mansfield police that appellant had raped her. Physical harm is not

an element of the offense, and the jury apparently disbelieved S.C’s testimony that

appellant had repeatedly punched her, based on the jury’s finding of not guilty of

felonious assault. We cannot find that the jury lost its way in finding S.C.’s testimony of

the events that occurred on the night in question more credible than appellant’s

statement to the police that she agreed to trade sex for crack cocaine.
Richland County, Case No.13CA98                                                       9


      {¶32}   The third assignment of error is overruled.

      {¶33}   The judgment of the Richland County Common Pleas court convicting him

of rape and kidnapping is affirmed. This case is remanded to that court for resentencing

consistent with this opinion. Costs are to be split evenly between the parties.

By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.
