[Cite as State v. Coleman, 2014-Ohio-5320.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 1-13-53

        v.

ERIC L. COLEMAN,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR2013-0124

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: December 1, 2014




APPEARANCES:

        Michael J. Short for Appellant

        Terri L. Kohlrieser for Appellee
Case No. 1-13-53



PRESTON, J.

       {¶1} Defendant-appellant, Eric L. Coleman (“Coleman”), appeals the

judgment entry of sentencing of the Allen County Court of Common Pleas. He

argues that the trial court erred by sentencing him to additional prison time based

on a violation of his post-release control in another case, that his convictions are

against the manifest weight of the evidence, and that the trial court erred by failing

to merge his convictions for kidnapping and rape for purposes of sentencing. For

the reasons that follow, we affirm in part and reverse in part.

       {¶2} On May 16, 2013, the Allen County Grand Jury indicted Coleman on

Count One of rape in violation of R.C. 2907.02(A)(2), a first-degree felony, and

on Count Two of kidnapping in violation of R.C. 2905.01(A)(4), a first-degree

felony.    (Doc. No. 3).         Both counts contained repeat-violent-offender

specifications under R.C. 2929.01(CC) and 2941.149.           (Id.).   The indictment

stemmed from a March 30, 2013 incident in which Coleman allegedly lured a

woman, H.C., into a truck he was driving, drove to the parking lot of an apartment

complex, and raped her inside the truck.

       {¶3} At the arraignment hearing on May 24, 2013, Coleman entered pleas

of not guilty. (May 24, 2013 Tr. at 6). Coleman waived his right to a jury trial,

and on August 26 and 27, 2013, the trial court held a bench trial on the indictment.

(Aug. 26, 2014 Tr. at 1); (Doc. Nos. 68, 86). The trial court found Coleman guilty

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of Counts One and Two and filed its “verdict of court & judgment entry” on

September 3, 2013. (Aug. 27, 2013 Tr. at 597-598); (Doc. No. 86).

         {¶4} The trial court held a sentencing hearing on October 9, 2013. (Oct. 9,

2013 Tr. at 1). The trial court heard argument concerning whether the offenses of

which the trial court found Coleman guilty—rape and kidnapping—merged under

R.C. 2941.25. (Id. at 34-42). The trial court concluded that the offenses did not

merge. (Id. at 42). The trial court also concluded that Coleman is a repeat violent

offender and that he was on post-release control (“PRC”) for another case at the

time he committed the offenses in this case—a violation of the terms of Coleman’s

PRC. (Id. at 81, 85, 87-88). The trial court sentenced Coleman to, among other

things, 11 years imprisonment on Count One, 7 years imprisonment on Count

Two, 10 years imprisonment on the repeat-violent-offender specification, and 806

days imprisonment on the PRC violation, to be served consecutively for an

aggregate prison term of 28 years and 806 days. (Id. at 87-90); (Doc. No. 89).

The trial court filed its judgment entry of sentence on October 15, 2013. (Doc.

No. 89).

         {¶5} On October 21, 2013, Coleman filed a notice of appeal. (Doc. No.

94). He raises three assignments of error for our review. We address Coleman’s

second assignment of error first, followed by his third and first assignments of

error.

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                           Assignment of Error No. II

       The conviction [sic] is against the manifest weight of the
       evidence.

       {¶6} In his second assignment of error, Coleman argues that his convictions

for rape and kidnapping are against the manifest weight of the evidence. Coleman

does not dispute that a “sexual incident” occurred between him and H.C.; rather,

he argues that the sex was “consensual.” (Appellant’s Brief at 3). He argues that

H.C. lacks credibility.    Specifically, he argues that H.C.’s testimony at a

preliminary hearing concerning what she was wearing at the time of the incident

contradicted her trial testimony. He also argues that a convenience-store worker’s

testimony contradicted H.C.’s account of the events. Coleman argues that the

scientific evidence was “not dispositive” and that the medical evidence was

“equivocal.” (Id. at 8). Finally, Coleman argues that the trial court excused a

“major discrepancy” in H.C.’s testimony but did not treat Coleman the same way

when he admitted to lying in his direct examination concerning where the incident

occurred. (Id.).

       {¶7} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘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]


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clearly 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).    A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

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

one of the syllabus. When applying the manifest-weight standard, “[o]nly in

exceptional cases, where the evidence ‘weighs heavily against the conviction,’

should an appellate court overturn the trial court’s judgment.” State v. Haller, 3d

Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio

St.3d 67, 2011-Ohio-6524, ¶ 119.

       {¶8} Coleman was convicted of rape in violation of R.C. 2907.02(A)(2) and

kidnapping in violation of R.C. 2905.01(A)(4). R.C. 2907.02 sets forth the crime

of rape and provides, in relevant part: “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.” R.C. 2907.02(A)(2). “A person acts purposely when it is

his specific intention to cause a certain result, or, when the gist of the offense is a

prohibition against conduct of a certain nature, regardless of what the offender

intends to accomplish thereby, it is his specific intention to engage in conduct of

that nature.” R.C. 2901.22(A). “Sexual conduct” means, among other things,

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“vaginal intercourse between a male and female,” “anal intercourse,” and,

“without privilege to do so, the insertion, however slight, of any part of the body *

* * into the vaginal or anal opening of another.” R.C. 2907.01(A). “‘Force’

means any violence, compulsion, or constraint physically exerted by any means

upon or against a person or thing.” R.C. 2901.01(A)(1).

       {¶9} R.C. 2905.01 sets forth the crime of kidnapping and provides, in

relevant part:

       (A) No 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, for any of the following purposes:

       ***

       (4) To engage in sexual activity, as defined in section 2907.01 of the

       Revised Code, with the victim against the victim’s will; * * *.

R.C. 2905.01(A)(4). R.C. 2907.01(C) defines “sexual activity” as, among other

things, “sexual conduct” as defined in R.C. 2907.01(A), the relevant portion of

which we excerpted above. “Force” is defined in R.C. 2901.01(A)(1), which we

also excerpted above. The Revised Code does not define “deception” for purposes

of R.C. Chapter 2905. State v. Hatten, 186 Ohio App. 3d 286, 2010-Ohio-499, ¶

39 (2d Dist.).     However, courts have applied the following definition of

“deception” found in R.C. 2913.01(A), the theft and fraud statute, to R.C. Chapter

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2905 because it “conforms to the generally accepted meaning of the word

‘deception’”:

      “Deception” means knowingly deceiving another or causing another

      to be deceived by any false or misleading representation, by

      withholding information, by preventing another from acquiring

      information, or by any other conduct, act, or omission that creates,

      confirms, or perpetuates a false impression in another, including a

      false impression as to law, value, state of mind, or other objective or

      subjective fact.

Id., quoting R.C. 2913.01(A).

      {¶10} At trial, the State presented the testimony of 12 witnesses; however,

based on Coleman’s arguments, we need only discuss the testimony of six of

them. The State called H.C. as a witness. (Aug. 26, 2013 Tr. at 45). She testified

that she met Coleman in March 2013 through Rachel Johnson (“Johnson”)—

H.C.’s friend and Coleman’s half-sister who, like H.C., resided at the “Lima

West” apartment complex—after H.C. saw a picture of Coleman. (Id. at 45-46,

58). H.C. “was kind of attracted to him and everything.” (Id. at 46-47). H.C. and

Coleman exchanged phone numbers and began sending text messages to each

other. (Id. at 47-48). According to H.C., she made known to Coleman that she

was interested in him, and Coleman sent H.C. a text message “saying something

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about he wanted to fuck,” but H.C. told him she “did not want to do that.” (Id. at

48-49). H.C. recited a series of text messages that Coleman and H.C. exchanged

on March 29, 2013, as reflected as follows in State’s Exhibit 25:

      Coleman:      What up

      Coleman:      U trin to fuck

      H.C.:         No

      H.C.:         Why you fighting with your girl

      H.C.:         Did I send you a pic?

      Coleman:      Nawh i aint whats up

      H.C.:         I ain’t on that just yet

      Coleman:      Well im coo

      Coleman:      So i guess u aint on it

      H.C.:         I ain’t trying to fuck I am trying to get to no you

      Coleman:      Well thats what u im on fa real

      H.C.:         Huh

      Coleman:      I said im on fuckin is it

      H.C.:         Oh I’m cool then

      Coleman:      Yep

(State’s Ex. 25); (Aug. 26, 2013 Tr. at 51-54). H.C. testified that she intended to

convey in her text messages to Coleman that she “did not want to have sex.”

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(Aug. 26, 2013 Tr. at 52-54). By her text message, “Oh I’m cool then,” H.C.

meant, “That I’m fine because I’m not…I wasn’t on having sex. I did not want to

have sex.” (Id. at 54).

       {¶11} H.C. then recited a series of text messages found in State’s Exhibit

25 that Coleman and H.C. exchanged about 24 hours later, beginning at 1:02 a.m.

on March 30, 2013:

       H.C.:         Are you busy

       Coleman:      No

       H.C.:         I’m bored as hell right now

       Coleman:      I aint got no data and i aint doin nothin at rays wit my

                     sis

       Coleman:      Drinkin … but u trin to see me tonight

       Coleman:      Yep

       H.C.:         I mean idk I don’t want to have sex I need a damn

                     drink myself shit

       H.C.:         Is that what you wanted?

       Coleman:      Im jus trin to chill

       H.C.:         Were at

       Coleman:      Where u at that where



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(State’s Ex. 25); (Aug. 26, 2013 Tr. at 54-57).           The text messages between

Coleman and H.C. ceased until approximately three hours later, at 4:50 a.m., when

H.C. resumed the text messaging after waking up:

       H.C.:             Sorry I fell a sleep

       H.C.:             But if you up lima west

       Coleman:          So whats up

       H.C.:             I was sleep sorry about that I have been so damn

                         drained lately idk were you at

       H.C.:             What are you doing

(Id.); (Id. at 57-58).

       {¶12} H.C. testified that after exchanging those text messages, she and

Coleman spoke on the phone. (Aug. 26, 2013 Tr. at 59). H.C. testified that she

missed two calls from Coleman, but Coleman called H.C. again and told her “that

he needed to speak with [her]” about Johnson. (Id.). According to H.C., Coleman

said it was “important” and that he was on his way and would be there in a minute.

(Id.). Coleman’s voice made H.C. worried, H.C. testified. (Id. at 60-61). H.C.

“assumed something was really wrong with [Johnson] * * * like she went to jail or

she got in a fight.” (Id. at 60). H.C. testified that she was in shorts and a tank top,

so she put on “a brazier,” “an overtop,” a pair of jeans, and “some boot like things

and a jacket.” (Id. at 60, 71-72).

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       {¶13} According to H.C., she went outside to “see what was going on with

[Johnson]” and saw Coleman in a white pickup truck. (Id. at 60). H.C. testified

that she “got into the truck like a dummy,” thinking she could trust Coleman and

expecting him to talk to her about Johnson. (Id. at 61). According to H.C., once

she got in the truck, she asked Coleman what was going on with Johnson, and

Coleman “just looked at [her],” “gave [her] a dead look,” and “took off.” (Id. at

62). H.C. testified that she was “yelling at him,” saying, “Dude, where are we

going? My kids are in the house. What are you doing? Take me back home.”

(Id. at 62-63). Coleman ignored H.C., she testified. (Id. at 63).

       {¶14} H.C. testified that Coleman turned onto several streets, and she was

“really spazzing out” and demanding that Coleman take her back home to her

children. (Id.). According to H.C., Coleman then struck her on the side of her

face and took her to “some apartment complex” where he “parked like diagonal

from the * * * apartment complex in the parking lot,” alongside some bushes. (Id.

at 63, 84-85); (State’s Ex. 34). H.C. testified that Coleman “just started like trying

to kiss on [her]” and “kept trying to yank [her] pants off [her],” but H.C. kept

saying, “No. What are you doing? Just take me home. I don’t want to do this. I

told you I don’t want to do this. Just take me home.” (Aug. 26, 2013 Tr. at 63).

But, according to H.C., Coleman “just kept doing it.” (Id.). H.C. testified that

once Coleman “pulled everything off,” he “put his face * * * on [her] vagina and

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[she] pushed him off” before he could perform oral sex on her. (Id. at 63, 66).

According to H.C., she said, “No. Don’t. Stop. Stop. Just take me home.” (Id.

at 64).

          {¶15} H.C. testified that Coleman hit her, pulled her legs up, and had

vaginal sex with her while she screamed, “Stop. Stop. Stop.” (Id.). According to

H.C., Coleman “kept hitting [her]” with a closed fist and said, “Shut the fuck up

bitch. Shut the fuck up bitch.” (Id. at 64, 67). H.C. testified that Coleman told

her to turn around, grabbed her hair, made her turn around, and “had sex with [her]

anally.” (Id. at 64). According to H.C., Coleman said “something about the

condom breaking.” (Id.). H.C. did not know Coleman put a condom on. (Id. at

67). H.C. testified that during the vaginal sex, she was screaming and yelling at

Coleman, “[t]ell[ing] him no,” but during the anal sex, she “just gave up” because

she was scared Coleman would pull a knife or gun on her. (Id.).

          {¶16} According to H.C., Coleman “said he was thirsty,” so H.C. said she

was thirsty, too, “because the only thing [she] could think of was [she knew] a lot

of people at Circle K and [she] didn’t want anybody to say [she] wasn’t with him

or anything because [she] wanted to go to the police.” (Id. at 64). H.C. also knew

that Circle K had cameras. (Id. at 69). H.C. testified that she pulled her “stuff

on,” and they went to Circle K, which was H.C.’s idea. (Id. at 64, 68). According

to H.C., she had her phone and “was going to sit out in the car,” but Coleman said,

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“No, you’re coming with me because you’re not calling the fucking police on me.”

(Id. at 64-65). So, H.C. testified, she went into Circle K with Coleman and “tried

playing everything off because [she] didn’t know what to do.”           (Id. at 65).

According to H.C., she paid for Coleman’s drinks at Circle K “because [she] was

scared and [she] was hoping and praying that he would take [her] home so [she]

kind of just tried to play it off to make it as if everything was going to be okay so

[she] could get home.” (Id. at 80). H.C. testified that there was “one lady” in

Circle K, but H.C. did not notice any other customers. (Id. at 69). H.C. testified

that she did not think to ask the lady to call the police because she “was so shook

up and scared about what just happened.” (Id.).

       {¶17} H.C. and Coleman got their drinks, went to the truck, and Coleman

took H.C. back to Lima West. (Id. at 65). According to H.C., when Coleman

dropped her off, “he told [her] that if [she went] to the police or the hospital he

was going to fucking hurt [her] and [her] kids.” (Id.). H.C. testified that she got

out of the truck, went straight into the apartment, and told her mother what

happened. (Id.). Her mother told H.C. she needed to go to the hospital, but H.C.

did not want to, she testified, because she was afraid of what Coleman said. (Id.).

According to H.C., she “got the courage,” went to the restroom, got a sanitary

napkin when she noticed vaginal bleeding, and changed out of her jeans and boots

into sweatpants and sandals, and she and her mother went to St. Rita’s Medical

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Center (“St. Rita’s”). (Id. at 65, 70-72, 80). H.C. had not taken a shower. (Id. at

70). H.C. recalled testifying at a preliminary hearing in the municipal court that

she was wearing a tank top with a grey sweater, sweatpants, and sandals at the

time of the rape; however, she was in fact wearing jeans and boots at the time of

the rape, and she misunderstood the question at the preliminary hearing. (Id. at

70-72).

       {¶18} On her way to the hospital, H.C. stopped at Circle K and asked

employees there to make for law enforcement a copy of the video of her and

Coleman’s time there. (Id. at 75-76). Circle K made a copy of the video. (Id. at

76). At the hospital, hospital staff performed a rape kit on H.C. and took x-rays of

her face. (Id. at 72). According to H.C., the police arrived and photographs of

H.C.’s face were taken, which depicted scratches, bruising, and swelling caused by

Coleman. (Id. at 72, 80-84); (State’s Exs. 1, 2, 3, 4, 5). H.C. told police at the

hospital about the Circle K surveillance video. (Aug. 26, 2013 Tr. at 75). While

she was at the hospital, at 10:42 and 10:43 a.m., H.C. received two text messages

from Coleman:

       Coleman:      Fa real smh u sayin i raped u and u gave it up willinly

                     u dirty I will never so dont play me if I raped u how i

                     have time to put a condom on



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       Coleman:      I still got it in my pocket and txt messages of u tellin

                     me to come to lima west

(State’s Ex. 26); (Aug. 26, 2013 Tr. at 73-74). According to H.C., “smh” stands

for “shaking my head” in text language. (Aug. 26, 2013 Tr. at 74). H.C. did not

respond to Coleman’s text messages. (Id.).

       {¶19} On cross-examination, H.C. could not recall telling hospital staff that

she might have scratched herself on the right side of her face. (Id. at 88). H.C.

admitted that she did not inform the hospital staff that she was wearing different

pants before and after she was raped than the pants she wore to the hospital, but

she said she “was just so shook up” that she did not realize she left out that detail,

and she “thought the main thing would be like the underwear.” (Id. at 89-91).

After viewing still-photographs of the Circle K surveillance video, H.C. agreed

that she and Coleman walked into Circle K at 6:15 a.m. and that there were at least

five people in Circle K during the few minutes that she and Coleman were there,

but she did not say anything to any of them, including the female clerk, who H.C.

has known “for quite a while.” (Id. at 92-100); (Defendant’s Exs. D, E, F, G, H, I,

J). H.C. did not recall another Circle K customer being ahead of her and Coleman

in line to pay. (Aug. 26, 2013 Tr. at 97). H.C. could not recall telling Johnson

that she would probably have sex with Coleman, except H.C. was on her period.

(Id. at 101). H.C. agreed that she told Coleman “he was nice looking” and that she

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“made it real clear” that she was extremely interested in Coleman. (Id. at 102-

103).

        {¶20} The State called H.C.’s mother, Victoria, to testify. (Id. at 33). She

testified that in the early morning of March 30, 2013, H.C. woke her up crying.

(Id. at 36-37). According to Victoria, H.C. told her that she had just been raped

and beaten. (Id. at 37). Victoria testified that H.C. told her that H.C.’s friend’s

brother called H.C. to say something was wrong with his sister and that he needed

to talk to H.C. (Id.). According to Victoria, H.C. said she went out to talk to her

friend’s brother, and “he ended up leaving with her and she didn’t want to leave.”

(Id.). H.C. “kept telling him that she wanted to come back,” and “he wouldn’t

bring her back.”    (Id.). Victoria testified that H.C. said her friend’s brother

“wasn’t trying to talk to her,” “just all of a sudden acted crazy,” “started hitting

her,” “started raping her” when “she got to a certain place,” and “started just

taking over on her.” (Id. at 37-38). According to Victoria, H.C. said that when

her friend’s brother dropped H.C. off, “he threatened her kids, to kill them and to

kill her.”   (Id. at 38).   Victoria convinced H.C. to go to the hospital and

accompanied her there. (Id. at 38-39). Victoria testified that H.C.’s face “was like

messed up” and “all cut up and bruised,” as reflected in a photograph labeled

State’s Exhibit 1. (Id. at 37, 39-41).



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       {¶21} On cross-examination, Victoria testified that she did not tell H.C. to

take a shower or change clothes before leaving for the hospital. (Id. at 42-43).

       {¶22} The State called Andrea Burkholder (“Burkholder”), a registered

nurse in the emergency room at St. Rita’s, to testify. (Id. at 124, 127). Burkholder

testified that she served as H.C.’s primary nurse when H.C. came to St. Rita’s on

the morning of March 30, 2013. (Id. at 128-129). H.C. had visible injuries when

she arrived at St. Rita’s. (Id. at 130). Burkholder performed a rape kit on H.C.

(Id. at 132). H.C. informed Burkholder that she had been penetrated with a penis

vaginally and anally. (Id. at 138). According to Burkholder, H.C. indicated that

she was not menstruating. (Id. at 138, 140). Burkholder testified that as part of a

rape kit, the layer of clothing closest to the victim’s skin, such as underwear, is

collected for the kit; however, Burkholder also gave the other clothing H.C. was

wearing to Patrolman Jason Rhodes (“Rhodes”) of the Lima Police Department.

(Id. at 139-140).

       {¶23} During her testimony, Burkholder described several injuries to

H.C.’s face that Burkholder documented in the rape kit.           (Id. at 141-142).

Burkholder testified that she noted no trauma to the outside of H.C.’s vaginal area,

but H.C. did have petechiae—which Burkholder described as “little red dots * * *

similar to bruising”—at two locations inside her cervix.          (Id. at 142-145).

Burkholder noted bleeding from H.C.’s cervix, but she did not notice any tears.

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(Id. at 145-146). Burkholder turned over to Rhodes the rape kit she performed on

H.C.     (Id. at 150).      Burkholder testified that while H.C. was at St. Rita’s,

Burkholder learned that H.C.’s alleged rapist was sending text messages to H.C.,

so Burkholder instructed H.C. not to respond and informed police. (Id. at 152).

        {¶24} On cross-examination, Burkholder testified that one would not get a

petechia “just from gentle sex.” (Id. at 156). Rather, according to Burkholder, “it

would have to be * * * rough sex or a traumatic sexual experience to get” a

petechia. (Id.). Burkholder did not recall H.C. telling her that H.C. might have

scratched herself on the right side of her cheek, but if H.C. did tell her that,

Burkholder would have noted it in her rape-assessment report. (Id. at 160).

        {¶25} On re-direct examination, Burkholder testified that a doctor’s notes

indicated that H.C. might have scratched herself while trying to protect herself.

(Id. at 162).

        {¶26} The State’s next witness was Kara McKee (“McKee”), who was in a

relationship with Coleman on March 30, 2013.1 (Id. at 168-169). McKee testified

that she allowed Coleman to use her truck shortly after 5:30 a.m. that day so that

Coleman could go get breakfast for McKee’s son and nephew. (Id. at 175-178).

According to McKee, Coleman “was gone for 2 hours,” and she “knew something

wasn’t right” and became upset. (Id. at 176-177). McKee testified that she tried
1
  The record reflects that Coleman was in a relationship with multiple women as of March 30, 2013;
however, it was Whitney Blanchard who Coleman considered his “girlfriend.” (Aug. 27, 2013 Tr. at 484).

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contacting Coleman “at least over 50 times,” paid someone to drive her around to

look for the truck, and called the police department and hospital. (Id.). According

to McKee, when Coleman finally returned, he said, “I went to McDonald’s like

you said,” and, “I was only gone 15 minutes.” (Id. at 178).

       {¶27} The State called Detective Steven Stechschulte (“Stechschulte”) of

the Lima Police Department. (Aug. 27, 2013 Tr. at 373). He testified that because

H.C. did not know the precise location where Coleman took her, Stechschulte took

H.C. to two apartment complexes that he believed might be where the incident

occurred. (Id. at 374-377). According to Stechschulte, when he and H.C. arrived

at the parking lot for the Terrace Court apartments, H.C. “immediately” identified

it as where Coleman took her and became “visibly upset” and “did not want to get

out of the car.” (Id. at 377-378). The Terrace Court apartments are approximately

six or seven blocks from the last turn she remembered Coleman making in the

truck. (Id. at 377). Stechschulte testified that during his investigation, he learned

that Coleman “was staying off and on during that time” in Apartment 15 at the

Terrace Court apartments, which is where Coleman’s girlfriend, Whitney

Blanchard (“Blanchard”), was residing. (Id. at 380, 384).

       {¶28} During her direct examination of Stechschulte, counsel for the State

played for the trial court State’s Exhibit 41, which Stechschulte identified as a

video of his April 4, 2013 interview of Coleman.         (Id. at 391-394).    In the

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interview, Coleman told Stechschulte that he and H.C. had sex at his “friend

Raymond’s” house. (State’s Ex. 41). Coleman said in the interview that he just

met Raymond and did not know his last name, but Raymond gave Coleman a key

to his house because he was out of town. (Id.). Coleman told Stechschulte that

Raymond’s house was on West Street, but he did not know the address. (Id.).

After several questions by Stechschulte, Coleman told Stechschulte that

Raymond’s house was on West Street close to “the tracks.” (Id.). Coleman said in

the interview that he recently met Raymond “through a mutual friend,” but he

could not tell Stechschulte who the mutual friend was “because it’s a bad friend.”

(Id.). Coleman told Stechschulte in the interview that he and H.C. had “some

porn-star sex type stuff.” (Id.).

        {¶29} Stechschulte testified that he found a man named “Raymond” in his

investigation, but he lived in one of the buildings at the Terrace Court apartments,

which was not where Coleman told Stechschulte “Raymond’s” house was. (Id.);

(Aug. 27, 2013 Tr. at 402). According to Stechschulte, the Raymond residing at

the Terrace Court apartments informed Stechschulte that he did not really know

Coleman and would never give anyone a key to his house. (Aug. 27, 2013 Tr. at

402).

        {¶30} Stechschulte also testified that Coleman gave him three cell phones,

which were analyzed by Sergeant Terry Sneary (“Sneary”) of the Allen County

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Sheriff’s Office.    (Id. at 398-399).   Finally, Stechschulte testified that in his

experience, it was not out of the ordinary for H.C. to not inform someone in Circle

K that she had been raped. (Id. at 425-426). Stechschulte observed that it is not

uncommon for a rape victim, particularly one who has been threatened, to try to

cause the least amount of friction possible and simply try to make it out of the

situation safely. (Id. at 426).

       {¶31} The State called Sneary to testify. (Id. at 317). Sneary testified that

he analyzed three cell phones. (Id. at 322). According to Sneary, his analysis

revealed that one of the phones placed three outgoing calls on March 30, 2013 to a

phone number labeled in the cell phone as “Baby Sis (Other Phone)”: one call at

5:21 a.m. lasting 36 seconds; another call at 5:28 a.m. lasting 31 seconds; and

another call at 5:31 a.m. lasting one minute, 35 seconds. (Id. at 340-343); (State’s

Exs. 32, 33). In her testimony, H.C. testified to the phone number she gave

Coleman, which was the same number labeled as “Baby Sis (Other Phone)” in

Coleman’s cell phone. (Aug. 26, 2013 Tr. at 47-48).

       {¶32} In his case, Coleman called three witnesses, the first of whom was

Nicole Raymond (“Nicole”). (Id. at 451). Nicole testified that she was at work at

Circle K between 6:00 and 6:30 a.m. on March 30, 2013 when she noticed H.C., a

regular customer every day or every other day, come into Circle K. (Id. at 452-

453). According to Nicole, when H.C. came into Circle K with Coleman, H.C.

                                         -21-
Case No. 1-13-53



“appeared normal,” “just like any other day.” (Id. at 454). Nicole testified, “It

wasn’t anything out of the ordinary to me.” (Id.). However, Nicole did notice that

H.C. “wasn’t really as talkative as she normally was.” (Id.). Nicole was able to

see H.C.’s face clearly in good lighting and did not see any bruises or marks on

H.C. (Id.).

       {¶33} On cross-examination, when counsel for the State asked Nicole if she

was “paying particular attention to everything about [H.C.] and the defendant,”

Nicole responded, “Not really. * * * I wasn’t staring at details or anything like that

or, you know, I couldn’t tell you what she wearing [sic] or anything like that. I

just knew she was there and I didn’t see * * * anything obvious that jumped out at

me.” (Id. at 462).

       {¶34} Johnson was Coleman’s second witness. (Id. at 464). She testified

that a day or two after she met Coleman in late March 2013, H.C. and Coleman

were at Johnson’s apartment “just talking” along with several others. (Id. at 466-

469). According to Johnson, H.C. left her apartment after being there for two or

three hours. (Id. at 469-470).

       {¶35} Finally, Coleman testified. (Id. at 478). He testified that he met

Johnson for the first time on March 26, 2013.          (Id. at 480).   According to

Coleman, in response to Johnson posting photographs of him on Facebook, H.C.

asked Johnson about Coleman. (Id. at 482). Eventually, Coleman sent a text

                                        -22-
Case No. 1-13-53



message to H.C. using Johnson’s phone, saying, “I likely have a girlfriend. I do

but I don’t have a girlfriend, you know, but we could be friends. We could talk.”

(Id. at 482-483). Coleman’s on-again, off-again girlfriend was Blanchard, with

whom he was not living but would spend the night occasionally. (Id. at 483-485).

Coleman testified that H.C. “asked [him] to add her to [Coleman’s] Facebook

page.” (Id. at 483). According to Coleman, he and H.C. exchanged cell phone

numbers and communicated by text messages. (Id. at 485). Coleman testified that

he “was being a player” and disguised H.C. in his phone as “Baby Sis Other

Phone” so Blanchard would not discover H.C.’s contact in his phone. (Id.).

      {¶36} According to Coleman, he asked H.C. in text messages whether she

was trying to have sex with him. (Id. at 498). Coleman understood H.C.’s

responses to mean that she did not want to have sex with him, so Coleman “left

her alone” and “didn’t expect to hear from [her] again.”        (Id. at 498-499).

Coleman testified that approximately 24 hours after those text messages, he

received a text message from H.C., prompting him to wonder why H.C. was

texting him after he indicated to her that he wanted to have sex with her. (Id. at

499). According to Coleman, H.C. again indicated that she did not want to have

sex with him, and Coleman responded, saying that he did not want to have sex

either and was “just trying to chill.” (Id. at 500). Coleman testified that he and

H.C. exchanged those text messages at approximately 2:00 in the morning, and he

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did not receive another text message from H.C. again until approximately 5:00 that

morning. (Id.). According to Coleman, H.C. indicated that she fell asleep and that

she was at Lima West if Coleman was up. (Id.). Coleman testified that “at that

point * * * [he] call[ed] [H.C.] like, ‘I’m on my way.’ And she said, ‘Yeah.’ She

said, ‘Okay.’” (Id. at 501).

       {¶37} Coleman testified that he “had been drinking, but * * * wasn’t drunk

to the point where [he] couldn’t drive,” so he took McKee’s white pickup truck,

drove to Lima West, and pulled into the “first driveway” there. (Id. at 501-502).

According to Coleman, he called H.C. while he was in the first driveway, and H.C.

told him that he needed to go to the second driveway. (Id. at 502). So, Coleman

testified, he asked H.C. to stay on the phone, which he put on his lap, while he

turned the truck around and into the second driveway.       (Id.).   According to

Coleman, when he pulled up, H.C. came out and got into the truck.            (Id.).

Coleman denied that he lured H.C. into the truck by telling her he needed to speak

with her about Johnson. (Id. at 502-503).

       {¶38} Coleman testified that once H.C. got into the truck, she asked where

they were going, and he responded, “We going to this little spot.” (Id. at 504).

According to Coleman, H.C. said Coleman must be fighting with his girlfriend, to

which Coleman responded, “Nah. My girl’s at work.” (Id.). Coleman testified

that H.C. again asked where they were going, and he responded, “We going to

                                      -24-
Case No. 1-13-53



my…my dude [sic] house.” (Id.). According to Coleman, H.C. said that they

better not be going to Coleman’s girlfriend’s house because that would be

disrespectful. (Id. at 504-505). Coleman testified that the conversation stopped at

that point. (Id. at 505). According to Coleman, he did not strike or punch H.C.

while he was driving, nor did H.C. mention her children or request that Coleman

take her home. (Id. at 504-505).

       {¶39} Coleman testified, “When we get to the apartments all we did was *

* * kiss in the truck.” (Id. at 505). Then, according to Coleman, he and H.C. got

out of the truck, “walk to [his] dude [sic] house,” go into the house, sit on the

couch, and “get to kissing.” (Id.). Coleman testified that H.C. got up off the

couch and took her pants off, and Coleman retrieved a condom out of his shoe and

put it on. (Id.). According to Coleman, he and H.C. then had “basic consensual

sex,” and Coleman did not “force her or beat her up or pull her hair or sock her in

the face.” (Id. at 506).

       {¶40} Coleman’s counsel asked him where it was that he took H.C., and

Coleman declined to disclose that information:

            At the time I…At the time, and I’m still not at the liberty to

       even answer that question because she said that we had sex in the

       truck. And we didn’t have sex in the truck like I told Detective

       Stechschulte. And we didn’t have sex in the truck so I’m not at

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        liberty to give up anything * * * because I knew she was…Because I

        knew she was lying about we had sex…We had sexual intercourse in

        the truck. So I…I’m not at liberty to give up no apartment, no

        nothing, because it proves that she was wrong. It proves that she

        was lying.

             When she…If she had of came out and said we had sex in the

        apartment I would of said that. I would have…I would have agreed

        with her. But she said we had sex in the truck. I’m not at liberty to

        give up no apartment.

(Id. at 507). The trial court instructed Coleman to answer the question of where

the sexual incident occurred, and Coleman responded, “In the apartment.” (Id. at

508).    When his counsel asked, Coleman did not recall the address of the

apartment, nor could he provide a location of the apartment. (Id.).

        {¶41} Coleman testified that he did not mention to H.C. that he was thirsty

or request that they go to Circle K. (Id. at 509). According to Coleman, he and

H.C. went to Circle K, and he got two Red Bulls out of the cooler and walked over

to the drink machine where H.C. was getting a pop. (Id.). Coleman testified that

he and H.C. walked to the cash register and had “a little argument” over who was

going to pay for the drinks, and H.C. ultimately paid for them. (Id.). According to

Coleman, they left Circle K in the truck, and he dropped H.C. off at home at

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“about 6:22 in the morning” and “didn’t say anything to her.” (Id. at 510-511).

That was the last time Coleman saw H.C. (Id. at 511). According to Coleman, on

March 30, 2013, he “knew [he] was going to be arrested” because he knew H.C.

“reported a rape” and because “if they type [his] name in the computer what will

pop up about [him].” (Id. at 512-513).

       {¶42} On cross-examination, Coleman testified that he met Johnson for the

first time on March 26, 2013—a Tuesday—and that he was mistaken when he told

Stechschulte that he met Johnson on a Wednesday. (Id. at 516-517). Coleman

met H.C. for the first time on Thursday, March 28, 2013. (Id. at 517). Coleman

admitted that Blanchard was living at the Terrace Court apartments in late March

2013. (Id. at 519-520). Coleman testified that he deleted text messages between

him and H.C., but he wished he would have saved them. (Id. at 525). Coleman

admitted to having vaginal intercourse with H.C., and he testified that during

vaginal intercourse, his penis “slipped” out, and he accidentally inserted his penis

into H.C.’s anus, but he “didn’t keep going.” (Id. at 527).

       {¶43} Counsel for the State then asked Coleman about “Raymond,” at

whose house Coleman told Stechschulte he and H.C. had sex. (Id.). Coleman

testified that at the time of his videoed, April 4, 2013 interview with Stechschulte,

Coleman “was kind of hung over.”           (Id. at 528).      According to Coleman,

Raymond’s house “was an apartment,” but he could not recall several details about

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the apartment—such as whether it was on West Street, brick or siding, one story or

two—even though he had been to the apartment “multiple times.” (Id. at 528-

534). When counsel for the State asked Coleman for the name of the mutual

friend through whom he met Raymond, Coleman responded, “I ain’t at liberty. I

can’t give that up.” (Id. at 534). According to Coleman, he would “be considered

as a snitch” if he revealed the mutual friend’s name, and he refused to give even a

first name.   (Id. at 535).     When counsel for the State asked Coleman for

Raymond’s last name, he responded, “I’m not at liberty to tell you that.” (Id. at

536). When the trial court instructed Coleman to answer and asked him for

Raymond’s full name, Coleman responded, “I don’t know.” (Id. at 537).

       {¶44} On re-direct examination, Coleman revealed that he and H.C. had sex

in Blanchard’s apartment, not at “Raymond’s” house:         “We had sex in my

girlfriend [sic] house. * * * I was afraid to tell. To even tell her. We had sex in

her house.” (Id. at 539-540).

       {¶45} On re-cross examination, Coleman admitted that he lied concerning

where he and H.C. had sex because he did not want Blanchard to know that they

had sex at her apartment. (Id. at 541).

       {¶46} Based on the evidence above, we cannot conclude that Coleman’s

rape and kidnapping convictions were against the manifest weight of the evidence.

Coleman admitted that he and H.C. had sex, which made H.C. and Coleman

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important witnesses in this case. According to H.C.’s version of the events,

Coleman used deception to lure H.C. into the truck. Coleman falsely represented

to H.C. that he needed to talk to her about Johnson, giving H.C. the false

impression that something was wrong with her friend. Once H.C. was in the truck,

Coleman “took off,” removing her from the place where she was found. Despite

H.C.’s protests and requests that Coleman take her back to Lima West, Coleman

restrained H.C. in the truck as they traveled down several streets, striking H.C. on

the side of the face at one point.

       {¶47} Once parked in the parking area for the Terrace Court apartments,

Coleman began kissing H.C. and, again despite her telling him to stop and to take

her home, purposely forced her by violence and constraint to submit against her

will to have vaginal and anal intercourse with him, hitting her with a closed fist

and grabbing her hair inside the truck. Photographic evidence revealed scratches

and bruising on H.C.’s face, which H.C.’s mother, Victoria, and the emergency-

room nurse, Burkholder, observed as well. Nicole, the Circle K employee who

was familiar with H.C., noted that H.C. was less talkative than usual when she and

Coleman were in the store. Finally, H.C. explained the inconsistency between her

preliminary-hearing testimony and her trial testimony, indicating that she

misunderstood the question at the preliminary hearing.



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       {¶48} The evidence weighing against Coleman’s convictions was far less

weighty.      First and foremost, Coleman’s credibility was far below H.C.’s.

Coleman admitted during re-direct examination that he lied to Stechschulte and in

his earlier trial testimony. Specifically, he admitted that he and H.C. had sex in

Blanchard’s apartment, not at “Raymond’s.” While on the stand, Coleman often

could not recall important details, and his story appeared to constantly evolve. For

example, he told Stechschulte in his interview that he and H.C. had “some porn-

star sex type stuff,” but on the stand, Coleman testified that he and H.C. had “basic

consensual sex.” Finally, Coleman admitted to deleting text messages between

H.C. and him. The trial court cited this evidence and these inconsistencies in

concluding that “the believability of [H.C.] far, far outweigh[ed] that of the

defendant.” (Aug. 27, 2013 Tr. at 596). After reviewing the record, we agree with

the trial court’s credibility analysis and afford no weight to Coleman’s version of

the events.

       {¶49} We also disagree with Coleman’s argument that Nicole’s testimony

contradicted H.C.’s account of the events. While Nicole testified that she did not

notice any marks or bruising on H.C.’s face and that H.C. “appeared normal,” she

also admitted on cross-examination that she was not paying particular attention to

H.C. and Coleman. Moreover, considering what had just happened to H.C. and

that Coleman warned her not to call the police, it was unsurprising that H.C. did

                                        -30-
Case No. 1-13-53



not notify anyone in Circle K or that H.C. paid for their drinks. She explained that

she was just trying to make it home safely to her children. Finally, because

Coleman admitted to having sex with H.C., we agree with Coleman that the

scientific evidence alone is “not dispositive” and that the medical evidence is

“equivocal” concerning whether Coleman raped H.C.             Rather, H.C.’s and

Coleman’s versions of the events are important, and Coleman’s ever-evolving

version is without weight compared to H.C.’s version and the evidence supporting

it.

       {¶50} For all of these reasons, the evidence does not weigh heavily against

Coleman’s rape and kidnapping convictions. We, therefore, cannot conclude that

the trial court clearly lost its way and created such a manifest miscarriage of

justice that the rape and kidnapping convictions must be reversed and a new trial

ordered.

       {¶51} Coleman’s second assignment of error is overruled.

                          Assignment of Error No. III

       The trial court erred in not merging the rape and kidnapping
       convictions for sentencing purposes.

       {¶52} In his third assignment of error, Coleman argues that the kidnapping

and rape offenses of which he was convicted were allied offenses of similar import

and that the trial court erred by not merging them for purposes of sentencing.


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Specifically, Coleman argues that while the trial court found that H.C.’s

confinement in the truck subjected her to a substantial increase in risk of harm, the

evidence demonstrated that H.C. “willingly entered the truck” and “re-entered the

vehicle after she purchased beverages * * * at the Circle K.” (Appellant’s Brief at

11).   Coleman also disputes the trial court’s conclusion that Coleman’s

confinement of H.C. was secretive, in part because Coleman took the truck in a

secretive way. Coleman argues that “there was a continuous course of conduct.”

(Id.). We disagree.

       {¶53} “Whether offenses are allied offenses of similar import is a question

of law that this court reviews de novo.” State v. Johnson, 3d Dist. Allen No. 1-13-

45, 2014-Ohio-4750, ¶ 97, citing State v. Stall, 3d Dist. Crawford No. 3-10-12,

2011-Ohio-5733, ¶ 15.

       {¶54} R.C. 2941.25, Ohio’s multiple-count statute, states:

       (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

                                        -32-
Case No. 1-13-53



       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.

In determining whether offenses are allied offenses of similar import under R.C.

2941.25, the court must first determine whether it is possible to commit both

offenses with the same conduct. State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, ¶ 48. “If the multiple offenses can be committed with 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, ¶ 50

(Lanzinger, J., dissenting).

       {¶55} If it is possible to commit the offenses with the same conduct and the

defendant did, in fact, commit the multiple offenses with the same conduct, then

the offenses are allied offenses of similar import and will merge. Id. at ¶ 50.

However, “if the court determines that the commission of one offense will never

result in the commission of the other, or if the offenses are committed separately,

or if the defendant has separate animus for each, then according to R.C.

2941.25(B), the offenses will not merge.” (Emphasis sic.) Id. at ¶ 51. “‘The

defendant bears the burden to prove entitlement to merger.’” State v. Love, 3d



                                        -33-
Case No. 1-13-53



Dist. Marion No. 9-13-09, 2014-Ohio-437, ¶ 25, quoting State v. Forney, 2d Dist.

Champaign No. 2012-CA-36, 2013-Ohio-3458, ¶ 10.

      {¶56} Here, Coleman was convicted of rape and kidnapping. The State

concedes, and we agree, that it is possible to commit rape and kidnapping with the

same conduct. (Appellee’s Brief at 21). State v. Anderson, 9th Dist. Summit No.

26640, 2014-Ohio-1206, ¶ 8; State v. Rivera, 10th Dist. Franklin No. 10AP-945,

2012-Ohio-1915, ¶ 60. Therefore, we will proceed to the second step of the

analysis set forth by the Supreme Court of Ohio in Johnson and determine whether

the offenses were committed by the same conduct. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, at ¶ 48.

      {¶57} In State v. Logan, the Supreme Court of Ohio provided guidance

concerning when kidnapping and another offense are committed with a separate

animus:

      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

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Case No. 1-13-53



       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.

60 Ohio St.2d 126, syllabus. See also Stall, 2011-Ohio-5733, at ¶ 20-21. The

Court in Logan added, “Secret confinement, such as in an abandoned building or

nontrafficked area, without the showing of any substantial asportation, may, in a

given instance, also signify a separate animus and support a conviction for

kidnapping apart from the commission of an underlying offense.” Logan at 135.

       {¶58} We conclude that Coleman’s kidnapping and rape convictions do not

merge because Coleman’s conduct of luring H.C. into the truck by deception and

transporting her to the parking area of the Terrace Court apartments was not the

same conduct that constituted the rape. In other words, Coleman did not kidnap

and rape H.C. in a single act with a single state of mind. Rather, they were

separate acts with separate states of mind.



                                        -35-
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      {¶59} First, Coleman’s restraint of H.C. was prolonged so as to

demonstrate a significance independent of the rape offense.         The evidence

demonstrated that Coleman lured H.C. into the truck at approximately 5:31 a.m.,

that Coleman drove her down several streets before arriving at the parking area for

the Terrace West apartments, that Coleman and H.C. arrived at Circle K at 6:15

a.m., and that Coleman dropped H.C. off at Lima West approximately seven

minutes after they arrived at Circle K. In other words, Coleman restrained H.C. in

the truck for nearly 45 minutes even before they arrived at Circle K, and much of

that time in the truck was spent traveling. This amounts to “prolonged” restraint.

See State v. Vargas, 10th Dist. Franklin No. 12AP-692, 2014-Ohio-843, ¶ 29-30

(concluding that the restraint of the victim was “prolonged, long-term restraint”

where the victim “was confined and restrained for 30 to 40 minutes while the

defendants drove her around the city”); State v. Greathouse, 2d Dist. Montgomery

No. 21536, 2007-Ohio-2136, ¶ 46 (concluding that the defendant’s detention of

the victim was prolonged where the defendant drove the victim “around for quite

some time in the car before [the defendant] drove to the location where the rape

occurred”).

      {¶60} Second, Coleman’s confinement of H.C. was secretive so as to

demonstrate a significance independent of the rape offense.          The secrecy

surrounding Coleman’s confinement of H.C. began when he took McKee’s truck

                                       -36-
Case No. 1-13-53



for two hours despite her request that Coleman take the truck to purchase food at

McDonald’s. Coleman lured H.C. into the truck in the early morning hours on a

Saturday. Once she was inside the truck, he “took off,” confining her while he

drove to the parking lot of an apartment complex, where he parked alongside

bushes. This constitutes secretive confinement. See State v. Smith, 10th Dist.

Franklin No. 94APA09-1300, 1995 WL 170316, *5 (Apr. 6, 1995) (“[The victim]

was confined in secret as evidenced by the fact that the defendant drove her to a

dark alley or street in order to have intercourse with her.”).

       {¶61} Third, Coleman’s movement of H.C. was substantial so as to

demonstrate a significance independent of the rape offense. The precise distance

between Lima West, where Coleman lured H.C. into the truck, and the Terrace

Court apartments, where Coleman raped H.C., is not clear from the evidence

introduced at trial. However, based on Stechschulte’s trial testimony, Lima West

and the Terrace Court apartments are at least more than six or seven blocks from

one another. And Stechschulte stated at the sentencing hearing that he followed

the route H.C. said Coleman took, and it was 2.1 miles from Lima West to the

Terrace Court apartments. (Oct. 9, 2013 Tr. at 27-28). These facts demonstrate

Coleman’s substantial movement of H.C. See Smith at *5 (“The restraint was

prolonged and the movement substantial in that the victim was driven around

before, during, and after the assaults.”).

                                         -37-
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       {¶62} Finally, Coleman’s asportation and restraint of H.C. subjected H.C.

to a substantial increase in risk of harm separate and apart from that involved in

the rape. First, “the hazard of traveling in an auto for a prolonged period of time

increased the potential risk of harm.” Greathouse, 2007-Ohio-2136, at ¶ 46. See

also Vargas, 2014-Ohio-843, at ¶ 33, citing Greathouse at ¶ 46 and State v. Henry,

37 Ohio App. 3d 3, 9 (6th Dist.1987). Second, while Coleman was transporting

H.C. to the location of the rape, he struck H.C. on the side of her face. See State v.

Worth, 10th Dist. Franklin No. 10AP-1125, 2012-Ohio-666, ¶ 81 (concluding that

the defendant’s restraint of the victim subjected her to a substantial increase in risk

of harm separate and apart from the rapes where, “[p]rior to engaging in any

sexual conduct with [the victim], appellant knocked her to the floor, held her

down, and repeatedly struck her in the face”).         These facts demonstrate that

Coleman’s movement and restraint of H.C. subjected her to a substantial increase

in risk of harm separate and apart from the rape.

       {¶63} For the reasons above, we hold that Coleman committed the

kidnapping and rape offenses with separate conduct and with separate animus for

each offense. Therefore, Coleman’s kidnapping and rape offenses are not allied

offenses of similar import, and the trial court did not err by not merging

Coleman’s kidnapping and rape convictions for purposes of sentencing.

       {¶64} Coleman’s third assignment of error is overruled.

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                             Assignment of Error No. I

       The trial court erred in imposing post release control time.

       {¶65} In his first assignment of error, Coleman argues that the trial court

improperly sentenced Coleman “to an additional 806 days for violation of [PRC]

from a case (Allen County Case No. CR 2005 0365), in which [Coleman] was

sentenced to 4 years in prison for felonious assault and 3 years for a gun

specification.”   (Appellant’s Brief at 6).    Coleman argues that the court that

sentenced him in 2006 did not correctly notify him concerning PRC. Specifically,

Coleman argues that that court’s sentencing entry indicated that Coleman may be

subjected to up to three years of PRC; however, three years of PRC was

mandatory because Coleman was convicted of felonious assault, a second-degree

felony. He argues that: (1) because he has completed his prison sentence, the

sentencing error cannot be corrected; and (2) because he “was not properly placed

on [PRC],” the trial court erred by sentencing him to 806 days in prison based on a

PRC violation. (Id. at 7).

       {¶66} The State argues, on the other hand:

       [T]he failure of the [sentencing] court to include in its journal entry

       that PRC was mandatory for three years pursuant to [R.C.

       2929.19(B)(2)(c)] did “not negate, limit, or otherwise affect the

       mandatory period of supervision that [was] required” for the

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         defendant under R.C. 2967.28 despite the fact that he had completed

         his prison term without his judgment entry of sentencing being

         corrected to reflect that PRC of three years was mandatory.

(Appellee’s Brief at 10). The State also suggests that notwithstanding the error in

the sentencing entry in case number CR2005 0365, during Coleman’s sentencing

hearing in that case, the trial court correctly advised him that “upon his release he

will be subject to post release control of three years.”2 (Id. at 8).

         {¶67} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; that the sentencing statutes’ procedure was not

followed or there was not a sufficient basis for the imposition of a prison term; or

that the sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-

24, 2007-Ohio-767, ¶ 23 (stating that “the clear and convincing evidence standard

of review set forth under R.C. 2953.08(G)(2) remains viable with respect to those

cases appealed under the applicable provisions of R.C. 2953.08(A), (B), and (C) *

* *”); State v. Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶

4; State v. Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19,

citing R.C. 2953.08(G).


2
 The transcript of the sentencing hearing in case number CR2005 0365 is not part of the record in this case.
Nevertheless, having the transcript before us would not affect our disposition of Coleman’s first assignment
of error. See State v. Pyne, 8th Dist. Cuyahoga No. 100580, 2014-Ohio-3037, ¶ 8, 15, fn. 1.

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        {¶68} We conclude that the portion of Coleman’s sentence that the trial

court imposed based on Coleman’s violation of his PRC—806 days imprisonment

to be served consecutively with the sentences imposed for the kidnapping and rape

offenses     and     the    repeat-violent-offender          specification—was          clearly     and

convincingly contrary to law.              The State’s reliance on R.C. 2967.28(B) and

2929.19(B)(2)(c) is misplaced.3                “When a judge fails to properly impose

statutorily mandated postrelease control as part of a defendant’s sentence, the

postrelease-control sanction is void.” State v. Holdcroft, 137 Ohio St.3d 526,

2013-Ohio-5014, paragraph two of the syllabus, applying State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238.                    Notwithstanding the language of R.C.

2967.28(B) and 2929.19(B)(2)(c) quoted by the State, the Supreme Court of Ohio

has held, “For criminal sentences imposed on and after July 11, 2006, in which a

trial court failed to properly impose postrelease control, trial courts shall apply the

procedures set forth in R.C. 2929.191.” State v. Singleton, 124 Ohio St.3d 173,

2009-Ohio-6434, paragraph two of the syllabus. See also State v. Ketterer, 126

Ohio St.3d 448, 2010-Ohio-3831, ¶ 69, quoting Singleton at paragraph two of the

syllabus. But see State v. Clark, 2d Dist. Clark No. 2012 CA 16, 2013-Ohio-299,

¶ 34 (observing that “[t]he three dissenting justices [in Singleton] argued that R.C.


3
  We cannot fault the State, however, because “the Ohio Supreme Court’s jurisprudence in the ever-
evolving area of postrelease control has been anything but easy to decipher * * *.” Pyne, 2014-Ohio-3037,
at ¶ 12.

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2929.191 was clear and limited its own application to sentences imposed prior to

the effective date of the act”).

       {¶69} “R.C. 2929.191 * * * establishes a procedure to remedy sentences

that fail to properly impose a term of post-release control for defendants who were

sentenced on or after its July 11, 2006 effective date.” State v. Smalls, 5th Dist.

Stark No. 2013CA00086, 2013-Ohio-5674, ¶ 17, citing State v. Gutierrez, 3d Dist.

Hancock No. 5-10-14, 2011-Ohio-3126, ¶ 92, citing Singleton at paragraph two of

the syllabus. R.C. 2929.191 provides that a PRC-related sentencing error must be

corrected before the defendant completes his or her prison term:

       If, prior to July 11, 2006, a court imposed a sentence including a

       prison term of a type described in division (B) (2)(c) of section

       2929.19 of the Revised Code and failed to notify the offender

       pursuant to that division that the offender will be supervised under

       section 2967.28 of the Revised Code after the offender leaves prison

       or to include a statement to that effect in the judgment of conviction

       entered on the journal or in the sentence pursuant to division (D)(1)

       of section 2929.14 of the Revised Code, at any time before the

       offender is released from imprisonment under that term and at a

       hearing conducted in accordance with division (C) of this section,

       the court may prepare and issue a correction to the judgment of

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Case No. 1-13-53



       conviction that includes in the judgment of conviction the statement

       that the offender will be supervised under section 2967.28 of the

       Revised Code after the offender leaves prison.

(Emphasis added.) R.C. 2929.191(A)(1). “[O]nce an offender has been released

from prison, he cannot be subjected to another sentencing to correct the trial

court’s flawed imposition of postrelease control.” Holdcroft at ¶ 11, citing State v.

Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ¶ 70 and State v. Simpkins, 117

Ohio St.3d 420, 2008-Ohio-1197, syllabus, ¶ 38. In other words, under R.C.

2929.191 and the jurisprudence of the Supreme Court of Ohio, once an offender

completes his prison term, time has run out for the sentencing court to apply R.C.

2929.191 and correct its flawed imposition of PRC. See id. As a result, the PRC

portion of the original sentence remains void, and a court cannot impose a prison

term for a violation of the improperly imposed PRC. Holdcroft at paragraph two

of the syllabus, applying Fischer; State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-

5144, ¶ 12, citing Fischer at paragraph one of the syllabus; State v. Lee, 1st Dist.

Hamilton No. C-120307, 2013-Ohio-1811, ¶ 15-16; State v. King, 5th Dist.

Muskingum No. CT2012-0009, 2012-Ohio-4580, ¶ 8.

       {¶70} The Supreme Court of Ohio has also stated that if a sentencing court

properly notified a defendant concerning PRC at the sentencing hearing but failed

to include the PRC notification in its sentencing entry, the court may use a nunc

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Case No. 1-13-53



pro tunc entry to correct the error as long as it does so before the defendant

completes his or her prison sentence. State v. Qualls, 131 Ohio St.3d 499, 2012-

Ohio-1111, syllabus, ¶ 24. The Court in Qualls held: “When a defendant is

notified about postrelease control at the sentencing hearing, but notification is

inadvertently omitted from the sentencing entry, the omission can be corrected

with a nunc pro tunc entry and the defendant is not entitled to a new sentencing

hearing.” State v. Bundy, 7th Dist. Mahoning No. 12 MA 86, 2013-Ohio-2501, ¶

21, quoting Qualls at syllabus. In reaching its holding, the Court in Qualls stated:

       [W]hen the notification of postrelease control was properly given at

       the sentencing hearing, the essential purpose of notice has been

       fulfilled and there is no need for a new sentencing hearing to remedy

       the flaw. The original sentencing entry can be corrected to reflect

       what actually took place at the sentencing hearing, through a nunc

       pro tunc entry, as long as the correction is accomplished prior to the

       defendant’s completion of his prison term.

(Emphasis sic.) Bundy at ¶ 21, quoting Qualls at ¶ 24.

       {¶71} King is similar to this case. In that case, the Fifth District Court of

Appeals reversed the appellant’s sentence because the trial court imposed a term

of imprisonment based on the appellant’s violation of a void PRC sanction:



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           Appellant argues his post-release control in Muskingum

      County Case Number CR2003-7A was improperly imposed because

      the trial court journal entry reads,

           “The court further notified the defendant that post release

      control is mandatory in this case up to a maximum of five (05) years

      as well as the consequences for violating conditions imposed by the

      parole board under Revised Code § 2967.28.”

           The Ohio Supreme Court in State v. Fischer, 128 Ohio St.3d 92

      (2010), held a sentence that does not include the statutorily

      mandated term of post-release control is void, is not precluded from

      appellate review by principles of res judicata, and may be reviewed

      at any time, on direct appeal or by collateral attack.

           Appellant’s sentence imposing post-release control in the

      underlying case, CR 2003-7A, was void as the trial court failed to

      state a definite term of post-release control. Appellant had served

      his entire sentence in Case No. CR2003-7A, had not been

      resentenced, and there was no nunc pro tunc entry filed correcting

      the improper post-release control imposition according to State v.

      Bloomer 122 Ohio St.3d 200, 2009-Ohio-2462 and State v. Simpkins

      117 Ohio St.3d 420, 2008-Ohio-1197. Accordingly, we find the trial

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       court erred in imposing a prison term for violating a “void” post

       release control sanction.

King at ¶ 5-8.

       {¶72} In this case, the State concedes that the sentencing court in October

2006 improperly imposed PRC and that Coleman was released from imprisonment

in that case before the sentencing court corrected the improperly imposed PRC

sanction.   Indeed, in case number CR2005 0365, Coleman was convicted of

felonious assault, a second-degree felony, resulting in a mandatory three-year PRC

sanction. See R.C. 2967.28(B)(2). However, the sentencing court’s entry stated

that the three-year PRC term was discretionary: “Upon completion of the prison

term, the defendant shall be subject to such further period of supervision under

POST RELEASE CONTROL as the parole board may determine pursuant to law

(up to 3 years).” (Oct. 9, 2013 Tr. at 9, State’s Ex. 2). As was the case in King,

the court in case number CR2005 0365 did not remedy its improper imposition of

PRC before Coleman’s release from prison.          See King at ¶ 8.      Therefore,

Coleman’s PRC sanction in case number CR2005 0365 is void, and the trial court

in this case erred in imposing a sentence of 806 days in prison based on a violation

of that void PRC sanction.

       {¶73} Coleman’s first assignment of error is sustained.



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       {¶74} For the foregoing reasons, the judgment of the Allen County

Common Pleas Court is affirmed in part and reversed in part, and the matter is

remanded to the trial court for resentencing consistent with our disposition of the

first assignment of error.

                                                      Judgment Affirmed in Part,
                                                           Reversed in Part and
                                                              Cause Remanded

WILLAMOWSKI, P.J., concurs in Judgment Only as to
    Assignment of Error No. 1

SHAW, J., concurs.

/jlr




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