[Cite as State v. Simmons, 2011-Ohio-6074.]




                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 96208



                                      STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                    DANIEL SIMMONS
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-538775

        BEFORE: Stewart, J., Blackmon, P.J., and Cooney, J.
       RELEASED AND JOURNALIZED:                 November 23, 2011

ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square, Suite 1016
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, J.:

       {¶ 1} Defendant-appellant, Daniel Simmons, appeals from convictions for

felonious assault with notice of prior conviction and repeat violent offender specification,

domestic violence, and abduction. He complains that: (1) exculpatory evidence was not

preserved by the state, (2) due process was denied when his motion to dismiss for lack of a

speedy trial was denied, (3) the testimony of an expert witness was improperly admitted,

(4) his convictions were based upon insufficient evidence and were against the manifest

weight of the evidence, (5) his sentence subjected him to multiple punishments for a single

crime, (6) his convictions for felonious assault and domestic violence should have been

merged, (7) his convictions for felonious assault and abduction should have been merged,
and (8) his right to due process was denied because restitution was contested but

nevertheless granted without a hearing. For the reasons that follow, we affirm.

      {¶ 2} Evidence presented at Simmons’s bench trial established that Simmons and

the victim, Marley Kichinka, had been dating for approximately two years and had lived

together for about a year. Anthony Davis, a friend of Simmons, testified that on the night

of June 4, 2010, the two were drunk when they visited his home prior to their stop at a

local bar. Kichinka and Simmons went to the bar for ten cent beer night and began to

argue after consuming a few beers.

      {¶ 3} Simmons and Kichinka left the bar approximately four hours later and were

en route to the home of Simmons’s friends, Seth and Gina, when the arguing resumed.

The friends overheard the commotion outside of their residence and asked Kichinka and

Simmons to leave. The two then headed to their apartment.

      {¶ 4} The altercation became physical when they arrived home.               Kichinka

testified that Simmons struck her in the face, knocked her down, then dragged her into

their apartment where he continued to beat her, and then choked her until she became

unconscious. Kichinka further testified that when she regained consciousness, Simmons

took her shoes and cell phone and forcibly restrained her from leaving the apartment.

      {¶ 5} Kichinka managed to escape the apartment the next morning and made her

way to a local laundromat. Simmons followed her to the establishment and attempted to

convince her to leave with him.      An attendant at the laundromat, Rebecca Szilagyi,

testified that she observed Kichinka’s facial injuries and tense demeanor and asked
Simmons to leave. Kichinka called her brother-in-law to pick her up and went to the

hospital for treatment.

       {¶ 6} Simmons was found guilty and sentenced as follows: three years for

felonious assault and two years for abduction to be served consecutively, and six months

for domestic violence to be served concurrently with the other charges, for a total of five

years in prison.

       {¶ 7} In his first assignment of error, Simmons claims that the state’s failure to

preserve a telephone recording of a conversation that he had with Kichinka during his

incarceration amounted to a denial of due process, since the recording contained

exculpatory evidence.

       {¶ 8} The recording was offered by the state in support of its motion to revoke

Simmons’s communication privileges because he had repeatedly attempted to contact the

victim in violation of a no contact order. In addition to providing the court with the

recording, the state provided phone logs from the Cuyahoga County Jail that indicated

Simmons had attempted to contact Kichinka 229 times over a three-week period while he

was incarcerated. The court granted the motion in part by prohibiting Simmons from

contacting anyone other than his family and his attorney.

       {¶ 9} A defendant’s due process rights are violated if the prosecution fails to

preserve materially exculpatory evidence. State v. Lewis (1990), 70 Ohio App.3d 624,

634, 591 N.E.2d 854. However, failure to preserve evidence that is merely potentially
useful does not amount to a due process violation unless bad faith is shown. Arizona v.

Youngblood (1988), 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281.

       {¶ 10} Evidence is materially exculpatory only if “there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” State v. Johnston (1989), 39 Ohio St.3d 48, 529 N.E.2d 898,

paragraph five of the syllabus. “The burden is on the defendant to show the exculpatory

nature of [unavailable] evidence.” State v. Sowell, 8th Dist. No. 90732, 2008-Ohio-5875,

¶28.

       {¶ 11} Simmons fails to demonstrate that the contents of this single phone

conversation was materially exculpatory or, for that matter, how the recording would have

been potentially useful to his defense.    Furthermore, Simmons has not met his burden of

demonstrating that the results of his trial would have been different had the recording or its

contents been available to him, so his first assigned error is overruled.

       {¶ 12} In his second assignment of error, Simmons contends that the denial of his

motion to dismiss for lack of a speedy trial constitutes a deprivation of due process.

       {¶ 13} Criminal defendants are guaranteed the right to a speedy trial pursuant to the

Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio

Constitution. Ohio’s speedy trial statute provides that a person against whom a felony

charge is pending shall be brought to trial within 270 days after arrest. Each day during

which the accused is held in jail in lieu of bail on the pending charge shall be counted as

three days.   R.C. 2945.71(E).     Therefore, an individual who is incarcerated must be
brought to trial within 90 days. State v. Benson (1985), 29 Ohio App.3d 321, 322, 505

N.E.2d 987.

       {¶ 14} “In accordance with the speedy trial provisions, the statutory time period

begins to run on the date the defendant is arrested; however, the date of arrest is not

counted when computing the time period.”        State v. Shabazz, 8th Dist. No. 95021,

2011-Ohio-2260, ¶24. Also, the speedy trial time may be tolled by several events; such

as, discovery motions, motions for continuances, motions to revoke privileges, and

competency referrals. R.C. 2945.72.

       {¶ 15} “The standard of review of a speedy trial issue is to count the days of delay

chargeable to either side and determine whether the case was tried within the time limits *

* *.” State v. Dunbar, 8th Dist. No. 87317, 2007-Ohio-3261, ¶160-61, citing State v.

Blumensaadt, 11th Dist. No. 2000-L-107, 2001-Ohio-4317.

       {¶ 16} In this instance, the statutory period for Simmons’s right to a speedy trial

began to run on June 15, 2010, the day following his arrest. Since he was being held in

jail on the pending charges, he was required to be tried on or before September 13, 2010,

barring any tolling events. His trial began on November 15, 2010, 153 days following

his arrest. However, there were several tolling events that extended the 90-day period for

speedy trial.

       {¶ 17} On July 16, 2010, the state filed its motion to revoke defendant’s

communication privileges. A hearing on the motion took place three days later on July
19, 2010. This motion, “occasioned by the * * * improper act of the accused,” tolled the

speedy trial time. R.C. 2945.72(D).

       {¶ 18} Also, on July 19, 2010, counsel for Simmons stated to the court that his

client was under “significant stress,” and requested that he be referred to the court

psychiatric clinic to ascertain his competency to stand trial. On August 9, 2010, the court

ordered Simmons to undergo a 20-day inpatient competency evaluation since he had

refused to cooperate with the clinic psychiatrist. On September 10, 2010, a competency

hearing was held, and the court found Simmons competent to proceed to trial. These

events tolled the speedy trial statute for 53 days. R.C. 2945.72(B) (time tolled while

determining if defendant is competent to stand trial).

       {¶ 19} The record indicates that on October 15, 2010, Simmons filed a demand for

discovery and motion for continuance. These were also tolling events pursuant to R.C.

2945.72(E) and (H). See, also, State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781

N.E.2d 159, syllabus. Five days elapsed before a hearing was held on the motions.

       {¶ 20} On October 20, 2010, a hearing was held where the state informed the court

that it was prepared to proceed to trial. However, newly appointed counsel for Simmons

requested a continuance in order to further interview witnesses. The court granted this

request and set trial for November 3, 2010. This motion tolled the running of the speedy

trial clock for 14 days. R.C. 2945.72(H).

       {¶ 21} Finally, on November 3, 2010, the court rescheduled the trial to November 8,

2010, since it was engaged in trial in another case. “Pursuant to R.C. 2945.72(H) a court
may grant a continuance upon its own initiative as long as it is reasonable.” State v. King,

70 Ohio St.3d 158, 162, 1994-Ohio-412, 637 N.E.2d 903.

       {¶ 22} The speedy trial time was tolled by Simmons on four occasions for a total of

75 days, and by the court on one occasion for five days. With these tolling events, 73

days passed between his arrest and the commencement of his trial.

       {¶ 23} Simmons’s second assignment of error is overruled.

       {¶ 24} In his third assignment of error, Simmons claims that his right to due process

was violated when sexual assault nurse examiner, Elizabeth Petitt, testified for the state as

an expert witness.

       {¶ 25} “A ruling concerning the admission of expert testimony is within the broad

discretion of the trial court and will not be disturbed absent an abuse of discretion.” Scott

v. Yates, 71 Ohio St.3d 219, 221, 1994-Ohio-462, 643 N.E.2d 105.

       {¶ 26} A court receives expert testimony to “assist the trier of fact in determining a

fact issue or understanding the evidence.” Miller v. Bike Athletic Co., 80 Ohio St.3d 607,

611, 1998-Ohio-178, 687 N.E.2d 735. A trial court serves as a gatekeeper to ensure that

the admissibility of an expert’s testimony meets threshold requirements of relevance and

reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113

S.Ct. 2786, 125 L.Ed.2d 469; Evid.R. 702(C).            An expert witness must possess

knowledge in the relevant subject area that is superior to an ordinary person, and may be

“qualified as an expert by specialized knowledge, skill, experience, training, or education
regarding the subject matter of the testimony.” Evid.R. 702(A) and (B). The expert’s

opinion must be based upon scientifically valid principles. Evid.R. 702(C).

       {¶ 27} In this instance, Petitt was called by the hospital at Kichinka’s request to

conduct a domestic violence examination.             Prior to offering an opinion about her

observations and the treatment she rendered, Petitt testified that she was a board-certified

family nurse practitioner, a registered nurse, a certified forensic nurse examiner, held dual

masters degrees in education and as a family nurse practitioner, and had approximately 15

years of experience in the field of nursing. She testified that, her examination of Kichinka

revealed injuries consistent with a beating, and that she observed petechia1 on the victim’s

face and neck that were indicative of strangulation.

       {¶ 28} Simmons protests that Petitt’s testimony exceeded her ability and

qualifications as an expert witness, and that her opinion was based only upon her

observations and not scientific data. He also complains that Petitt incorrectly testified that

a CAT scan was performed on Kichinka, and that the examining physician’s report did not

corroborate her perception and opinion concerning petechia.

       {¶ 29} Petitt’s testimony was within the scope of her expertise because she is a

trained medical professional whose qualifications are in areas of assault and domestic

violence injuries.     Her testimony concerning the relationship between petechia and

asphyxiation helped the trier of fact to understand the severity and duration of the choking


           Petechia are “minute reddish or purplish spot[s] containing blood that appears in skin or
       1


mucous          membrane          as      a        result       of      localized      hemorrhage.”
http://dictionary.reference.com/browse/petechiae (last accessed November 10, 2011)
episode inflicted upon the victim. See Evid.R. 702(B); see, also, State v. Stillman, 5th

Dist. No. 04CAA07052, 2004-Ohio-6974 (expert testimony concerning strangulation by

sexual assault nurse examiner allowed). Nevertheless, these qualifications alone do not

establish the legal reliability of her opinions.

       {¶ 30} In order to establish the reliability of expert testimony, courts focus on how

the experts arrived at their conclusions.          Valentine v. Conrad, 110 Ohio St.3d 42,

2006-Ohio-3561, 850 N.E.2d 683, ¶16. In State v. Young, 6th Dist. No. L-06-1106,

2007-Ohio-754, a sexual assault nurse examiner was found to be qualified as an expert

witness “regarding the examination and recognition of injuries and trauma” based not only

upon her stellar educational qualifications, but also because “her testimony was based

upon reliable procedures and information utilized within the medical field.” Id. at ¶22.

       {¶ 31} Here, Petitt testified that her notes were in fact part of the medical record,

and her testimony was partly based upon observations noted during Kichinka’s treatment.

See Staff Notes to Evid.R. 703 (expert testimony may be based upon facts observed or

data collected upon examination or testing). Petitt’s opinions do not need a scientific

foundation since Evid.R. 703 allows an expert to render an opinion based wholly on

perceptions. State v. Solomon (1991), 59 Ohio St.3d 124, 126, 570 N.E.2d 1118.

       {¶ 32} Petitt’s testimony was properly admitted by the trial court, and accordingly,

Simmons’s third assignment of error is overruled.

       {¶ 33} In his fourth assigned error, Simmons claims that there was insufficient

evidence to convict him of felonious assault.
      {¶ 34} When reviewing a claim that there is insufficient evidence to support a

criminal conviction, we view the evidence in a light most favorable to the prosecution to

determine whether any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks (1981), 61 Ohio St.3d 259, 574

N.E.2d 492, paragraph two of the syllabus. A conviction based on legally insufficient

evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 102

S.Ct. 2211, 72 L.Ed.2d 652, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560.

      {¶ 35} Felonious assault, defined by R.C. 2903.11(A)(1) commands that “[n]o

person shall knowingly * * * [c]ause serious physical harm to another * * *.” “Serious

physical harm” is defined as “harm that carries a substantial risk of death * * * permanent

incapacity * * * temporary substantial incapacity * * * permanent disfigurement * * * or

temporary serious disfigurement.” R.C. 2901.01(A)(5)(b), (c), and (d).

      {¶ 36} Simmons argues that the element of serious physical harm was not proven

beyond a reasonable doubt. He contends that the trial court’s finding that he strangled

Kichinka was unsupported because the photographs of her injuries admitted into evidence

did not clearly demonstrate the presence of petechia. He also argues that the acts to

restrain Kichinka were not committed for the purpose of inflicting serious physical harm.

      {¶ 37} In State v. Smith, 9th Dist. Nos. 23468 and 23464, 2007-Ohio-5524,

sufficient evidence of serious physical harm to support a conviction for felonious assault

was established with only the testimony of the victim and an emergency room physician.
In Smith, the victim testified that she almost lost consciousness due to the defendant

violently choking her. Id. at ¶27. The treating emergency room physician testified that

he observed “a petechial rash on the upper portion of [the victim’s] face and eyes,” and

that her injuries were consistent with extreme choking pressure that constituted a

“life-threatening act.” Id. The court stated that “[i]t is hard to fathom how choking a

victim to the brink of unconsciousness does not * * * amount to a ‘substantial’ risk of

death.” Id.

       {¶ 38} Similar to Smith, the testimony of Kichinka and Petitt establishes the element

of serious physical harm. Additionally, the court found distinct support for this element

when it considered the photographic evidence of the severe swelling and bruising in and

around Kichinka’s left eye to constitute a temporary serious disfigurement. See State v.

Plemmons-Greene, 8th Dist. No. 92267, 2010-Ohio-655, ¶ 29 (photograph of black eye,

swelling, and bruising, in conjunction with testimony, sufficient for a finding of “serious

physical harm”).

       {¶ 39} Simmons’s fourth assignment of error is overruled.

       {¶ 40} Simmons, in his fifth assignment of error, argues that he was deprived of due

process when the court overruled his motion for judgment of acquittal for kidnapping and

found him guilty of a lesser offense of abduction.

       {¶ 41} Count one of Simmons’s indictment charges him with kidnapping pursuant

to R.C. 2905.01(A)(3). Kichinka testified that after the beating ceased, Simmons took her

shoes and cell phone and repeatedly pushed her down when she attempted to leave.
During closing argument, counsel for Simmons requested the court to “consider

instructions for deliberation as to the lesser included of kidnaping [sic] of abduction to the

charge of kidnaping * * *.” The trial court found that the victim was not restrained for

the purpose of terrorizing or inflicting serious physical harm. As a result, the court ruled

that the state had not proven the crime of kidnapping, but had met the burden of proving

the crime of abduction beyond a reasonable doubt.

       {¶ 42} Abduction, pursuant to R.C. 2905.02(A)(2), states that “[n]o person shall *

* * [b]y force or threat, restrain the liberty of another person under circumstances that

create a risk of physical harm to the victim or place the other person in fear.” “Fear” is

defined as “a distressing emotion aroused by impending danger.” Websters Unabridged

Dictionary (2 Ed. 1998) 724, 1960. Abduction is a lesser included offense of kidnapping.

 State v. Maurer (1984), 15 Ohio St.3d 239, 271, 473 N.E.2d 768.

       {¶ 43} Simmons argues that Kichinka was not restrained and that she could not

have possibly been placed in fear after the assault because she went to sleep afterwards.

He also contends that the trial court’s ruling is contradictory and cannot be reconciled

since it found that while Kichinka was not restrained for the purposes of being

“terrorized,” she was nevertheless placed in “fear.”

       {¶ 44} In State v. Kvasne, 169 Ohio App.3d 167, 2006-Ohio-5235, 862 N.E.2d 171,

the victim “testified that [the defendant] pushed her onto the floor, straddled her, and

pinned her arms above her head, * * * that her struggles to escape were in vain; she felt

‘absolutely helpless’ to prevent him from beating her badly, and being aware of [the
defendant’s] angry disposition * * * was afraid for her safety during the incident.” Id.

¶64. This court found that the defendant’s “use of force and threat during the restraint

placed her in fear, thereby violating R.C. 2905.02(A)(2).” Id.

      {¶ 45} The trial court found that Kichinka’s testimony supported being abducted.

She repeatedly stated that she felt she was not free to leave, and feared that Simmons

would harm her further if she attempted to do so. Kichinka felt compelled to remain in

the apartment because she feared additional harm, and her apprehension was not

unreasonable under the circumstances.

      {¶ 46} The trial court did not err by finding Simmons guilty of abduction.

Simmons’s fifth assignment of error is overruled.

      {¶ 47} In his sixth assignment of error, Simmons claims that the court made an

unconstitutional amendment to the indictment because abduction is not a lesser included

offense of kidnapping as alleged in the indictment.

      {¶ 48} Courts are permitted to, “at any time before, during or after a trial amend

[an] indictment * * * in respect to * * * any variance with the evidence, provided no

change is made in the name or identity of the crime charged.” Crim.R. 7(D).

      {¶ 49} “The amendment of a charge ‘in an indictment to a lesser included offense

does not change the name or identity of the crime charged.’” Cleveland v. Smith, 8th

Dist. No. 81778, 2009-Ohio-3594, ¶6, quoting State v. Watson, 5th Dist. No.

2004CA00286, 2005-Ohio-1729, ¶10.         “[I]f lesser offenses are included within the

offense charged, the defendant may be found * * * guilty of * * * a lesser included
offense.” Crim.R. 31(C). Abduction is a lesser included offense of kidnapping. State v.

Roman, 8th Dist. No. 92743, 2010-Ohio-3593, ¶5; State v. Manus, 8th Dist. No. 94631,

2011-Ohio-603, ¶27.

       {¶ 50} Simmons’s indictment was properly amended to a lesser included offense of

the crime charged in order to conform to the evidence presented at trial. Therefore, we

overrule his sixth assignment of error.

       {¶ 51} Simmons complains in his seventh assigned error that his conviction for

domestic violence amounts to a denial of due process, since the state failed to prove all of

the elements of the offense. Specifically, he claims that the court did not find that there

were conjugal relations. Therefore, he asserts that the element of consortium needed to

prove cohabitation was not established in order to sustain a conviction for domestic

violence.

       {¶ 52} Domestic violence, pursuant to R.C. 2919.25(A), states that “[n]o person

shall knowingly cause or attempt to cause physical harm to a family or household

member.” “Family or household member” is defined as “[a] spouse, a person living as a

spouse, or a former spouse of the offender.”         R.C. 2919.25(F)(1)(i).     The phrase

“‘[p]erson living as a spouse’ means a person who is living or has lived with the offender

in a common law marital relationship, who otherwise is cohabiting with the offender * *

*.” R.C. 2919.25(F)(2)(b).

       {¶ 53} “The essential elements of ‘cohabitation’ are (1) sharing of familial or

financial responsibilities and (2) consortium.” State v. Williams, 79 Ohio St.3d 459,
1997-Ohio-79, 683 N.E.2d 1126, paragraph one of the syllabus. “Factors that might

establish consortium include mutual respect, fidelity, affection, society, cooperation,

solace, comfort, aid of each other, friendship, and conjugal relations.” State v. Smith, 8th

Dist. Nos. 95932 and 95933, 2011-Ohio-4409, ¶30, quoting Williams, 79 Ohio St.3d at

465.    In Williams, testimony from the victim that established shared financial

responsibilities, society, and conjugal relations with the defendant, even while living

separately, sufficed as proof of consortium. Id. at 465.

       {¶ 54} The testimony of Kichinka and Simmons was sufficient to establish conjugal

relations as well as cohabitation. Kichinka testified that she and Simmons lived together

for about a year and a half, that they had been intimate during that period of time, and that

she purchased items for Simmons because she loved him.              Simmons testified that

Kichinka was his girlfriend, that they lived together for about two years and were involved

romantically, and that he paid for many of their living expenses.

       {¶ 55} Evidence of conjugal relations standing alone is not dispositive to prove

domestic violence. Clearly however, the above testimony establishes society, affection, aid,

friendship, and cooperation as well as conjugal relations. Consequently, Simmons’s seventh

assignment of error is overruled.

       {¶ 56} Simmons’s eighth and ninth assignments of error will be addressed together.

 In his eighth assignment of error, Simmons argues that felonious assault and domestic

violence are allied offenses of similar import and, therefore, it was improper for the trial

court to impose separate sentences. Simmons complains in his ninth assignment of error
that his convictions for felonious assault and abduction were part and parcel of the same

activity, and therefore should have been merged.

       {¶ 57} “R.C. 2941.25, Ohio’s allied offenses statute, protects against multiple

punishments for the same criminal conduct in violation of the Double Jeopardy Clauses of

the United States and Ohio Constitutions.” State v. Sanchez, 8th Dist. Nos. 93569 and

93570, 2010-Ohio-6153, ¶49, citing State v. Moore (1996), 110 Ohio App.3d 649, 653,

675 N.E.2d 13. “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). Furthermore, “[w]hen a defendant has been found guilty of offenses that are

allied offenses, R.C. 2941.25 prohibits the imposition of multiple sentences.” State v.

Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶17.

       {¶ 58} The conduct of the accused must be considered when determining whether

two offenses are allied offenses of similar import subject to merger under R.C. 2941.25.

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus.

Courts are not tasked with “perform[ing] any hypothetical or abstract comparison of the

offenses at issue in order to conclude that the offenses are subject to merger.” Id. at ¶47.

“[T]he question is whether it is possible to commit one offense and commit the other with

the same conduct, not whether it is possible to commit one without committing the other. *

* * If the offenses correspond to such a degree that the conduct of the defendant

constituting commission of one offense constitutes commission of the other, then the
offenses are of similar import.” Id. at ¶48. “If the multiple offenses can be committed

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

by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ * * * If the

answer to both questions is yes, then the offenses are allied offenses of similar import and

will be merged.”         Id. at ¶49-50, quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, ¶50.

          {¶ 59} Pursuant to R.C. 2941.25(B), offenses will not merge if a court finds that the

commission of one offense will never result in the commission of the other, if the offenses

are carried out separately, or if the defendant has a separate animus for each offense. Id.

at ¶51.

          {¶ 60} Simmons argues that the separate sentence for domestic violence is

erroneous since the count of domestic violence was an allied offense to felonious assault

and should have been merged.           The trial court, however, determined that Simmons

committed two distinct crimes and had a separate animus for each.

          {¶ 61} The court found that Simmons first committed felonious assault and caused

serious physical harm to Kichinka when he struck her and blackened her eye, resulting in a

temporary serious disfigurement. Simmons’s later actions of hitting, chocking, and

dragging Kichinka constituted a separate instance of domestic violence. The trial court

was correct in its determination that domestic violence and felonious assault were

independent offenses in this instance.
       {¶ 62} R.C. 2905.02(A) defines abduction and provides, in pertinent part that “[n]o

person shall * * * (2) By force or threat, restrain the liberty of another person under

circumstances that create a risk of physical harm to the victim or place the other person in

fear.” A finding of “serious physical harm” is a prerequisite to a conviction for felonious

assault, but is not an element of abduction. R.C. 2903.11(A).

       {¶ 63} Testimony established, and the court noted, that Simmons abducted

Kichinka only after beating her, and also that these distinct actions were carried out in

order to restrain Kichinka, and not to inflict serious bodily harm. Therefore, the offenses

here were carried out at different times and with a separate animus.

       {¶ 64} Assignments of error eight and nine are overruled.

       {¶ 65} In his final assignment of error, Simmons claims that he was denied due

process when the court granted restitution to the victim without holding a hearing, even

though he contested restitution.

       {¶ 66} An award of restitution is reviewed using an abuse of discretion standard.

State v. Mobley-Melbar, 8th Dist. No. 92314, 2010-Ohio-3177, ¶37. R.C. 2929.18(A)(1)

states, in pertinent part: “[i]f the court decides to impose restitution, the court shall hold a

hearing on restitution if the offender, victim or survivor disputes the amount.” See, also,

State v. Jarrett, 8th Dist. No. 90404, 2008-Ohio-4868, ¶18 (a trial court is required to hold

a separate hearing when the defendant “object[s] to restitution or dispute[s] the amount

requested by the victims”).
       {¶ 67} “[P]rior to imposing restitution, a trial court must determine the amount of

restitution to a reasonable degree of certainty, ensuring that the amount is supported by

competent, credible evidence.” State v. Waiters, 191 Ohio App.3d 720, 2010-Ohio-5764,

947 N.E.2d 710, ¶17, citing State v. Warner (1990), 55 Ohio St.3d 31, 69, 564 N.E.2d 18.

Economic loss may be demonstrated by introducing documentary and/or testimonial

evidence. Id. at ¶18.

       {¶ 68} At the sentencing hearing, the state requested an order for Simmons to pay

restitution to Kichinka for her medical bills.     Counsel for Simmons objected to any

restitution beyond services rendered to Kichinka for her injuries related to the case at bar.

No testimony was offered to support the request for restitution since Kichinka was not

present. Instead, the state presented an invoice from Fairview Hospital that itemized

emergency services rendered to Kichinka. This invoice is not a part of the record before

us. Nevertheless, the court noted that the dates and times of treatment corresponded to

Kichinka’s previous testimony, and stated that it had “no reason to believe that isn’t the

appropriate bill for the medical records that were [previously] submitted here.”

       {¶ 69} Simmons, however, now argues that the medical records indicate that

insurance coverage existed, since the record contains a coded statement from Fairview

Hospital dated June 5, 2010 with a notation indicating possible insurance coverage. This

argument was not raised below, so we decline to consider it. Furthermore, the trial court

determined the amount of restitution to a reasonable degree of certainty by scrutinizing the

dates and services listed on the hospital invoice. The invoice was competent and credible
evidence. Simmons objected only to restitution exceeding medical treatment required for

Kichinka’s injuries that resulted from the charged offenses. There is no indication that

the invoice contained charges for any treatment other than what was required for

Kichinka’s injuries. The trial court, therefore, complied with defense counsel’s request to

limit the restitution.

       {¶ 70} Simmons’s final assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

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

County Court of Common Pleas to carry this judgment into execution. The defendant’s

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

to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
