[Cite as State v. Morgan, 2019-Ohio-3691.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-103
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-132
                                                  :
 ISSAC ALEXANDER MORGAN                           :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                             OPINION

                         Rendered on the 13th day of September, 2019.

                                             ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

KIMBERLY MELCHOR, Atty. Reg. No. 0093843, 214 West Monument Avenue, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                             .............




WELBAUM, P.J.
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       {¶ 1} Defendant-appellant, Issac Alexander Morgan, appeals from his conviction

in the Clark County Court of Common Pleas after a jury found him guilty of multiple counts

of rape and kidnapping and one count of felonious assault. In support of his appeal,

Morgan contends that his conviction for each offense was not supported by sufficient

evidence and was against the manifest weight of the evidence. Morgan also contends

that his trial counsel provided ineffective assistance, that he was denied a fair trial due to

pre-indictment delay, and that the trial court erred in granting the State a trial continuance

for purposes of locating and serving a subpoena on a key witness. For the reasons

outlined below, the judgment of the trial court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On March 15, 2016, the Clark County Grand Jury returned an indictment

charging Morgan with two counts of rape in violation of R.C. 2907.02(A)(2), two counts of

kidnapping in violation of R.C. 2905.01(A)(4), and one count of felonious assault in

violation of R.C. 2903.11(A)(1).     Each of the counts included a three-year firearm

specification.

       {¶ 3} The aforementioned charges stemmed from allegations that Morgan sexually

assaulted two female prostitutes while holding them at gunpoint outside of South High

School near Clifton Avenue in Springfield, Ohio. It was alleged that on May 25, 2015,

Morgan kidnapped and raped the first victim, D.C., after D.C. declined Morgan’s offer to

pay for sex. It was also alleged that Morgan committed felonious assault on D.C. by

pushing her to the ground and striking her in the face with his handgun. With regard to
                                                                                          -3-


the second victim, C.R., it was alleged that on July 13, 2015, Morgan kidnapped and

raped C.R. at gunpoint after C.R. had initially accepted Morgan’s offer to pay for sex.

       {¶ 4} Morgan initially pled not guilty to the charges. Following his not guilty plea,

Morgan filed several pretrial motions, including a Crim.R. 14 motion for relief from

prejudicial joinder. In that motion, Morgan requested that the trial court sever the rape,

kidnapping, and felonious assault charges related to D.C. from the rape and kidnapping

charges related to C.R. In support of the motion, Morgan argued that the joinder of those

offenses prejudiced him because there was a risk that the jury would use the evidence in

one case to bolster the allegations in the other case. The trial court, however, disagreed

and overruled Morgan’s motion.

       {¶ 5} Shortly thereafter, Morgan accepted a plea agreement and pled guilty to one

count of rape with the accompanying firearm specification. In exchange for Morgan’s

guilty plea, the State dismissed the remaining charges and specifications. At sentencing,

the trial court sentenced Morgan to ten years in prison for rape and a mandatory three

years in prison for the firearm specification. The trial court ordered the three-year prison

sentence for the firearm specification to be served prior and consecutive to the sentence

for rape, thus amounting to a total, aggregate sentence of 13 years in prison. The trial

court also designated Morgan a Tier III sex offender. Morgan then appealed.

       {¶ 6} On appeal, Morgan challenged the knowing, intelligent, and voluntary nature

of his guilty plea. Upon review, this court found merit to Morgan’s claim and reversed

his guilty plea on grounds that the trial court failed to substantially comply with Crim.R.

11(C)(2)(a).   State v. Morgan, 2018-Ohio-319, 104 N.E.3d 941, ¶ 17 (2d Dist.).

Specifically, this court found that “[t]he trial court failed to inform Morgan that he was
                                                                                            -4-


subject to a mandatory prison term before it accepted his guilty plea to the rape count.”

Id.   “The trial court also failed to inform Morgan that because the prison time was

mandatory for a rape conviction, he was ineligible for community control sanctions in lieu

of prison.” Id. “Furthermore, the plea form signed by Morgan incorrectly stated that a

mandatory prison term was ‘not applicable’ to his conviction for rape.” Id. Based on

these errors, this court found that Morgan’s guilty plea was not made knowingly,

intelligently, and voluntarily. Id. The matter was therefore reversed and remanded back

to the trial court for further proceedings.

       {¶ 7} On remand, the trial court held a pretrial conference during which Morgan

notified the court that he no longer wanted to plead guilty and instead wanted to move

forward with a jury trial. As a result, the trial court scheduled a jury trial to take place on

July 24, 2018. On the day of trial, the State advised the trial court that, despite multiple

efforts, it had been unable to locate D.C. for purposes of serving her with a subpoena

ordering her to appear at trial. Since D.C. was not present for trial, Morgan moved the

trial court to prevent the State from presenting any evidence that related to the charges

involving D.C. The trial court granted the motion, which prompted the State to move for

a trial continuance so that it could locate D.C. and serve her with a subpoena. Although

recognizing the last-minute nature of the State’s request, the trial court granted the State

a short, three-week trial continuance until August 14, 2018. D.C. thereafter appeared for

trial as scheduled.



                Trial Testimony and Evidence Related to Assault on D.C.

       {¶ 8} D.C. testified that Morgan approached her and offered her money for sex as
                                                                                         -5-


she was walking by the area of South High School. D.C. testified that when she found

out Morgan only had $5, she declined his offer and attempted to walk away. However,

rather than letting her walk away, Morgan pulled D.C.’s arm, placed a handgun to her

head and nose, and said: “Bitch, you gonna do what I tell you to do.” Trial Trans. Vol. I

(Aug. 14, 2018), p. 161. D.C. testified that Morgan then pushed her to the ground, struck

her in the face with his gun, and forced her to perform oral sex on him. During this time,

D.C. testified that Morgan also “tried” to put his penis in her vagina and anus. Id. at 168.

       {¶ 9} After being assaulted by Morgan, D.C. testified that she left the scene and

sought assistance from an individual on the street who called 911. The recorded 911

call was admitted into evidence and was played at trial. During the call, D.C. can be

heard describing her assailant as a black male in an orange shirt with short curly hair.

D.C. also can be heard stating that her assailant had a gun and that he had run down

Selma Road after assaulting her outside of South High School. D.C. further stated that

the attack had happened approximately 20 minutes prior to the call.

       {¶ 10} D.C. identified Morgan as her assailant at trial, albeit with some difficulty

due to her eyesight. D.C. testified that her eyesight was in the same condition as it had

been during the time of the attack.      D.C. also testified that her assailant was tall,

heavyset, and light-skinned. On cross-examination, D.C. admitted that she may have

been on cocaine on the night she was attacked. D.C. also testified that she did not

remember a lot about the incident, and that she thought she had blacked out for two days.

D.C. was nevertheless adamant that Morgan had held a gun to her head and forced her

to engage in sex acts on the night in question.

       {¶ 11} Detective Ronnie Terry was the officer who responded to D.C.’s 911 call.
                                                                                        -6-


Terry testified that D.C. reported she had been walking along Clifton Avenue when she

was approached by a male who forced her alongside South High School at gunpoint and

sexually assaulted her. Terry testified that D.C. described her assailant as a black male

of average height and weight in his 30s with short hair, wearing an orange shirt and jeans.

Terry testified that D.C. was severely intoxicated when he encountered her. Terry also

confirmed that his written reported noted that D.C. could hardly walk without assistance

and that she could have possibly been injured by falling.

       {¶ 12} With regard to D.C.’s injuries, both D.C. and Detective Terry testified that

she was taken to the hospital for treatment on the night of the attack. Photographs of

D.C.’s injuries were taken at the hospital and admitted into evidence. The photographs

showed that D.C. had a laceration on her nose, dried blood on her face, and abrasions

on her right knee and elbow. D.C. also testified that she suffered a broken right arm from

Morgan pushing her to the ground, and that she had to recuperate in a nursing home for

three months.

       {¶ 13} While at the hospital, D.C. was examined by a Sexual Assault Nurse

Examiner (“SANE nurse”), Mary Beth Hannon. Hannon testified that she obtained a

narrative history from D.C. prior to her examination. Hannon testified that D.C. told her

she was walking on Clifton Avenue when she was approached by a tall, heavyset black

male with short curly hair who was wearing an orange shirt and jean shorts. D.C. also

told Hannon that the man had a gun and made her perform oral sex on him. According

to Hannon, D.C. further told her that the man pushed her down, penetrated her vagina

with his penis, and hit her in the head with his gun.

       {¶ 14} Continuing, Hannon testified that she observed abrasions to D.C.’s nose,
                                                                                         -7-


lips, right knee, and left hand and thumb. Hannon also testified that D.C. had right

shoulder pain and that the hospital medical records indicated that D.C. had sustained a

fractured right shoulder. Hannon further testified that D.C. had abrasions and redness

on the opening of her vagina, injuries which Hannon claimed were consistent with the

sexual assault described by D.C.

       {¶ 15} Hannon additionally testified to performing a rape kit on D.C. In performing

the rape kit, Hannon testified that she collected a DNA standard from D.C. by swabbing

D.C.’s cheek and gum line. Hannon also testified that she collected vaginal, anal, and

oral swabs from D.C. Hannon further testified that she included D.C.’s bra with the rape

kit, but that D.C.’s underwear was not included, as D.C. advised her that the underwear

had been left at the crime scene. After completing the rape kit, Hannon testified that she

released the rape kit to law enforcement. Officer William Evans of the Springfield Police

Department testified to collecting the rape kit from Hannon. The parties stipulated that

Officer Jeffrey Steinmetz of the Springfield Police Department delivered the rape kit to the

Ohio Bureau of Criminal Investigation (“BCI”) for testing.

       {¶ 16} Sarah Grimsley, a forensic scientist at BCI, also testified at trial. Grimsley

testified that she examined D.C.’s rape kit and tested the samples contained therein for

the presence of semen. Grimsley testified that her testing revealed that semen was

present on D.C.’s vaginal and anal swabs. Grimsley testified that she also discovered

one sperm cell on D.C.’s oral swab. After detecting the presence of semen on the swabs,

Grimsley testified that she prepared and packaged the swabs for DNA testing by another

BCI analyst.

       {¶ 17} Hallie Dreyer, another forensic scientist at BCI, was the analyst who
                                                                                        -8-


conducted the DNA testing. In conducting her testing, Dreyer testified that she extracted

and copied the DNA found on D.C.’s vaginal and anal swabs and then compared that

DNA to a known DNA standard from Morgan to see if there was a match. Dreyer testified

that she initially conducted a conventional STR DNA test. Dreyer testified that the results

of the STR DNA test detected a DNA mixture from D.C. and one male contributor.

Dreyer testified that although there were similarities between the male contributor’s DNA

and Morgan’s DNA, the test results were inconclusive as to whether Morgan was the male

contributor. Dreyer testified that this is a common outcome due to the abundance of

female DNA on vaginal and anal swabs.

       {¶ 18} After the conventional STR DNA test results came back inconclusive,

Dreyer testified that she performed a Y-STR DNA test on D.C.’s vaginal and anal swabs.

Dreyer testified that a Y-STR DNA test is a male-specified DNA test that allows the analyst

to ignore any female DNA that is present on the swabs. Dreyer testified that unlike the

conventional STR DNA test, the male DNA profile that is obtained from Y-STR DNA

testing is not necessarily unique to one male, but rather is unique to any paternal male

relative of the male DNA contributor. Dreyer testified that the results of the Y-STR DNA

test in this case revealed that there was only one male DNA contributor and that Morgan

was included as a contributor. That is to say, the Y-STR DNA testing revealed that

Morgan’s DNA (and the DNA of his paternal male relatives) matched the male DNA profile

that was found in D.C.’s vagina and anus.

       {¶ 19} Detective Sandy Fent, the investigating detective assigned to this case, also

testified at trial.   Fent testified that on March 2, 2016, a photograph lineup was

administered to D.C. during which D.C. identified Morgan as her assailant.            The
                                                                                        -9-


photograph lineup was created by Fent and administered by Detective Trent King. King,

a juvenile detective, testified to having no knowledge about D.C.’s case at the time he

administered the lineup to D.C. Video evidence of King administering the lineup to D.C.

was admitted by the defense and played at trial. The video shows that D.C. initially

indicated to King that the individual in photograph #6 (not Morgan) had hair like her

assailant.   However, after that, D.C. also said that the individual in photograph #4

(Morgan) looked like her assailant too. King then attempted to confirm whether D.C. had

chosen photograph #4. Shortly thereafter, D.C. chose photograph #4, Morgan’s picture.

After D.C. chose Morgan’s picture, she asked King if she had picked the right person, to

which King responded he did not know. Then, when Detective Fent reentered the room,

D.C. told Fent that she did not know if she picked the right person.



                Trial Testimony and Evidence Related to Assault on C.R.

       {¶ 20} C.R. testified that during the early morning hours of July 13, 2015, she was

sitting on the steps of South High School when a black male wearing an orange shirt

approached her and offered her $30 to engage in a sexual act with him. C.R. testified

that she accepted the offer, and that she and the man thereafter walked to an area near

the front of the building. Upon reaching a walled-off, concealed grassy area (see State’s

Exhibit No. 6), C.R. testified that the man put a handgun in her face and asked her “if

[she] knew what that was.” Trial Trans. p. 263. C.R. testified that she told the man,

“[y]es, what do you want me to do?” Id. C.R. testified that the man thereafter forced

her to perform oral sex on him and to engage in vaginal sex.

       {¶ 21} C.R. testified that after being sexually assaulted for what seemed like an
                                                                                         -10-


hour, she told the man that she was finished and attempted to walk away. However,

C.R. testified that when she started to walk away, the man fired a warning shot with his

gun and continued to force her to have sex with him. C.R. testified that when the sex act

was finished, the man took her purse and did not pay her.

       {¶ 22} C.R. testified that her assailant walked south toward Leffel Lane, and that

she went in the opposite direction on Clifton Avenue. When C.R. reached the middle of

Clifton Avenue, she began to scream and a gentleman stopped to help her. C.R. testified

that the gentleman used his phone to call 911. The recorded 911 call was admitted into

evidence and played at trial. On the recording, C.R. and the gentleman can be heard

reporting that she was robbed by a black male with a gun wearing an orange t-shirt and

shorts. C.R. also reported that the male went south on Clifton Avenue and that he had

shot his gun in the air.

       {¶ 23} Like D.C.’s case, Detective Terry was the officer who responded to C.R.’s

911 call. Terry testified that he was dispatched to the report of a robbery, but, upon

arriving at the scene, he learned that C.R. had been both robbed and sexually assaulted.

Terry testified that C.R. described her assailant as a black male in his 30s of average

height wearing an orange shirt and jeans. Terry testified that C.R. reported the male

forced her at gunpoint to the northeast side of South High School, made her perform oral

sex on him, and fired a warning shot.

       {¶ 24} Continuing, Terry testified that C.R. directed him to the exact area where

the assault had occurred. Once he reached that area, Terry testified that he discovered

a shell casing from a gun in the grass. Less than a foot away from the shell casing, Terry

testified that there was an area in the ground where the dirt was disturbed. Terry testified
                                                                                         -11-


that he used a pocket knife to cut around the area of disturbed dirt and thereafter

discovered a nine-millimeter bullet in the ground.

       {¶ 25} In addition to the shell casing and bullet, Terry also found various personal

items scattered down the sidewalk and grass south of the high school. Those items

included a purse, cell phone, eyeglass case, cigarette pack, and make-up. Terry testified

that C.R. identified the items as belonging to her and that the items were released to her

on the night of the assault. Terry testified that the items were not tested for fingerprints

because the ground was wet and the weather was humid. According to Terry, such

conditions were not conducive to obtaining prints. Terry also testified that fingerprints

could not be taken from items made of fabric, like the purse.

       {¶ 26} Terry additionally testified that he and his partner, Officer Bronsord, were

crime scene technicians and that they worked together to take pictures of the crime scene

and to collect all the evidence. Terry testified that he collected the shell casing and the

bullet and made sure they were both properly tagged and placed in a secure locker in the

Springfield Police Department’s property room.

       {¶ 27} Both C.R. and Detective Terry testified that C.R. refused medical treatment

after the assault. C.R. and Detective Fent also testified that C.R. could not identify her

assailant in a photograph lineup. Fent, the detective assigned to the case, testified that

she had no leads on the identity of C.R.’s assailant until she learned about a November

2015 traffic stop on Selma Road involving Morgan.

       {¶ 28} State Highway Patrol Trooper Tim Durham testified regarding the traffic stop

in question. Durham testified that on November 4, 2015, he initiated a traffic stop on

Selma Road due to a vehicle traveling at night without its headlights illuminated. Durham
                                                                                        -12-


testified that when he and his partner approached the vehicle, they made observations

that provided them with probable cause to search the vehicle. Durham testified that he

asked the occupant in the front passenger seat, later identified as Morgan, if there was

anything in the vehicle that could hurt him or his partner. According to Durham, Morgan

responded that he had a handgun in the glove box.          Durham testified that he then

immediately removed a handgun and loaded magazine from the vehicle’s glove box.

      {¶ 29} State Highway Patrol Trooper Josh Eldridge also testified at trial. Eldridge

testified that he was ordered to test-fire the handgun found during the traffic stop. In

doing so, Eldridge testified that the handgun was operable and that he test-fired the

handgun twice.    Following the test-fires, Eldridge testified that he collected the two

resulting bullets and shell casings and sent them to BCI for testing. Detective Fent

testified that she requested BCI to compare the test-fired bullets and shell casings with

the bullet and shell casing that were found at the scene of C.R.’s assault.

      {¶ 30} Matthew White, a BCI firearm and toolmark examiner, testified that he

compared the known test-fired bullets and shell casings from Morgan’s handgun (which

White identified as a nine-millimeter Luger Hi-Point Model C-9 pistol), with the bullet and

shell casing found at the scene of C.R.’s assault. Based on his comparisons, White was

able to conclude that the shell casing found at the scene of C.R.’s assault was fired from

Morgan’s gun. White also concluded that the bullet found at the scene of C.R.’s assault

had features that are unique to Morgan’s gun. However, White testified that the features

on the bullet were not unique enough to conclusively determine whether the bullet was

fired from Morgan’s gun.

      {¶ 31} Detective Fent testified that she obtained a buccal swab from Morgan with
                                                                                       -13-


his consent while he was in custody following the November 2015 traffic stop. Fent

thereafter provided the buccal swab to BCI for purposes of obtaining a DNA standard.

Morgan was arrested after Fent received White’s firearm analysis, the Y-STR DNA results

back from D.C.’s case, and D.C.’s identification of Morgan in the photograph lineup.

      {¶ 32} Once Morgan was arrested, Fent conducted an interview with Morgan.

The interview was video recorded and submitted into evidence following some redaction.

During this interview, Morgan admitted that the gun found during the traffic stop belonged

to him, but denied having any involvement in the assaults of D.C. and C.R. Morgan also

advised Fent that he lived at 139 East Euclid Avenue, which Fent testified is only three

and a half blocks south from where D.C. and C.R. were sexually assaulted. Fent also

testified that Morgan’s girlfriend resided on the 1100 block of Clifton Avenue, which Fent

testified is only four or five blocks from where D.C. and C.R. were assaulted.



                           The Jury’s Verdict and Sentencing

      {¶ 33} After presenting the foregoing testimony and evidence, the State rested its

case. Once the State rested, Morgan chose not to call any defense witnesses and rested

his case as well. The jury then deliberated and found Morgan guilty of all the indicted

charges and firearm specifications. At sentencing, the trial court merged the rape and

kidnapping counts pertaining to each victim, and the State elected to have Morgan

sentenced for the two counts of rape.         The trial court also merged the firearm

specification that was attached to D.C.’s felonious assault with the firearm specification

that was attached to D.C.’s rape.

      {¶ 34} Following the mergers, the trial court imposed a mandatory prison term of
                                                                                        -14-


ten years for each count of rape. The trial court also imposed a three-year mandatory

prison term for each of the two firearm specifications.      The trial court ordered the

sentences for the firearm specifications to be served prior and consecutive to the

sentences for rape. The trial court also sentenced Morgan to four years in prison for

felonious assault and ordered that sentence to be served consecutive to the sentences

for rape. Therefore, the trial court sentenced Morgan to an aggregate term of 30 years

in prison.

       {¶ 35} Morgan now appeals from his conviction, raising four assignments of error

for review.



                               First Assignment of Error

       {¶ 36} Under his first assignment of error, Morgan contends that his convictions

for the rapes and kidnappings of D.C. and C.R. and the felonious assault of D.C. were

not supported by sufficient evidence and were against the manifest weight of the

evidence. We disagree.

       {¶ 37} As a preliminary matter, we note that the record indicates Morgan failed to

preserve his insufficiency of the evidence argument for appeal in that he did not make a

Crim.R. 29 motion for acquittal during his trial. “It is generally accepted in Ohio that if

counsel fails to make and renew a Crim.R. 29 motion during a jury trial, the issue of

sufficiency is waived on appeal.” State v. Carson, 2d Dist. Montgomery No. 27566,

2018-Ohio-4352, ¶ 21, citing State v. Richardson, 2016-Ohio-8081, 75 N.E.3d 831, ¶ 16

(2d Dist.). Accord State v. Brock, 2d Dist. Clark No. 2018-CA-112, 2019-Ohio-3195, ¶

19. However, despite the absence of a Crim.R. 29 motion, an appellate court may
                                                                                           -15-

conduct a plain error review. State v. Fugate, 2d Dist. Montgomery No. 25782, 2014-

Ohio-415, ¶ 20, citing State v. Hibbler, 2d Dist. Clark No. 2001-CA-43, 2002-Ohio-4464,

¶ 23. “Plain error does not exist unless, but for the error, the outcome of the trial would

have been different.” Id., citing State v. Moreland, 50 Ohio St.3d 58, 552 N.E.2d 894

(1990). Thus, we will review Morgan’s insufficiency of the evidence argument for plain

error.

         {¶ 38} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683

N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.) Id.

         {¶ 39} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating

whether a conviction was against the manifest weight of the evidence, the appellate court

must review the entire record, weigh the evidence and all reasonable inferences, consider

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier
                                                                                        -16-


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

conviction must be reversed and a new trial ordered.’ ” Thompkins at 387, quoting State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61,

2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.

      {¶ 40} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.   State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997). However, we may determine which of several competing

inferences suggested by the evidence should be preferred. A judgment of conviction

should be reversed as being against the manifest weight of the evidence only in

exceptional circumstances. Martin at 175.



                         Rape and Kidnapping of D.C. and C.R.

      {¶ 41} As previously noted, Morgan was convicted of two counts of rape in violation

of R.C. 2907.02(A)(2). To be convicted under that statute, the State was required to

present evidence establishing that Morgan engaged in sexual conduct with another by

purposely compelling the other person to submit by force or threat of force.          R.C.

2907.02(A)(2). The definition of “sexual conduct” includes “vaginal intercourse between

a male and female; anal intercourse,” and “fellatio.” R.C. 2907.01(A). The definition of

“force” is “any violence, compulsion, or constraint physically exerted by any means upon

or against a person or thing.” R.C. 2901.01(A)(1).
                                                                                         -17-


       {¶ 42} Morgan was also convicted of two counts of kidnapping in violation of R.C.

2905.01(A)(4). To be convicted under that statute, the State was required to present

evidence establishing that Morgan, by force, threat, or deception, restrained another

person’s liberty with the purpose to engage in sexual activity with the person against their

will. R.C. 2905.01(A)(4). “Sexual activity” is defined as “sexual conduct,” which, as

previously noted, includes vaginal and anal intercourse and fellatio.        See id.; R.C.

2907.01(A) and (C). To restrain another person’s liberty means “ ‘to limit one’s freedom

of movement in any fashion for any period of time.’ ” State v. Martin, 10th Dist. Franklin

Nos. 02AP33, 02AP34, 2002-Ohio-4769, ¶ 32, quoting State v. Wingfield, 8th Dist.

Cuyahoga No. 69229, 1996 WL 100847, *3 (Mar. 7, 1996).

       {¶ 43} In this case, the record indicates that the trial testimony of both D.C. and

C.R. established all the necessary elements to support a conviction for both rape and

kidnapping. Each woman testified that, during her assault, Morgan pointed a handgun

at her head and forced her to engage in oral and vaginal intercourse with him. D.C.

testified that Morgan prevented her from walking away by pointing a gun at her and

grabbing her arm. D.C. also testified that Morgan pushed her down to the ground and

hit her in the face with his gun prior to sexually assaulting her. Similarly, C.R. testified

that Morgan put a handgun in her face prior to sexually assaulting her. C.R. also testified

that after being sexually assaulted for what seemed like an hour, she attempted to walk

away, but Morgan fired a warning shot with his gun and continued to force her to have

sex with him.

       {¶ 44} Although the foregoing testimony established all elements of the rape and

kidnapping charges at issue, Morgan argues that the State failed to present sufficient
                                                                                         -18-


evidence establishing that he was the individual who assaulted D.C. and C.R. With

regard to D.C., Morgan argues that her identification of him using the photograph lineup

was unreliable because D.C. briefly considered another suspect on the lineup and asked

Detective King whether she had picked the right person after she had selected Morgan.

Morgan also contends that D.C.’s identification of him on the photograph lineup was

unreliable because she told Detective Fent “I don’t know if I picked the right person or

not.” Defense Exhibit A. Morgan further argues that D.C. had a difficult time pointing

him out at trial due to her poor eyesight, which D.C. testified was in the same condition

during the assault. We find no merit to these claims.

       {¶ 45} Regardless of the weaknesses in D.C.’s identification of Morgan as her

assailant, the fact remains that the State presented DNA evidence linking Morgan to

D.C.’s sexual assault.    This included the Y-STR DNA test results that established

Morgan as a DNA contributor on D.C.’s vaginal and anal swabs. Although the nature of

the Y-STR DNA test also includes the men in Morgan’s paternal family line as potential

DNA contributors, when considering the Y-STR DNA test results in conjunction with other

pieces of circumstantial evidence presented at trial, such as: (1) that Morgan lived within

a short walking distance from the scene of the crime; (2) that the assailant traveled on

foot before and after the crime; and (3) that D.C. was able to identify Morgan as her

assailant in the photograph lineup, there was sufficient circumstantial evidence identifying

Morgan as D.C.’s assailant.      Although D.C. exhibited some uncertainty about her

identification of Morgan after the photograph lineup was administered, Detective Fent

testified that, in her experience, D.C.’s concern about whether she picked the right person

was a natural concern that is exhibited by victims of crime.
                                                                                         -19-


       {¶ 46} The State also presented sufficient evidence establishing that Morgan was

C.R.’s assailant.   Although C.R. could not identify Morgan in a photograph lineup,

Morgan was linked to C.R.’s assault through a shell casing that was found at the scene

of the crime. The State’s firearm expert testified that he analyzed the shell casing and

determined that it had been fired from the same gun that was confiscated from Morgan

following a traffic stop. We also note that Morgan never disputed his ownership of the

gun during the investigation.

       {¶ 47} Morgan nevertheless argues that the shell casing evidence was insufficient

to identify him as C.R.’s assailant because the bullet found next to the shell casing did

not match his gun. This argument greatly mischaracterizes the evidence. The firearm

expert testified that there was not enough information or “unique characteristics” on the

bullet for him to determine whether it was fired from Morgan’s gun. Trial Trans. p. 282.

That testimony is patently different from concluding that the bullet did not match Morgan’s

gun. Although the firearm expert could not conclusively determine whether the bullet

had been fired from Morgan’s gun, the expert did testify that the bullet had “similar class

characteristics” to Morgan’s firearm. Id. Therefore, while Morgan would like this court

to believe otherwise, the evidence presented by the State did not rule out the possibility

that the bullet was fired from Morgan’s gun.

       {¶ 48} Given that: (1) the shell casing found at the scene was positively identified

as being fired from Morgan’s gun; (2) the bullet found at the scene was located less than

one foot away from the shell casing; and (3) no other shell casings or bullets were found

at the scene of the crime, we find that it would be fair to assume that the bullet came from

the shell casing that was fired from Morgan’s gun. When considering the shell casing
                                                                                           -20-


evidence, the logical inferences flowing from it, as well as the fact that: (1) Morgan lived

within a short walking distance from the scene of the crime; (2) the assailant traveled on

foot before and after the crime; and (3) Morgan was alleged to have committed the same

type of crime against D.C. two months earlier at the same location and in the same

manner, there was sufficient circumstantial evidence to identify Morgan as C.R.’s

assailant.

       {¶ 49} For the foregoing reasons, when construing the evidence in a light most

favorable to the State, we find that Morgan’s convictions for the rapes and kidnappings of

D.C. and C.R. were supported by sufficient evidence. Accordingly, there was no error,

let alone plain error, in that regard.

       {¶ 50} We also cannot conclude that Morgan’s rape and kidnapping convictions

were against the manifest weight of the evidence. Simply because the State relied on

circumstantial evidence to prove the rape and kidnapping charges did not render

Morgan’s convictions against the manifest weight of the evidence.            This is because

circumstantial evidence carries the same probative value as direct evidence. State v.

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

       {¶ 51} Moreover, although D.C. may have given contradictory testimony at times,

it was for the jury to determine what part of her testimony, if any, was credible. In

reaching its verdict, the jury was free to believe all, part, or none of the testimony of each

witness and to draw reasonable inferences from the evidence presented. State v. Baker,

2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28. In this case, the jury chose to

believe the testimony and evidence that supported the State’s version of the facts.

Therefore, since it is not patently apparent that the jury lost is way in finding Morgan guilty
                                                                                         -21-


of raping and kidnapping D.C. and C.R., we will not disturb that finding on appeal.



                                Felonious Assault of D.C.

       {¶ 52} Morgan also contends that his conviction for the felonious assault of D.C.

was not supported by sufficient evidence and was against the manifest weight of the

evidence. Pursuant to R.C. 2903.11(A)(1), a person commits felonious assault when he

“knowingly * * * [c]ause[s] serious physical harm to another[.]” R.C. 2903.11(A)(1). The

definition of “serious physical harm” includes “[a]ny physical harm that involves some

permanent incapacity, whether partial or total, or that involves some temporary,

substantial incapacity[.]” R.C. 2901.01(A)(5)(c). “Serious physical harm” also includes

“[a]ny physical harm that involves acute pain of such duration as to result in substantial

suffering or that involves any degree of prolonged or intractable pain.”               R.C.

2901.01(A)(5)(e).

       {¶ 53} As stated previously, D.C. testified that Morgan pushed her to the ground

and struck her in the face during the sexual assault. The record indicates that this

resulted in injuries to D.C.’s arm, face, and knee. The officer who responded to D.C.’s

911 call, Detective Terry, confirmed that D.C. had a small laceration to her face with dried

blood on it and abrasions on her knee and elbow. Terry further testified that D.C. was

taken to the hospital where she received medical care and had pictures taken of her

injuries. The photographic evidence of D.C.’s injuries show that D.C. had dried blood on

her face and a laceration on her nose from where Morgan struck her. See State’s Exhibit

Nos. 22-23. D.C. also had abrasions on her elbow and knee from where she claimed

Morgan pushed her to the ground and raped her. See State’s Exhibit Nos. 24-25.
                                                                                        -22-


       {¶ 54} Most importantly, D.C. testified that her arm was broken as a result of

Morgan pushing her to the ground. The SANE nurse who examined D.C., Mary Beth

Hannon, testified that she reviewed D.C.’s hospital record before examining her and that

the record indicated D.C. had been diagnosed with a fractured right shoulder. Hannon

also testified that the hospital record indicated that D.C. had to undergo a “reduction” to

put her shoulder back into place. Trial Trans. p. 239. D.C. testified that as a result of

her fractured shoulder, she had to recuperate in a nursing home for three months.

       {¶ 55} Morgan claims that the foregoing evidence was insufficient to establish that

D.C. suffered serious physical harm, because the State failed to admit D.C.’s medical

records into evidence. But, contrary to Morgan’s claim, “[s]erious physical harm may be

shown by testimony of medical treatment.” State v. Huckabee, 8th Dist. Cuyahoga No.

67588, 1995 WL 628374, *4 (Oct. 26, 1995). Accord State v. Grider, 8th Dist. Cuyahoga

No. 68594, 1995 WL 753933, *2-3 (Dec. 20, 1995); State v. Petty, 10th Dist. Franklin Nos.

11AP-716 and 11AP-766, 2012-Ohio-2989, ¶ 29-35 (rejecting the defendant’s argument

that the State failed to establish the victim suffered serious physical harm because it

offered no medical evidence to document the victim’s injuries or to substantiate that the

injuries were serious).

       {¶ 56} Several appellate courts in this state have held that testimony from victims

regarding their injuries is sufficient to establish serious physical harm. See, e.g., State

v. Higgins, 9th Dist. Summit No. 26120, 2012-Ohio-5650, ¶ 17 (finding victim’s testimony

that he sustained a gunshot wound, which caused him to suffer a collapsed lung, broken

rib, and nerve damage, that required him to be hospitalized for two weeks was sufficient

evidence that he had suffered serious physical harm under R.C. 2901.01(A)(5)(c) and
                                                                                         -23-

(e)); State v. Driesbaugh, 11th Dist. Portage No. 2002-P-0017, 2003-Ohio-3866, ¶ 47

(finding victim’s testimony that the accident in question caused his arms and legs to

sporadically go numb, making him unsteady on his feet for 21 months and prevented him

from working for approximately 3 months, was sufficient to establish that the victim

suffered a temporary substantial incapacity so as to qualify as serious physical harm

under R.C. 2901.01(A)(5)(c)); State v. Scott, 4th Dist. Washington No. 15CA2, 2015-

Ohio-4170, ¶ 3, and 23-24 (finding “substantial testimony from the victim regarding her

injuries” was sufficient to establish serious physical harm).

       {¶ 57} Based on the foregoing, we find that the testimony from D.C. and Hannon

indicating that D.C. suffered from a fractured right shoulder and D.C.’s testimony that she

recuperated at a nursing home for three months was sufficient evidence of “serious

physical harm” as defined under R.C. 2901.01(A)(5)(c) and (e). This court has in fact

held that pushing a victim to the ground causing her to suffer a broken arm constitutes

serious physical harm as that term is used in the statute.           State v. Boyd, 2d Dist.

Montgomery No. 11659, 1990 WL 78595, *4 (June 5, 1990). Accord State v. Brown, 2d

Dist. Montgomery No. 27738, 2018-Ohio-3068, ¶ 30.               Therefore, when viewing the

evidence in a light most favorable to the State, we find that Morgan’s conviction for

felonious assault was also supported by sufficient evidence, and that there was no error,

let alone plain error, in that regard.

       {¶ 58} In challenging the manifest weight of the evidence, Morgan argues that the

evidence of the cause of D.C.’s shoulder injury was inconsistent because Detective Terry

indicated in his written report that D.C.’s injuries “could potentially have been caused by

falling” as a result of being “severely intoxicated.” Trial Trans. p. 211-213; Defendant’s
                                                                                          -24-


Exhibit B. However, whether D.C. fell down due to being intoxicated or due to being

pushed by Morgan was for the jury to decide based on the evidence presented at trial.

Here, the jury believed D.C.’s testimony that she fell and fractured her shoulder as a result

of Morgan pushing her to the ground during the sexual assault. We will not disturb that

finding as “[t]he jury, as the trier of fact, is in the best position to make credibility

determinations and to draw inferences from the evidence because they observe the

witness’ demeanor and because they alone actually hear the testimony as it is given.”

State v. Wagers, 12th Dist. Butler No. CA92-11-231, 1993 WL 369240, *1 (Sept. 20,

1993), citing State v. Thomas, 70 Ohio St.2d 79, 79-80, 434 N.E.2d 1356 (1982).

Therefore, Morgan’s felonious assault conviction was not against the manifest weight of

the evidence.

       {¶ 59} Having found that Morgan’s convictions for rape, kidnapping and felonious

assault were supported by sufficient evidence and were not against the manifest weight

of the evidence, Morgan’s first assignment of error lacks merit and is overruled.



                              Second Assignment of Error

       {¶ 60} Under his second assignment of error, Morgan contends that he received

ineffective assistance of counsel because his trial counsel failed to: (1) object to and move

to suppress D.C.’s identification of him at trial; (2) request a mistrial after Detective King

testified in a manner that suggested Morgan had a criminal history; and (3) renew his

pretrial motion for relief from prejudicial joinder. Morgan’s claims lack merit.



                  Standard of Review for Ineffective Assistance Claims
                                                                                         -25-


      {¶ 61} This court reviews alleged instances of ineffective assistance of trial counsel

under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), which has been adopted by the Supreme Court of

Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those

cases, in order to prevail on an ineffective assistance claim, Morgan must show that his

trial counsel rendered deficient performance and that counsel’s deficient performance

prejudiced him. Strickland at paragraph two of the syllabus; Bradley at paragraph two of

the syllabus. The failure to make a showing of either deficient performance or prejudice

defeats a claim of ineffective assistance of counsel. Strickland at 697.

      {¶ 62} To establish deficient performance, Morgan must show that his trial

counsel’s performance fell below an objective standard of reasonable representation. Id.

at 688. In evaluating counsel’s performance, a reviewing court “must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. “The adequacy of counsel’s performance must be viewed in

light of all of the circumstances surrounding the trial court proceedings.”        State v.

Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29, citing Strickland.

“Hindsight is not permitted to distort the assessment of what was reasonable in light of

counsel’s perspective at the time.” State v. Cook, 65 Ohio St.3d 516, 524-525, 605

N.E.2d 70 (1992), citing Strickland at 687-689. “[A] debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel.” State v.

Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 37 (2d Dist.), citing

Strickland at 689. (Other citation omitted.)

      {¶ 63} To establish prejudice, Morgan must show that there is a reasonable
                                                                                          -26-


probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d

864, ¶ 204, citing Strickland at 687-688, 694; Bradley at paragraph two of the syllabus.

“ ‘A reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ ” Bradley at 142, quoting Strickland at 694.



           Failure to Object/Move to Suppress D.C.’s Identification of Morgan

       {¶ 64} Morgan first contends that his trial counsel provided ineffective assistance

by not filing a motion to suppress D.C.’s testimony identifying him as her assailant.

Morgan claims that a motion to suppress should have been filed because of how the

photograph lineup was administered to D.C. and because of the uncertainty that D.C.

exhibited after she chose Morgan’s picture on the lineup. Morgan also claims that his

trial counsel was ineffective in failing to object to the admissibility of D.C.’s in-court

identification of him at trial. We disagree.

       {¶ 65} As a preliminary matter, we note that the “ ‘failure to file a suppression

motion does not constitute per se ineffective assistance of counsel.’ ” State v. Madrigal,

87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), quoting Kimmelman v. Morrison, 477 U.S.

365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).          Accord State v. Black, 2d Dist.

Montgomery Nos. 26986, 26991, 2016-Ohio-7901, ¶ 26.               “Where the basis of an

ineffective assistance of counsel claim is counsel’s failure to file a motion to suppress

evidence, the defendant making that claim must prove that the basis of the suggested

suppression claim is meritorious.” In re D.D., 2d Dist. Montgomery No. 22740, 2009-

Ohio-808, ¶ 3, citing Kimmelman and State v. Pillow, 2d Dist. Greene No. 07CA095, 2008-
                                                                                         -27-


Ohio-6046.

       {¶ 66} “Due process may require a court to suppress eyewitness testimony when

the identification results from an unduly suggestive identification procedure.” State v.

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208, citing Foster v.

California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Therefore, “[a]n

accused who seeks to preclude in-court identification testimony bears the burden of

convincing the court that the out-of-court identification procedure employed was both

suggestive and unnecessary and that the testimony will be unreliable under the totality of

the circumstances.” State v. Allen, 1st Dist. Hamilton Nos. C-870437, C-870475, 1988

WL 92639, *1 (Sept. 7, 1988), citing Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243,

53 L.Ed.2d 140 (1977). (Other citation omitted.)

       {¶ 67} “[N]o due process violation will be found where an identification does not

stem from an impermissibly suggestive confrontation, but is instead the result of

observations at the time of the crime.” State v. Davis, 76 Ohio St.3d 107, 112, 666

N.E.2d 1099 (1996); Coleman v. Alabama, 399 U.S. 1, 5-6, 90 S.Ct. 1999, 26 L.Ed.2d

387 (1970).   “A lineup is unduly suggestive if it steers the witness to one suspect,

independent of the witness’s honest recollection.” Adams at ¶ 208, citing Wilson v.

Mitchell, 250 F.3d 388, 397 (6th Cir.2001); see also Jells v. Mitchell, 538 F.3d 478, 511-

512 (6th Cir.2008) (a lineup was found unduly suggestive where the defendant was

depicted in a prison jumpsuit and the other participants in the lineup were in street

clothes).

       {¶ 68} In this case, Morgan conceded in his appellate brief that it is “questionable”

whether the photograph lineup was administered to D.C. in a suggestive manner.
                                                                                          -28-


Indeed, the video evidence of Detective King administering the photograph lineup to D.C.

establishes that King merely confirmed whether or not D.C. chose photograph #4

(Morgan). Therefore, we find nothing in the video demonstrating that King improperly

steered D.C. to pick Morgan’s photograph.

       {¶ 69} Despite this, Morgan argues that D.C.’s identification of him was unreliable

because D.C. thought the individual shown in photograph #6 also looked like her

assailant. Morgan further claims that D.C.’s identification of him was unreliable because,

after picking Morgan’s photograph, D.C. asked if she had picked the right person and

exhibited uncertainty as to whether she had picked the right person. However, the fact

remains that D.C. chose the photograph of Morgan without the presence of any unduly

suggestive tactics. That D.C. may have had concerns about whether she picked the

right person afterwards goes to the weight and credibility of her identification of Morgan,

not to its admissibility.

       {¶ 70} Because D.C.’s identification of Morgan did not stem from an impermissibly

suggestive confrontation procedure, but was instead based on D.C.’s memory of her

assailant’s appearance, Morgan’s trial counsel may have reasonably concluded that it

would have been futile to file a motion to suppress D.C.’s identification testimony. Such

a decision is a matter of trial strategy that cannot form the basis of an ineffective

assistance claim. Also, while the record indicates that D.C. had some difficulty pointing

out Morgan in the courtroom, D.C. was eventually able to point him out and identify him

as her assailant. Trial counsel’s failure to object to D.C.’s arduous in-court identification

was also a matter of trial strategy.

       {¶ 71} That said, even if we had found that trial counsel rendered deficient
                                                                                         -29-


performance by not filing a motion to suppress or by not objecting to D.C.’s in-court

identification, Morgan cannot establish that the outcome of his trial would have been

different but for those failures. Even without D.C.’s identification, Morgan’s identity was

otherwise established through the Y-STR DNA test results and other circumstantial

evidence, including the fact that Morgan lived within a short walking distance from the

scene of the crime scene and that D.C.’s assailant traveled on foot. Therefore, Morgan

cannot establish that he was prejudiced by his trial counsel’s failures. Given that Morgan

failed to establish deficient performance on the part of his trial counsel and resulting

prejudice, his ineffective assistance claim lacks merit.



                               Failure to Request a Mistrial

       {¶ 72} Morgan also argues that his trial counsel provided ineffective assistance by

failing to request a mistrial after Detective King testified in a manner that improperly

suggested Morgan had a criminal history. Specifically, Morgan takes issue with the

portion of King’s testimony explaining how photograph lineups are generated.            King

testified that photograph lineups are generated from “OLEG, the Ohio Law Enforcement

Gateway, driver’s license photos, or six different photos from the City of Springfield’s jail

photo database.” Trial Trans. p. 131-132. King also testified that the photograph lineup

administered to D.C. was generated using “the Clark County Sheriff’s Department,

Springfield Police Division photo logs.”      Id. at 134-135.    Morgan asserts that this

testimony suggested to the jury that the photographs used in the lineup depicted

individuals with criminal histories. According to Morgan, this deprived him of a fair trial.

We disagree.
                                                                                           -30-


       {¶ 73} “When a reference to a defendant’s prior record does not rise to the level of

plain error meriting the trial court to sua sponte declare a mistrial, then ‘there is no basis

to claim that [defendant’s] trial counsel acted ineffectively in failing to seek a mistrial.’ ”

State v. Howard, 2d Dist. Montgomery No. 18884, 2002 WL 1332522, *4 (June 14, 2002),

quoting State v. Jones, 115 Ohio App.3d 204, 208, 684 N.E.2d 1304 (7th Dist.1996).

“Plain error exists ‘if the trial outcome would clearly have been different, absent the

alleged error in the trial court proceedings.’ ” State v. Kessel, 2019-Ohio-1381, ___

N.E.3d ___, ¶ 33 (2d Dist.), quoting State v. Bahns, 185 Ohio App.3d 805, 2009-Ohio-

5525, 925 N.E.2d 1025, ¶ 25 (2d Dist.). (Other citation omitted.)

       {¶ 74} Although improper, we cannot say that Detective King’s indirect, general

reference to Morgan’s prior criminal history affected the outcome of trial. Even if the

statement had not been made, the record indicates that there was an abundance of direct

and circumstantial evidence establishing that Morgan was the individual who attacked

D.C. and C.R., the strongest being the Y-STR DNA test results linking Morgan to the

assault on D.C. and the firearm analysis linking Morgan to the assault on C.R. Therefore,

because King’s statement did not result in prejudice to Morgan, trial counsel was not

ineffective in failing to request a mistrial.



                Failure to Renew Motion for Relief from Prejudicial Joinder

       {¶ 75} For his last ineffective assistance claim, Morgan contends that his trial

counsel was ineffective in failing to renew his motion for relief from prejudicial joinder at

any time during trial. We again disagree.

       {¶ 76} Crim.R. 8(A) governs the joinder of offenses and provides that: “Two or
                                                                                           -31-


more offenses may be charged in the same indictment, information or complaint in a

separate count for each offense if the offenses charged * * * are of the same or similar

character, or are based on the same act or transaction, or are based on two or more acts

or transactions connected together or constituting parts of a common scheme or plan, or

are part of a course of criminal conduct.”

       {¶ 77} “The law favors joinder to prevent successive trials, to minimize the

possibility of incongruous results in successive trials before different juries, to conserve

judicial resources, and to diminish the inconvenience to witnesses.” State v. Broadnax,

2d Dist. Montgomery No. 21844, 2007-Ohio-6584, ¶ 33, citing State v. Schaim, 65 Ohio

St.3d 51, 58, 600 N.E.2d 661 (1992) and State v. Torres, 66 Ohio St.2d 340, 343, 421

N.E.2d 1288 (1981). Accord State v. Goodner, 195 Ohio App.3d 636, 2011-Ohio-5018,

961 N.E.2d 254, ¶ 39 (2d Dist.).        In Broadnax, this court held that a joinder was

appropriate under Crim.R. 8(A) where “all of the offenses at issue were of the same or

similar character, being aggravated robberies, all were committed within a six day period

* * * [a]ll of the offenses involved a similar modus operandi and were committed the same

way, and all of the offenses involved a common scheme, plan or course of criminal

conduct.” Broadnax at ¶ 34. See also State v. Ward, 2d Dist. Montgomery No. 26773,

2016-Ohio-5354, ¶ 15 (joinder appropriate under Crim.R. 8(A) where two aggravated

robberies were committed at the same location in a virtually identical manner on

consecutive days).

       {¶ 78} However, “[e]ven if offenses are properly joined pursuant to Crim.R. 8(A), a

defendant may move to sever the charges pursuant to Crim.R. 14.” Broadnax at ¶ 37.

Crim.R. 14, requires the trial court to order separate trials “[i]f it appears that a defendant
                                                                                          -32-


* * * is prejudiced by a joinder of offenses[.]” Joinder may be prejudicial “when the

offenses are unrelated and the evidence as to each is very weak, * * * but it is otherwise

when the evidence is direct and uncomplicated and can reasonably be separated as to

each offense[.]” (Citations omitted.) Torres at 343-344. “The mere possibility that the

defendant might have a better choice of trial tactics if the counts are separated, or the

mere possibility that he might desire to testify on one count and not on the other, is

insubstantial and speculative; it is not sufficient to show prejudice.” (Citation omitted.)

Id. at 344.

       {¶ 79} “One of the ways in which the State can negate a defendant’s claim of

prejudice is by showing that the evidence pertaining to each crime joined at trial is simple

and direct[.]” (Citations omitted.)    Broadnax at ¶ 38. Accord State v. Brinkley, 105

Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 30. “Evidence is ‘simple and direct’

if the jury is capable of readily separating the proof required for each offense, if the

evidence is unlikely to confuse jurors, if the evidence is straightforward, and if there is

little danger that the jury would ‘improperly consider testimony on one offense as

corroborative of the other.’ ” State v. Freeland, 4th Dist. Ross No. 12CA003352, 2015-

Ohio-3410, ¶ 14, quoting State v. Varney, 4th Dist. Hocking Nos. 07CA18, 07AP18, 2008-

Ohio-5283, ¶ 19; State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215,

¶ 34; State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 50-51.

Therefore, “a defendant does not suffer prejudice from joinder of offenses when the

offenses charged in an indictment are ‘simple and distinct,’ when ‘[t]he factual situation of

each crime was easy to understand and was capable of segregation,[’] and when ‘[t]he

crimes involved different victims, different factual situations, and different witnesses.’ ”
                                                                                         -33-

Freeland at ¶ 14, quoting State v. Clifford, 135 Ohio App.3d 207, 212, 733 N.E.2d 621

(1st Dist.1999).

       {¶ 80} The State can also rebut a defendant’s claim of prejudicial joinder by

satisfying the “other acts” test. LaMar at ¶ 50. That is, “[i]f in separate trials the state

could introduce evidence of the joined offenses as ‘other acts’ under Evid.R. 404(B), a

defendant cannot claim prejudice from the joinder.” Id., citing State v. Coley, 93 Ohio

St.3d 253, 259-260, 754 N.E.2d 1129 (2001). Pursuant to Evid.R. 404(B), evidence of

other bad acts is admissible for “proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” For other-acts evidence to be

admissible to prove identity through a certain modus operandi, the “ ‘other-acts evidence

must be related to and share common features with the crime in question.’ ” Coley at

260, quoting State v. Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616, paragraph one of the

syllabus. (Other citation omitted.)

       {¶ 81} As previously noted, Morgan filed a Crim.R. 14 motion for relief from

prejudicial joinder that requested the trial court to sever the rape, kidnapping, and

felonious assault charges related to D.C. from the rape and kidnapping charges related

to C.R. Morgan alleged that the joinder of those offenses prejudiced him because there

was a risk that the jury would use the evidence in one case to bolster the allegations in

the other case. The trial court overruled the motion and Morgan’s trial counsel failed to

renew it at any time during Morgan’s jury trial.

       {¶ 82} Morgan now claims that his trial counsel’s failure to renew the motion for

relief from prejudicial joinder amounted to ineffective assistance. However, we find that

the joinder of the offenses against Morgan was appropriate under Crim.R. 8(A) and that
                                                                                           -34-


there was no prejudice warranting a severance under Crim.R. 14. This is because the

evidence relating to the offenses against D.C. and C.R. was simple, direct, and capable

of separation. The factual situation of each incident was also easy to understand, as

each incident involved separate victims and separate physical evidence. Furthermore,

even if the offenses in question had been severed, given the common modus operandi in

each case, the evidence from one case would have otherwise been admissible in the

other case as other-acts evidence under Evid.R. 404(B) to prove Morgan’s identity.

       {¶ 83} For the foregoing reasons, even if Morgan’s trial counsel had renewed the

motion for relief from prejudicial joinder at trial, it is unlikely the trial court would have

changed its mind and granted the motion. Any claim otherwise is pure speculation.

Accordingly, because Morgan’s claim is supported by, at best, pure speculation, Morgan

cannot establish that he was prejudiced by counsel’s failure to renew the motion.

       {¶ 84} Having found no merit to any of the ineffective assistance claims raised by

Morgan, his second assignment of error is overruled.



                               Third Assignment of Error

       {¶ 85} Under his third assignment of error, Morgan claims that he was denied the

right to a fair trial due to pre-indictment delay. In support of this claim, Morgan contends

that the nine-month delay between the May 25, 2015 attack on D.C. and his March 14,

2016 indictment prejudiced him because it allowed D.C.’s memory of her assailant to

fade, thus hindering her ability to identify him.     Morgan claims that he was further

prejudiced by the delay because it resulted in missing evidence. We again find no merit

to Morgan’s claims.
                                                                                            -35-


       {¶ 86} It is well established that “[d]elay between a defendant’s involvement in

alleged criminal conduct and an indictment involving such conduct may deprive a

defendant of his constitutionally protected due process rights.” State v. Moore, 2017-

Ohio-1307, 88 N.E.3d 593, ¶ 24 (2d Dist.), citing State v. Luck, 15 Ohio St.3d 150, 472

N.E.2d 1097 (1984), paragraph two of the syllabus.           However, “preindictment delay

violates due process only when it is unjustifiable and causes actual prejudice[.]” State v.

Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. Therefore, “[w]hen a

defendant alleges that he has been prejudiced by the State’s pre-indictment delay in

pursuing a case, the defendant must first produce evidence demonstrating that the delay

has caused actual prejudice to his defense.” State v. Shoopman, 2d Dist. Montgomery

No. 27182, 2017-Ohio-2612, ¶ 8, citing Luck at 157-158. “Then, if the defendant has

established actual prejudice, the State must produce evidence of a justifiable reason for

the delay.” Id., citing Luck at 158.

       {¶ 87} “Actual prejudice exists when missing evidence or unavailable testimony,

identified by the defendant and relevant to the defense, would minimize or eliminate the

impact of the state’s evidence and bolster the defense.” Jones at ¶ 28, citing Luck at

157-158. “A determination of actual prejudice involves ‘ “a delicate judgment” ’ and a

case-by-case consideration of the particular circumstances.” Id. at ¶ 20, quoting State

v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting United

States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). “A reviewing

court must scrutinize a defendant’s claim of prejudice in light of the particular evidence

that was lost or is unavailable as a result of the delay and, in particular, consider the effect

of the lost evidence on the defense[.]” Shoopman at ¶ 9, citing Jones at ¶ 23.
                                                                                           -36-


       {¶ 88} “General assertions that memories have faded are not sufficient to satisfy a

defendant’s burden to demonstrate that he suffered specific, actual prejudice.”

(Citations omitted.) State v. Conley, 2d Dist. Clark No. 01-CA-0013, 2001 WL 958834,

*2 (Aug. 24, 2001). Accord Shoopman at ¶ 9; Jones at ¶ 21, 27. See also Miamisburg

v. Rinderle, 2d Dist. Montgomery No. 26094, 2015-Ohio-351, ¶ 17 (holding the

defendant's broad assertion of fading memories, although potentially true, was not

sufficient to establish actual prejudice because the defendant did not identify any

particular memory at issue or explain how the fading memories prejudiced him). “That

does not mean, however, that demonstrably faded memories * * * cannot satisfy the

actual-prejudice requirement.” Jones at ¶ 21.

       {¶ 89} In this case, Morgan’s general assertion that the pre-indictment delay

allowed D.C.’s memory of her assailant to fade is insufficient to establish actual prejudice.

Moreover, even if D.C.’s memory had been compromised by the nine-month pre-

indictment delay, Morgan’s identity was otherwise established through the Y-STR DNA

test results and other circumstantial evidence, i.e., the fact that Morgan lived within a short

walking distance from the scene of the crime and that D.C.’s assailant traveled on foot.

Therefore, regardless of D.C.’s memory, the State’s evidence sufficiently identified

Morgan as her assailant. Accordingly, we cannot say that D.C.’s possibly faded memory

of her assailant resulted in actual prejudice to Morgan.

       {¶ 90} Morgan also asserts that the pre-indictment delay resulted in missing

evidence, including D.C.’s underwear. The record indicates that D.C.’s underwear was

not included with the rape kit that was sent to BCI for testing and that D.C. advised the

SANE nurse that her underwear was left at the crime scene. Detective Fent testified that
                                                                                        -37-


she had no knowledge of the underwear until it was discussed at trial. Regardless,

Morgan does not explain how D.C.’s underwear was relevant to his defense, and we fail

to see how the pre-indictment delay caused the underwear not to be collected and tested.

If anything, locating and testing the underwear would have prolonged the investigation

and created further pre-indictment delay.

       {¶ 91} Morgan further claims that the pre-indictment delay prejudiced him because

it resulted in certain pieces of physical evidence related to C.R.’s assault not being

collected and tested. Specifically, Morgan asserts that the shell casing and bullet found

at the crime scene and C.R.’s personal belongings that were dropped by the assailant

should have been, but were not tested for fingerprints. Morgan claims that the missing

fingerprint evidence could possibly have exonerated him.           The record, however,

indicates that it was not the pre-indictment delay which prevented the fingerprint evidence

from being collected.    Rather, Detective Terry indicated that he did not dust the

aforementioned items for fingerprints because of the weather.          Specifically, Terry

testified that, on the night of C.R.’s assault, the ground was wet and it was “very humid”

and “moist” outside. Trial Trans. p. 203 and 206.      Based on the weather conditions,

Terry testified that the fingerprint powder would have just stuck to the moisture and “made

a mess.” Id. at 206. Terry also testified that items made of fabric, such as C.R.’s purse,

cannot be fingerprinted. Therefore, C.R.’s claim that the pre-indictment delay resulted

in missing fingerprint evidence lacks merit.

       {¶ 92} Morgan additionally claims that he was prejudiced because his gun was not

sent to the firearm expert for testing. We again fail to see how this was caused by the

pre-indictment delay or how it resulted in actual prejudice to Morgan. With or without the
                                                                                        -38-


gun, the firearm expert was able to compare the shell casing and bullet found at the scene

of the crime with shell casings and bullets that were test-fired from Morgan’s gun. In

doing so, the firearm expert concluded that the shell casing found at the scene was fired

from Morgan’s gun and that the bullet had “similar class characteristics” to Morgan’s gun.

Trial Trans. p. 282. Sending the gun itself to the firearm expert would not have minimized

this evidence or bolstered the defense.       If anything, it would have prolonged the

investigation and would have created greater pre-indictment delay.

      {¶ 93} We further note that the pre-indictment delay was less than a year and was

simply due to the pending investigation. The record indicates that the delay was not

used to gain a tactical advantage or due to any negligence or error on the part of the

investigating officers. See State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45

N.E.3d 127, ¶ 98.      During the investigation, the officers and detectives compiled

evidence, sent evidence to BCI for testing, and located and interviewed witnesses. The

record indicates that Morgan’s gun, a key piece of evidence linking Morgan to C.R.’s

assault, was not discovered until he was pulled over in a traffic stop several months later

in November 2015. Since the firearm expert needed test-fired shell casings and bullets

from that gun in order to conduct his analysis, the earliest the firearm expert could have

begun his testing was November 2015, and the record indicates that the firearm expert’s

testing was completed on March 4, 2016. In addition, the Y-STR DNA testing in D.C.’s

case could not be performed until a buccal swab was obtained from Morgan after he was

placed in custody. Even then, once the buccal swab was obtained, the Y-STR DNA

testing was not completed until January 8, 2016. Furthermore, D.C., a known transient,

could not be located for an interview with Detective Fent until March 2, 2016. Therefore,
                                                                                         -39-


Morgan not only failed to establish actual prejudice flowing from the pre-indictment delay,

but the record indicates that the pre-indictment delay was justifiable in that it was simply

a result of the pending investigation.

       {¶ 94} For the foregoing reasons, Morgan’s Third Assignment of Error is overruled.



                              Fourth Assignment of Error

       {¶ 95} Under his fourth assignment of error, Morgan contends that the trial court

erred in granting a trial continuance so that the State could locate D.C. We once again

disagree with Morgan’s claim.

       {¶ 96} “The trial court has broad discretion to grant or deny a motion for a

continuance.” State v. Danon, 2018-Ohio-419, 105 N.E.3d 596, ¶ 28 (2d Dist.), citing

State v. Bones, 2d Dist. Montgomery No. 26017, 2015-Ohio-784, ¶ 61. Therefore, an

appellate court must not reverse a trial court’s decision on a motion for continuance

absent an abuse of discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078

(1981). “A trial court abuses its discretion when it makes a decision that is unreasonable,

unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio St.3d

343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “It is to be expected that most instances of

abuse of discretion will result in decisions that are simply unreasonable, rather than

decisions that are unconscionable or arbitrary.”       AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). “A decision is unreasonable if there is no sound reasoning process that would

support that decision.” Id.

       {¶ 97} Whether the trial court abused its discretion by granting or denying a
                                                                                          -40-


requested continuance depends upon the reasons offered for the requested continuance.

State v. Blair, 171 Ohio App.3d 702, 2007-Ohio-2417, 872 N.E.2d 986, ¶ 11 (2d Dist.).

In exercising its discretion to grant or deny a motion for continuance, a trial court should

consider “ ‘the length of the delay requested; whether other continuances have been

requested and received; the inconvenience to litigants, witnesses, opposing counsel and

the court; whether the requested delay is for legitimate reasons or whether it is dilatory,

purposeful, or contrived; whether the defendant contributed to the circumstance which

[gave] rise to the request for a continuance; and other relevant factors, depending on the

unique facts of each case.’ ” State v. Bocock, 2d Dist. Montgomery No. 22481, 2008-

Ohio-5641, ¶ 23, quoting State v. Maxwell, 2d Dist. Montgomery No. 13966, 1993 WL

393835, *7 (Oct. 7, 1993). “It is within the trial court’s discretion to decide which of the

above factors is to be given the most weight.” (Citation omitted.) State v. Parker, 2d

Dist. Montgomery No. 18926, 2002-Ohio-3920, ¶ 16.

       {¶ 98} In this case, trial was originally scheduled for July 24, 2018.          D.C.,

however, did not appear. The day before trial, the State offered to dismiss the rape,

kidnapping, and felonious assault charges related to D.C. if Morgan agreed to plead guilty

to the rape and kidnapping charges related to C.R. Morgan, however, declined the

State’s plea offer and insisted on going to trial. As a result, the State moved the trial

court for a continuance on the day of trial so that D.C. could be located. In doing so, the

State advised the trial court that, for the past month, it had attempted to contact and serve

D.C. with a subpoena, but was ultimately unsuccessful due to her transient nature. The

Stated also advised the trial court that it had requested location assistance from the

Springfield Police Intelligence Unit and the Sherriff’s Office. The State further indicated
                                                                                          -41-


that an officer had provided it with information about D.C.’s location, but that service on

D.C. was unsuccessful at that address. The record indicates that the State also attempted

to contact D.C. by phone, which proved unsuccessful. The State, nevertheless, advised

the trial court that D.C. had recently been sighted and that officers were currently looking

for her.

       {¶ 99} Although taking into consideration the last-minute nature of the State’s

request for a continuance, the trial court granted the State a short, three-week trial

continuance. Given D.C.’s transient nature, the State’s earnest attempts to locate D.C.,

and Morgan’s decision to move forward with trial, we do not find that the trial court’s

decision to grant a continuance was unreasonable. The length of the continuance was

short so as to minimize the inconvenience to the litigants, the trial witnesses, and counsel.

In addition, the continuance was requested for a legitimate reason, as the State made

earnest attempts to locate D.C. well before the trial date and could be faulted for her

transient nature. Therefore, we do not find that the trial court’s decision to grant the trial

continuance was an abuse of discretion.



                                           Conclusion

       {¶ 100} Having overruled all four assignments of error raised by Morgan, the

judgment of the trial court is affirmed.

                                      .............

HALL, J. and TUCKER, J., concur.
                          -42-



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John M. Lintz
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