[Cite as State v. Kappenhagen, 2014-Ohio-3916.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100798



                                     STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                         MICHAEL J. KAPPENHAGEN
                                                        DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-12-567907-A

        BEFORE:          McCormack, J., Blackmon, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 11, 2014
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Bldg., Suite 940
526 Superior Ave.
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Steven N. Szelagiewicz
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

      {¶1} Defendant-appellant, Michael J. Kappenhagen, appeals his conviction for

kidnapping with firearm specifications, tampering with evidence with a firearm

specification, and having weapons while under disability. Kappenhagen also appeals his

consecutive sentence of 19 years. After a thorough review of the record, we affirm.

                                   Procedural History

      {¶2} Kappenhagen was indicted on a multiple-count indictment as follows:

Count 1, aggravated burglary in violation of R.C. 2911.11(A)(2); Count 2, felonious

assault of Cornell Stevenson in violation of R.C. 2903.11(A)(2); Count 3, kidnapping of

Robin Johnson in violation of R.C. 2905.01(A)(3); Count 4, felonious assault of Robin

Johnson in violation of R.C. 2903.11(A)(2); Count 5, aggravated menacing of Patrolman

Neil T. Pesta in violation of R.C. 2903.21(A); Count 6, kidnapping of minor child, M.J.,

in violation of R.C. 2905.01(A)(1); Count 7, kidnapping of minor child, C.S., in violation

of   R.C. 2905.01(A)(1);    Count 8,   tampering     with   evidence    in   violation   of

R.C. 2921.12(A)(1); and Count 9, having weapons while under disability in violation of

R.C. 2923.13(A)(2).

      {¶3} Counts 1-4, 6, and 7 contained the following specifications:           one-year

firearm specification in violation of R.C. 2941.141(A); three-year firearm specification in

violation of R.C. 2941.145(A); forfeiture of property under R.C. 2941.1417(A); notice of

prior conviction under R.C. 2929.13(F)(6); and repeat violent offender specification

(“RVO”) under R.C. 2941.149(A). The notice of prior conviction and the RVO were
bifurcated.   Counts 5 and 9 contained the forfeiture specification.             And Count 8

contained both firearm specifications as well as the forfeiture specification.

       {¶4} Kappenhagen was referred to the psychiatric clinic for competency and

sanity evaluations on November 26, 2012. The competency and sanity reports, which

were prepared on January 3, 2013, stated that Kappenhagen had no diagnosis, he was sane

at the time of the alleged acts, and he was competent to stand trial and assist in his own

defense. The parties stipulated to the contents in the reports.

       {¶5} Prior to trial, the state filed a motion to introduce evidence of other acts

under Evid.R. 404(B), regarding Kappenhagen’s possession of firearms, which the trial

court granted.

       {¶6} The defense stipulated to the following evidence: a certified notice of a

prior conviction of aggravated robbery with a one-year firearm specification (State’s

exhibit No. 1); the DNA laboratory examination report indicating Kappenhagen’s DNA

recovered from the weapons (State’s exhibit No. 2); and the police report indicating the

operability of the firearms (State’s exhibit No. 3).

       {¶7} A jury trial commenced on November 4, 2013. At the close of the state’s

case and again at the close of trial, defense counsel moved for a Crim.R. 29 judgment of

acquittal. The trial court denied both motions.

       {¶8} The jury returned a verdict of not guilty on Counts 1, 2, 4, 5, 6, and 7. The

jury returned a verdict of guilty on Counts 3, 8, and 9. In addition, the jury found

Kappenhagen guilty of the one-year and three-year firearm specifications and the
forfeiture specification on Count 3, as well as finding that the victim was released in a

safe place unharmed. The jury also found Kappenhagen guilty of the one-year firearm

and forfeiture specifications on Count 8. The trial court then found Kappenhagen guilty

of the RVO specification and notice of prior conviction. The court ordered a presentence

investigation report and scheduled the matter for sentencing.

         {¶9} On December 12, 2013, the trial court sentenced Kappenhagen to the

maximum eight years incarceration on Count 3, kidnapping of Robin Johnson, plus three

years for the firearm specification, merging the one-year and the three-year specifications.

 The trial court sentenced Kappenhagen to 36 months on Count 8, tampering with

evidence, and 36 months on Count 9, having weapons while under disability. Finally,

the court imposed an additional eight years on the RVO specification to Count 3. The

court ordered the sentence for Counts 3, 8, and 9 to run concurrently and the sentence for

the firearm specification and the RVO specification to be served consecutively to and

prior to the sentence in Count 3, the underlying charge, for an aggregate sentence of 19

years.

         {¶10} Kappenhagen filed this timely appeal.

                               Evidence Presented at Trial

         {¶11} The victim, Robin Johnson, testified that she met Kappenhagen in or about

April 2012. She testified that she went out with Kappenhagen approximately six times

before she moved into the upstairs of a home on Hosmer Avenue with her two minor

children, M.J. and C.S., in September.     Other than her two children, no one resided in
the home with her.     Kappenhagen visited Johnson approximately eight times at the

Hosmer Avenue home, sometimes just “popping over,” uninvited, and sometimes

spending the night. She stated that she considered Kappenhagen her friend and she never

considered him as a boyfriend.

      {¶12} Johnson testified that she ended the relationship with Kappenhagen on the

night of October 4, 2012, telling Kappenhagen that she needed her space and he needed to

find “somewhere else to go.” There was an argument, and Kappenhagen removed his

few belongings from the home and left.

      {¶13} Later that evening, Kappenhagen returned to Johnson’s home, where

Johnson was sitting in the kitchen with her sister, Tiesha Johnson (“Tiesha”). Tiesha

testified that she visited with her sister that night on Hosmer Avenue. She also testified

that Johnson lived there with her two children. Johnson and Tiesha both testified that

Johnson told Kappenhagen to leave and, in response, Kappenhagen pulled a handgun out

and pointed it at both of them, threatening to shoot them. Eventually, Kappenhagen

agreed to leave if Johnson promised not to call the police.        Kappenhagen left the

premises, and Johnson did not call the police. Johnson testified that she did not see

Kappenhagen again until the evening in question.

      {¶14} On October 10, 2012, Johnson saw Kappenhagen at a convenience store not

far from her house around 6:00 in the evening. He apologized for his previous behavior

and asked to spend the night at Johnson’s place.         Johnson testified that she told

Kappenhagen he could not come to the house and that she had nothing to say to him.
She also told Kappenhagen that the father of her baby, Cornell Stevenson, was waiting for

her at her place. She phoned her sister and asked her to give Kappenhagen a ride to the

west side. Johnson stated that her sister agreed to drive him because she was in the area

and headed in that direction. Johnson returned home.

      {¶15} Tiesha testified that later that evening, approximately 9:00 p.m.,

Kappenhagen showed up at her apartment and asked for a ride back to the east side. She

stated that Kappenhagen asked for a ride to Johnson’s house, informing her that he and

Johnson had made up. She agreed, and when she approached her sister’s house, she

attempted to reach her sister by telephone to no avail. When she arrived at her sister’s

home, she advised Kappenhagen to wait in the car while she went to the house to speak

with Johnson.    In speaking with Johnson, she learned that her sister did not want

Kappenhagen there. When Tiesha advised Kappenhagen that Johnson did not want him

back, he asked Tiesha to drop him off at a gas station on E. 71st Street and Harvard

Avenue. Tiesha testified that she dropped Kappenhagen off at approximately 10:00 p.m.

      {¶16} Johnson testified that after she returned home from the convenience store,

she and Stevenson had drinks, smoked marijuana, and had sexual intercourse. When

they were finished having sex, she went to the kitchen table to pour herself a shot, and

while taking the shot, Stevenson, who was naked, began to walk towards the bathroom.

She stated that, as she was taking her shot and Stevenson was walking towards the

bathroom, the door opened and Kappenhagen came through the door, holding a handgun
in his left hand and a rifle in his right hand. She testified that the handgun was the same

gun Kappenhagen pointed at her the week before.

       {¶17} Johnson stated that Kappenhagen forced Stevenson down the stairs and

eventually out of the house, while holding both weapons. As Kappenhagen yelled at

Stevenson to “get the f * * * out,” Johnson saw Kappenhagen pull the clip on one of the

guns and she assumed it was to show them that the gun was loaded. Kappenhagen

allowed Johnson to retrieve Stevenson’s clothes, and Kappenhagen threw them to

Stevenson as he waited on the stairs. While Kappenhagen was speaking with Stevenson,

Johnson ran to her bedroom and called 911 on her cell phone, whispering to the operator

because she did not want Kappenhagen, who was “not ten feet” away from her, to hear

her. After placing the call, Johnson kept the operator on the phone, and she placed her

phone in the waistband of her pants when Kappenhagen returned to the kitchen in an

attempt to conceal the phone from Kappenhagen.

       {¶18} Johnson testified that after Kappenhagen returned to her kitchen, he initially

stood in the doorway with the guns and then sat at the table, holding the guns while

expressing his feelings for her and his desire to be with her. According to Johnson, he

first said that he killed Stevenson and he then changed his story, telling her that he was

going to “shoot [Stevenson] in the head in front of [Johnson].”

       {¶19} Johnson testified that Kappenhagen sat at the table for approximately 15

minutes and that he was pointing a gun at her the entire time. She stated that during this

time, Kappenhagen said to her, “Oh, bitch, I told you I loved you and this is how you do
me?” She further stated that Kappenhagen was “really pissed, biting on his lips” and he

continued to tell her “how f * * *d up [she is]” for being with Stevenson. She testified

that she was “deathly afraid” and feared for her life and the lives of her children. She

believed that Kappenhagen wanted to kill her for choosing Stevenson over him, stating

that he had a “redness in his eyes,” and he was “enraged and upset” and “foaming [at the

mouth].” He also showed her that his gun was loaded, and she stated that she believed

“he planned on using it.”

      {¶20} Johnson asked Kappenhagen if they could go outside to check on Stevenson.

According to Johnson, Kappenhagen agreed to go outside only to shoot Stevenson so

that he need not worry about him anymore. On the way down the stairs, Kappenhagen

remained two or three steps behind Johnson, holding the two guns behind her and telling

her to go downstairs.

      {¶21} When they got outside the home, Johnson saw a police officer, who told

Kappenhagen to “put the guns down.” As she stood by the door, she heard a gunshot and

saw Kappenhagen run back inside the house. Johnson stated that she then ran to the side

of the house that was across from her house, where a police officer rushed her to a

waiting patrol car across the street. Kappenhagen then called Johnson on her cell phone.

Johnson told Kappenhagen to come out of the house, and he refused. She testified that

Kappenhagen said he thought the police would kill him and that perhaps he should put

one of the children over his head and another one over his chest when he came outside.
She was concerned for her children. Johnson later identified the pieces of the rifle that

Kappenhagen aimed at her, stating that the gun was not broken that evening.

       {¶22} Stevenson testified that, on the night in question, he had come to Johnson’s

house to celebrate his birthday. He said that he and Johnson had discussions that evening

about the possibility of the two of them getting back together. After putting the children

down to sleep, they had dinner around 9:00 p.m. and then engaged in sexual intercourse.

Stevenson stated that when they had finished having sex, he began to walk through the

kitchen, naked, in order to access the bathroom; however, before he could reach the

bathroom, the back door opened and he saw a man, whom he later identified as

Kappenhagen, pointing a rifle at his face and holding a smaller handgun at his side. He

testified that the door had been locked and there was no key in that door at any time

during his visit.

       {¶23} Stevenson further testified that while Kappenhagen was pointing the rifle at

him, he pointed the smaller gun as well. Kappenhagen repeatedly told Stevenson to

leave. Stevenson looked behind him at Johnson, wondering who Kappenhagen was and

what was happening. Kappenhagen eventually forced Stevenson out of the house, and

Stevenson knocked on the downstairs neighbor’s door, asking them to call the police.

Stevenson stated that he put his clothes on in the hallway landing and ran outside.

Stevenson went to the corner store and phoned the police himself. He learned that

officers had been dispatched to the house already. Stevenson later identified the rifle that
Kappenhagen had pointed at him, stating that the rifle was in one piece that evening in

October.

       {¶24} Officer Neil Pesta testified that he and his partner, Brian Kellums,

responded to a call from dispatch regarding a male with two guns on Hosmer Avenue.

They arrived at the Hosmer Avenue home approximately 12:30 a.m. on October 11, 2012,

and learned that it was a hostage situation. Officer Pesta testified that he saw a black

female, whom he believed to be the victim, come out of the house. He saw a white male

follow directly behind the female. The male, whom he identified as Kappenhagen, was

holding a long brown rifle in his left hand and a silver handgun in his right hand. Officer

Pesta testified that when he saw the two guns in Kappenhagen’s hands, he yelled for

Kappenhagen to show his hands and then saw Kappenhagen raise his left hand up with

the rifle, toward the officer’s direction. Officer Pesta fired one round at Kappenhagen,

and Kappenhagen ran back inside the house. The officer stated that he yelled for the

female to come towards him. He stated that she informed him that her children were

inside the home. Officer Pesta identified the guns that Kappenhagen possessed that

evening.    He further testified that the rifle appeared completely intact and fully

operational at the time of the incident.

       {¶25} Sergeant Edward Lentz, Sergeant Larry Hughes, and SWAT Officer Ariel

Rojas all reported to the scene.      They were advised that it was a hostage situation

because the suspect was in the house with the children. Sergeant Lentz testified that he

spoke with Kappenhagen when Kappenhagen called Johnson’s cell phone from the house.
 He stated that Kappenhagen told him that he knew he was in trouble and that he was

concerned about going to prison. All three of the officers testified that Kappenhagen

remained in the home for approximately an hour and a half during police presence,

eventually coming out of the house and turning himself in.

       {¶26} Sergeant Carl Hartman, an internal affairs investigator with the Cleveland

Police Department, testified that in the course of his investigation, he recovered two guns

that had been “shoved way down” inside a vent in the Hosmer Avenue home. He stated

that one of the weapons was a rifle that appeared to be broken or cut in half. He further

stated that it would not have been possible to put the entire rifle in the vent in one piece

and that he and the other officers had to tear out the duct work in the basement in order to

retrieve the rifle.

       {¶27} Michael Gibbs, a detective in the Crime Scene Unit, identified the

photographs he took of the crime scene, which included photos of a damaged rifle and a

handgun that was wrapped in a blanket. He testified that the rifle was discovered in

several pieces. Detective Gibbs swabbed the weapons for DNA. The DNA report, to

which the defense stipulated, revealed Kappenhagen’s DNA on the recovered weapons.

       {¶28} After the state rested, Kappenhagen testified on his own behalf.            He

testified that he lived with Johnson at the Hosmer Avenue home and he paid for some of

the living expenses. He stated that he kept the guns in the attic; however, when he heard

arguing in the home, he retrieved the guns, fearing for the safety of the people in the

home. Kappenhagen denied pointing the guns at Stevenson or Johnson. He admitted,
however, to “rais[ing] the gun up” and telling Stevenson to leave. Kappenhagen stated

that after Stevenson left, he had a conversation with Johnson upstairs, though he denied

threatening her that evening. Finally, he testified that he “shoved” the guns down a vent

because he “didn’t want to do a lot of time,” and in the process, “the butt broke off.”

                                  Assignments of Error

       I. The trial court erred in denying appellant’s motion for acquittal as to the
       charges when the state failed to present sufficient evidence to sustain a
       conviction.

       II. Appellant’s convictions are against the manifest weight of the evidence.

       III.   The trial court erred by ordering appellant to serve a consecutive

       sentence without making the appropriate findings required by R.C. 2929.14

       and H.B. 86.

                               Sufficiency of the Evidence

       {¶29} In his first assignment of error, Kappenhagen contends that the state failed

to present sufficient evidence to sustain a conviction for the kidnapping of Robin Johnson

with the use of a firearm and tampering with the evidence.

       {¶30} When assessing a challenge of sufficiency of the evidence, a reviewing

court examines the evidence admitted at trial and determines whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. A reviewing court is not

to assess “whether the state’s evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio

St.3d 380, 390, 678 N.E.2d 541 (1997).

       {¶31} The jury found Kappenhagen guilty of kidnapping Robin Johnson in

violation of R.C. 2905.01(A)(3). That section provides that “[n]o person, by force,

threat, or deception * * * shall remove another from the place where the other person is

found or restrain the liberty of the other person * * * in order [t]o terrorize, or to inflict

serious physical harm on the victim or another.” Id.

       {¶32} This court has previously defined “‘restrain the liberty of the other person’”

as “‘limit[ing] one’s freedom of movement in any fashion for any period of time.’” State

v. Woodson, 8th Dist. Cuyahoga No. 95852, 2011-Ohio-2796, ¶ 13, quoting State v.

Wingfield, 8th Dist. Cuyahoga No. 69229, 1996 Ohio App. LEXIS 867, * 6 (Mar. 7,

1996); see also State v. Walker, 9th Dist. Medina No. 2750-M, 1998 Ohio App. LEXIS

4067, * 5 (Sept. 2, 1998) (restraint       of liberty involves placing the victim in the

offender’s power and beyond immediate help, even though temporarily, and does not

require prolonged detainment).

       {¶33} Regarding additional elements of kidnapping under R.C. 2905.01(A)(3), this

court has previously held that “terrorize” is a common word and means “to fill with terror

or anxiety.” State v. McDougler, 8th Dist. Cuyahoga No. 86152, 2006-Ohio-100, ¶ 16.

Additionally, the offense of kidnapping does not require that the offender actually cause
any injury to the victim.       See State v. Lavelle, 5th Dist. Stark No. 07 CA 130,

2008-Ohio-3119.

       {¶34} The jury also found Kappenhagen guilty of the one-year and three-year

firearm specifications. Under R.C. 2941.141(A), the sentencing court must impose a

one-year mandatory prison term upon the offender “if the offender had a firearm on or

about the offender’s person or under the offender’s control while committing the

offense.”   R.C. 2941.145(A) provides for a mandatory three-year prison term if the

offender had a firearm on his person or under his control while committing the offense

“and displayed the firearm, brandished the firearm, indicated that [he] possessed the

firearm, or used it to facilitate the offense.”

       {¶35} Here, viewing the evidence in a light most favorable to the state, we find

that the state provided sufficient evidence of kidnapping with the accompanying firearm

specifications. First, Johnson testified that Kappenhagen initially stood in the doorway

holding two guns and then pointed a gun at her for at least 15 minutes while he sat at her

kitchen table and berated her. During this time, Kappenhagen was enraged and appeared

to be “foaming [at the mouth],” expressing anger towards Johnson for the way he

believed Johnson treated him. Any jury could have found, under these circumstances,

that Kappenhagen restrained Johnson’s liberty.

       {¶36} Second, a reasonable jury could have found that Kappenhagen’s actions

demonstrated an intent to terrorize or cause physical harm.        Johnson testified that

Kappenhagen initially told her that he killed Stevenson but later told her that he was
going to kill Stevenson in front of her, “shoot[ing] him in the head,” so that he would not

have to worry about Stevenson anymore. She stated that he showed her the gun was

loaded and she believed Kappenhagen wanted to kill her for choosing another man. We

therefore conclude that the above evidence, if believed, would convince the average mind

of Kappenhagen’s guilt of kidnapping beyond a reasonable doubt.

      {¶37} We also find that this evidence was sufficient to show that Kappenhagen

had on his person, or within his control, two firearms. Additionally, the evidence, if

believed, was sufficient to demonstrate that Kappenhagen used a firearm to facilitate the

kidnapping of Robin Johnson.

      {¶38} Finally, the jury found Kappenhagen guilty of tampering with evidence. R.

C. 2921.12(A)(1) provides as follows:

      No person, knowing that an official proceeding or investigation is in

      progress, or is about to be or likely to be instituted, shall * * * [a]lter,

      destroy, conceal, or remove any record, document, or thing, with purpose to

      impair its value or availability as evidence in such proceeding or

      investigation.

      {¶39} We find that the evidence presented at trial is sufficient to show that

Kappenhagen tampered with evidence. Sergeant Hartman testified that he recovered two

guns that had been “shoved way down” inside a vent in the Hosmer Avenue home and

that one of the weapons was a rifle that appeared to be broken or cut in half. He further

testified that it would not have been possible to put the entire rifle in the vent in one
piece. Detective Gibbs testified that the rifle was discovered in several pieces. Both

Johnson and Stevenson identified the rifle as the gun Kappenhagen pointed at them, and

they testified that the rifle was in one piece when they last saw it. Sergeant Lentz

testified that Kappenhagen told him that he knew he was in trouble and that he was

concerned about going to prison, and Kappenhagen admitted that he “shoved” the guns

down a vent because he “didn’t want to do a lot of time.” This evidence, if believed, was

sufficient to show that Kappenhagen attempted to alter, destroy, or conceal his two

weapons in order to prevent the use of the weapons as evidence against him.

         {¶40} Viewing the above evidence in a light most favorable to the prosecution, we

find that any rational trier of fact could find the essential elements of kidnapping with the

accompanying firearm specifications and tampering with evidence beyond a reasonable

doubt.

         {¶41} Kappenhagen’s first assignment of error is overruled.

                             Manifest Weight of the Evidence

         {¶42} In his second assignment of error, Kappenhagen contends that his

convictions are against the manifest weight of the evidence.

         {¶43} While the test for sufficiency of the evidence requires a determination

whether the state has met its burden of production at trial, a manifest weight challenge

questions whether the state has met its burden of persuasion. Thompkins, 78 Ohio St.3d

at 390, 678 N.E.2d 541. Also unlike a challenge to the sufficiency of the evidence, a

manifest weight challenge raises a factual issue.
       “The court, reviewing the entire record, weighs the evidence and all
       reasonable inferences, considers the credibility of witnesses and determines
       whether in resolving conflicts in the evidence, the jury clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must
       be reversed and a new trial ordered. The discretionary power to grant a new
       trial should be exercised only in the exceptional case in which the evidence
       weighs heavily against the conviction.”

Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶44} “[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), paragraph one of the syllabus. When examining witness credibility, “the

choice between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that of the

finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). A

factfinder is free to believe all, some, or none of the testimony of each witness appearing

before it. State v. Ellis, 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18.

       {¶45} Kappenhagen argues that there is no evidence he knowingly committed any

crime against Johnson or that he intended to cause any harm. We disagree.

       {¶46} As previously stated, kidnapping in violation of R.C. 2905.01(A)(3)

prohibits any person, by force, threat, or deception, from restraining the liberty of another

in order to terrorize or inflict serious physical harm on another.        At trial, Johnson

testified that Kappenhagen held a gun in one hand and pointed a second gun at her for at

least 15 minutes while he sat at her kitchen table and berated her. She also testified that
he was enraged and appeared to be “foaming [at the mouth],” expressing anger towards

Johnson for the way he believed Johnson treated him, and she was “deathly afraid” and

feared for her life and the lives of her children. Johnson further testified that during this

time, Kappenhagen told her that he killed Stevenson, only later changing his story to say

that he was going to “shoot [Stevenson] in the head in front of [her].” Finally, Johnson

testified that Kappenhagen showed her that the gun was loaded and she believed he

wanted to kill her for choosing Stevenson over him.

       {¶47} The state also presented the testimony of several police officers on the

scene. Sergeant Lentz testified that Kappenhagen told him that he knew he was in

trouble and that he was concerned about going to prison.            Sergeant Hartman and

Detective Gibbs testified that a rifle was discovered in several pieces in a vent inside the

home. Sergeant Hartman stated that it would have been impossible to put the entire rifle

in the vent in one piece. Both Johnson and Stevenson identified the recovered rifle as

the gun Kappenhagen pointed at them, and they testified that the rifle was in one piece

when Kappenhagen pointed it at them.         Furthermore, Kappenhagen admitted that he

“shoved” the guns down a vent because he “didn’t want to do a lot of time.” He

testified, however, that he did not threaten Johnson.

       {¶48} Based upon the record, we are unable to conclude that this is the exceptional

case in which the evidence weighs heavily against the conviction. The state presented

evidence that Kappenhagen restrained Johnson’s liberty with the purpose of terrorizing or

inflicting serious physical harm and that he attempted to conceal or destroy evidence that
may have been used against him. While Kappenhagen testified at trial that he did not

threaten Johnson, the jury found the victim’s testimony credible. As such, we cannot say

that the jury clearly lost its way, thus creating such a manifest miscarriage of justice that

the conviction must be reversed.

       {¶49} Kappenhagen’s second assignment of error is overruled.

                                       Consecutive Sentence

       {¶50} In his third assignment of error, Kappenhagen claims that the trial court did

not make the appropriate consecutive sentence findings. In support of his argument,

Kappenhagen “acknowledge[s] that the trial court made findings,” yet he states that he

includes this assignment of error “to preserve any future potential appellate and/or other

remedies.”

       {¶51} Here, Kappenhagen was convicted of three of the nine counts contained in

the indictment:        Count 3, kidnapping (and both one-year and three-year firearm

specifications); Count 8, tampering with evidence (and one-year firearm specification);

and Count 9, having weapons while under disability. The trial court sentenced him to

eight years on the kidnapping, 36 months on the tampering charge, and 36 months on the

weapons charge, ordering the sentences to be run concurrently. The court, however,

sentenced Kappenhagen to an additional eight years for the repeat violent offender

specification and three years for the firearm specification, ordering these sentences to be

served consecutively to each other and consecutive to the base charge on Count 3.1


           The court merged the one-year and three-year firearm specifications contained in Count 3.
       1
       {¶52} Generally speaking, where multiple prison terms are imposed on an offender

for convictions of multiple offenses, R.C. 2929.14(C)(4) provides that the court may

require the offender to serve the prison terms consecutively if the court makes findings

that “the consecutive service is necessary to protect the public from future crime or to

punish the offender and that consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public,”

and one of the factors enumerated in R.C. 2929.14(C)(4)(a)-(c) is present, including the

offender’s history of criminal conduct.

       {¶53} Where a defendant is convicted of, or pleads guilty to, a repeat violent

offender specification, under R.C. 2929.14(B)(2)(a), the trial court may impose an

additional definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten

years for the repeat violent offender specification, if all of the following criteria are met:

       (i) The offender is convicted of or pleads guilty to a specification of the
       type described in section 2941.149 of the Revised Code that the offender is
       a repeat violent offender.

       (ii) The offense of which the offender currently is convicted or to which the
       offender currently pleads guilty is * * * any felony of the second degree that
       is an offense of violence and the trier of fact finds that the offense involved
       an attempt to cause or a threat to cause serious physical harm to a person or
       resulted in serious physical harm to a person.

       (iii) The court imposes the longest prison term for the offense that is not life
       imprisonment without parole.

       (iv) The court finds that the prison terms imposed * * * are inadequate to
       punish the offender and protect the public from future crime, because the
       applicable factors under section 2929.12 of the Revised Code indicating a
       greater likelihood of recidivism outweigh the applicable factors under that
       section indicating a lesser likelihood of recidivism.
      (v) The court finds that the prison terms imposed * * * are demeaning to the

      seriousness of the offense, because one or more of the factors under section

      2929.12 of the Revised Code indicating that the offender’s conduct is more

      serious than conduct normally constituting the offense are present, and they

      outweigh the applicable factors under that section indicating that the

      offender’s conduct is less serious than conduct normally constituting the

      offense.

      {¶54} The statute mandates that when imposing a sentence under this section, the

sentencing court must state its findings, explaining the imposed sentence.           R.C.

2929.14(B)(2)(e).   The statute further mandates that the offender shall serve the

additional prison sentence imposed under this section consecutively to and prior to the

prison term imposed for the underlying offense. R.C. 2929.14(B)(2)(d).

      {¶55} With respect to the imposition of consecutive sentences for mandatory

prison terms associated with firearms specifications, R.C. 2929.14(C)(1) provides as

follows:

             Subject to division (C)(1)(b) of this section, if a mandatory prison

      term is imposed upon an offender pursuant to division (B)(1)(a) of this

      section for having a firearm on or about the offender’s person or under the

      offender’s control while committing a felony, if a mandatory prison term is

      imposed upon an offender pursuant to division (B)(1)(c) of this section for

      committing a felony specified in that division by discharging a firearm from
        a motor vehicle, or if both types of mandatory prison terms are imposed, the

        offender shall serve any mandatory prison term imposed under either

        division consecutively to any other mandatory prison term imposed under

        either division or under division (B)(1)(d) of this section, consecutively to

        and prior to any prison term imposed for the underlying felony pursuant to

        division (A), (B)(2), or (B)(3) of this section or any other section of the

        Revised Code, and consecutively to any other prison term or mandatory

        prison term previously or subsequently imposed upon the offender.

R.C. 2929.14(C)(1)(a); State v. Parker, 8th Dist. Cuyahoga No. 98272, 2013-Ohio-2898,

¶ 11.      As such, the mandatory three-year firearm specification must be served

consecutively to and prior to any prison term imposed for the underlying felony. Id.

        {¶56} Here, Kappenhagen was convicted of kidnapping (where the victim was

released in a safe place unharmed), a second-degree felony that is an offense of violence,

and its accompanying repeat violent offender specification. At sentencing, the trial court

sentenced Kappenhagen to the maximum term of imprisonment on the kidnapping charge.

 See R.C. 2929.14(A)(2)(stating the maximum sentence for a single, second-degree

felony is eight years incarceration).            Thus, the criteria outlined in R.C.

2929.14(B)(2)(a)(i), (ii), and (iii) have been met.

        {¶57} Additionally, the trial court made the findings necessitated by

R.C. 2929.14(B)(2)(a)(iv) and (v). In doing so, the court stated as follows:

        [T]his all indicates to the court that a severe sentence is necessary, that a
        single sentence would not adequately protect our community, nor punish
       this defendant, and that the following sentence I’m going to impose is not
       disproportionate and I’m going to find that the harm is so great or unusual
       that a single term would not adequately reflect the seriousness of his
       conduct and that his criminal history shows that consecutive terms are
       needed to protect the public.

       And for all the previously stated reasons, I am going to impose consecutive

       [sentences] based on the repeat violent offender specifications that the court

       found that he is a repeat violent offender and that the only way to protect

       our community is to separate him from the community.

       {¶58} Prior to making its findings, the court stated that it considered the

defendant’s statement to the court, the presentence investigation report, the statutory

requirements, the principles and purposes of felony sentencing, and the appropriate

recidivism and seriousness factors.      The court also considered the sanity evaluation

prepared in January 2013. Based upon his review of the report, the court observed that

Kappenhagen “has issues with authority,” he’s a violent person, using his intelligence and

violence to victimize others, and he “does things his own way,” despite the reality of the

situation. The court noted that the evaluation failed to diagnose Kappenhagen with any

“real mental health” issues and that Kappenhagen “basically lied in prison about

depression and suicidal thoughts” in order to get drugs in prison. The court concluded

that Kappenhagen had, once again, manipulated the system, and his behavior exemplifies

“a pernicious cycle of this defendant’s total disregard for society rules.”

       {¶59} The trial court then considered Kappenhagen’s extensive criminal history,

which included the following: assault and stealing as a juvenile in 1999; unauthorized
use of a motor vehicle in 2001; aggravated robbery with a firearm specification in 2003;

assault of an institutional guard, harassment, and obstructing official business; attempted

receiving stolen property of a motor vehicle and failure to comply with the order of a

police officer in 2007; receiving stolen property in 2009, immediately upon being

released from prison; drug possession; obstructing official business and contempt of court

in 2011; receiving stolen property in 2011; and misuse of credit cards and receiving stolen

property in 2012. The court noted that Kappenhagen previously violated his community

control three times and all of the past efforts to rehabilitate Kappenhagen and control his

anger have failed.

       {¶60} In light of the above, we find the trial court properly imposed a consecutive

sentence. The court satisfied all of the repeat violent offender criteria mandated by

statute and stated its findings accordingly. As a result, the statute mandated that the

additional prison sentence imposed under R.C. 2929.14(B)(2)(a) be imposed

consecutively to and prior to the prison term imposed for the underlying offense. In

addition, the court was statutorily mandated to impose the sentence for the firearm

specification consecutively to and prior to any prison term imposed for the underlying

felony. See R.C. 2929.14(C)(1)(a).

       {¶61} Kappenhagen’s third assignment of error is overruled.

       {¶62} Judgment affirmed.

       It is ordered that appellee recover of appellant 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 common

pleas court 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.


______________________________________________
TIM McCORMACK, JUDGE

PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR
