[Cite as State v. Triplett, 2013-Ohio-3114.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. 2012CA00200
JAMIE TRIPLETT, JR.                             :
                                                :
                      Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Stark County
                                                    Court of Common Pleas, Case No. 2012-
                                                    CR-0622


JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             July 15, 2013


APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO
BY:KATHLEEN TATARSKY                                ANTHONY KAPLANIS
110 Central Plaza South, Ste. 510                   701 Courtyard Centre
Canton, OH 44702-1413                               116 Cleveland Avenue N.W.
                                                    Canton, OH 44702
[Cite as State v. Triplett, 2013-Ohio-3114.]


Gwin, P.J.

        {¶1}     Defendant-appellant Jamie Triplett, Jr. [“Triplett”] appeals his convictions

and sentences entered by the Stark County Court of Common Pleas on one count of

rape, one count of kidnapping and one count of assault. Plaintiff-appellee is the State of

Ohio.

                                           Facts and Procedural History

        {¶2}     On Monday, March 19, 2012 around 12:00 pm, Amanda Tolley, saw a car

pull up to the home of Patricia Eddy in Canton, Ohio. Triplett drove the car and in the

passenger seat was A.K. Tolley saw having a conversation with Triplett, get out of the

car, walk through the gates and enter the Eddy home.

        {¶3}     Once inside, A.K. fell to the ground in the middle of the floor crying

hysterically and could hardly talk. A.K. was covered in bruises. She had marks on her

elbow, a bruise on one of her arms and side of her face. In addition, A.K.’s ear was

black and blue, she had a gash on her forehead and her legs were scraped. A.K. told

her friends, Tolley and Eddy, that Triplett beat her up, raped her, kept her in the house

and would not let her leave. She tried to use her cell phone, but Triplett took the battery

out. A.K. was afraid to call the police, but did call her parents.

        {¶4}     A.K. was taken to Aultman Hospital. She was first seen by a doctor.

Kimberly Heffner, a registered nurse trained as a sexual assault nurse examiner

[“S.A.N.E.”] was the next to see A.K. A.K. disclosed that Triplett grabbed her while she

was walking on the street, ripped her shirt and necklace, took her to his dad's work,

grabbed her by the hair and threatened to kill her. A.K. told Heffner that Triplett hit her in
Stark County, Case No. 2012CA00200                                                       3


the head, choked her, punched her in the face and threatened her and her family. The

next day, he apologized for attacking her and then forced her to have vaginal sex.

        {¶5}   Heffner examined A.K. further. Heffner observed a "lot of injury" and a "lot

of bruises."' A.K. observed bruises on the neck that looked like they were caused by

choking, marks under the forehead and both eyes, bruising on the cartilage of an ear,

bruising on the left side of the face and jaw, bruising on the arms, elbows, hand and

legs, marks on her stomach, back, shoulders and a big red mark on the back of her

head.

        {¶6}   Heffner took samples of A.K.'s fingernail clippings, blood, saliva,

specimens from her vagina, the inside of both cheeks, a strand of head hair and pubic

hair and developed a sexual assault kit. The kit was given to the Canton Police

Department who turned it over to Kylie Graham of the Stark County Crime Laboratory.

        {¶7}   Graham examined the contents of A.K.'s sexual assault kit including the

fluid taken from the vaginal area, semen, blood and saliva. She found the presence of

seminal fluid on the vaginal swabs. Graham then compared the sperm found in the

sexual assault kit with Triplett's DNA standard. Graham found that the source of the

semen in A.K.'s sexual assault kit was Triplett.

        {¶8}   A.K., five feet one and weighing 110 pounds, testified to the events that

started on the evening of March 16, 2012. A.K. testified that she and Triplett went to the

home of Steven Moreland and Crystal Franklin to play cards and drink. A.K. went

outside to take a phone call regarding her daughter and Triplett came out angry. A.K.

started walking down the street to the gas station to call her parents and Triplett came

after her, calling her names and ripped her shirt. During the fight, Triplett's gold chain
Stark County, Case No. 2012CA00200                                                          4


necklace was broken and Triplett blamed A.K., saying he was going to kill her if she did

not pay him for it. Triplett told her to get in the car and he took her to his father’s semi

truck shop. There, he hit her with a long stick, dragged her across the lot and chained

her to a truck bumper.

       {¶9}   Triplett drove around the city with A.K. in the passenger seat trying to find

his chain. When she tried to jump out, he grabbed her by the throat. A.K. remembered

stopping at the house of a friend of Triplett’s named Jack. Triplett went inside while A.K.

remained outside the fence in the car. Instead of running away or to a neighbor to call

for help, A.K. ran inside the fence. A.K. asked to use the phone, but Jack refused and

pushed her out of his yard. Triplett drove to a Speedway station and finally after several

hours drove to his home. Triplett told her he was going to hold her hostage until he got

the money for the chain.

       {¶10} The next morning, Triplett held A.K. down by her arms and had sexual

intercourse with her telling her “whether you like it or not, I'm taking it.” He held her arms

down and covered her mouth because A.K. was screaming and telling him no. Triplett

kept her in the house Saturday and Sunday. Sunday morning, he took her upstairs and

raped her again.

       {¶11} The next morning, Monday, Triplett apologized and said he did not

remember a "lot of things" He asked her not to "turn him in or go to the police about it."

A.K. assured him she would not "tell on him" and asked to take a shower.

       {¶12} A.K. was dropped off at Eddy's house and promised to call him later.

Triplett returned her cell phone without a battery.
Stark County, Case No. 2012CA00200                                                     5


      {¶13} Triplett was arrested about a month after the attack on A.K. and housed in

the Stark County Jail awaiting trial. He was placed in the general dormitory area with

George Swogger, a self described "low level" criminal." Triplett freely talked about his

case and told Swogger that he got into an argument with A.K. when she ripped his

chain off. He got in the car - a Camaro - forced A.K. into the car and "then took her to

different locations around the city and beat her up." He bragged about taking her to his

father's place and chaining her to a bumper. When he took her to his home, he made

her have sex with him.

      {¶14} Steven Moreland and Crystal Franklin both testified that A.K. willingly got

into Triplett’s car and refused their offer for a ride. Both Steve and Crystal indicated

they saw her the next day with Triplett at his father’s company. They both said nothing

seemed wrong and in fact, Crystal testified while Triplett was inside A.K. was texting on

her phone.

      {¶15} Evidence was presented that surveillance video taken while A.K. and

Triplett were at the Speedway station showed Triplett get out of the car. The video also

showed a vehicle next to their car in the parking lot. The video did not give any

indication of something being wrong, such as calls for help.

      {¶16} Robert Blymiller testified that A.K. and Triplett came to his house and

nothing seemed wrong. Blymiller and Triplett left the home to go to the store, while A.K.

remained behind with Blymiller’s wife.

      {¶17} The Stark County Grand Jury indicted Triplett on one count of rape, a

violation of R.C. 2907.02(A)(2) [F1], two counts of kidnapping, a violation of R.C.

2905.01(A)(3) [F1] and one count of felonious assault, a violation of R.C. 2903.11(A)(1)
Stark County, Case No. 2012CA00200                                                        6


and/or (A)(2) [F2]. The two counts of kidnapping contained a sexual motivation

specification, R.C. 2941.147.

       {¶18} After hearing the evidence and receiving instructions from the trial court,

the jury returned a mixed verdict as follows: Guilty of counts one and two, rape and

kidnapping but not guilty of the sexual motivation specification; not guilty of count three,

kidnapping; not guilty of felonious assault but guilty of assault.

       {¶19} Triplett returned to the trial court for sentencing on September 24, 2012.

The state argued that the rape and kidnapping should not merge and the trial court

agreed. Triplett was sentenced to ten years on the kidnapping conviction, ten years on

the rape conviction and 180 days on the assault conviction for an aggregated prison

term of twenty years.

                                       Assignments of Error

       {¶20} Triplett raises three assignments of error,

       {¶21} “I. THE TRIAL COURT ERRED IN PERMITTING HEARSAY TESTIMONY

UNDER THE EXCITED UTTERANCE EXCEPTION.

       {¶22} “II. THE TRIAL COURT'S FINDING OF GUILTY OF KIDNAPPING, RAPE

AND ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND

WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

       {¶23} “III. THE TRIAL COURT ERRED BY FAILING TO MERGE APPELLANT'S

CONVICTIONS AND SENTENCES FOR KIDNAPPING AND RAPE WHEN THE

CONVICTIONS RESULTED FORM THE SAME TRANSACTION.”
Stark County, Case No. 2012CA00200                                                     7


                                               I.

      {¶24} In his first assignment of error, Triplett contends that A.K.’s statements to

Tolley and Eddy made three days after A.K. claimed she was kidnapped should not

have been admitted at trial as excited utterances.

      {¶25} “Hearsay” is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid.R. 801(C). Hearsay is generally not admissible unless it falls within one

of the recognized exceptions. Evid.R. 802; State v. Steffen, 31 Ohio St.3d 111, 119, 509

N.E.2d 383(1987).

             The hearsay rule ... is premised on the theory that out-of-court

      statements are subject to particular hazards. The declarant might be lying;

      he might have misperceived the events which he relates; he might have

      faulty memory; his words might be misunderstood or taken out of context

      by the listener. And the ways in which these dangers are minimized for in-

      court statements-the oath, the witness' awareness of the gravity of the

      proceedings, the jury's ability to observe the witness' demeanor, and, most

      importantly, the right of the opponent to cross-examine-are generally

      absent for things said out of court.

Williamson v. United States, 512 U.S. 594, 598,114 S.Ct. 2431, 129 L.Ed.2d 476(1994).

      {¶26} An excited utterance is one in which the declarant was under the

excitement of a startling event and, therefore, the statement was not the product of

reflection. State v. Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316, 320(1993). For an

alleged excited utterance to be admissible, four prerequisites must be satisfied: (1) an
Stark County, Case No. 2012CA00200                                                       8


event startling enough to produce a nervous excitement in the declarant, (2) the

statement must have been made while still under the stress of excitement caused by

the event, (3) the statement must relate to the startling event, and (4) the declarant must

have personally observed the startling event. Potter v. Baker, 162 Ohio St. 488, 124

N.E.2d 140 (1955), paragraph two of the syllabus, followed and approved in State v.

Taylor, 66 Ohio St.3d 295, 612 N.E. 2d 316 (1993), fn. 2; State v. Duncan, 53 Ohio

St.2d 215, 373 N.E.2d 1234(1978). In Duncan, the Ohio Supreme Court emphasized, “ *

* * an appellate court should allow wide discretion in the trial court to determine whether

in fact a declarant was at the time of an offered statement still under the influence of an

exciting event.” Id. at 219.

       {¶27} “There is no per se amount of time between the [occurrence and the

statement] after which a statement can no longer be considered to be an excited

utterance. The central requirements are that the statement must be made while the

declarant is still under the stress of the event and the statement may not be a result of

reflective thought. Therefore the passage of time between the statement and the event

is relevant but not dispositive of the question.” Taylor at 303, 612 N.E.2d at 322. The

fact the statements were not contemporaneous with the incident does not take it out of

the excited utterance exception. State v. Baker, 137 Ohio App.3d 628, 739 N.E.2d

819(12th Dist. 2000), quoting Warfield v. Greater Cleveland Regional Transit Auth. (July

7, 1988), 8th Dist. No. 54023, 1988 WL 87653.

       {¶28} The admission of a declaration as an excited utterance is not precluded by

questioning which is neither coercive nor leading, which facilitates the declarant's

expression of what is already the natural focus of the declarant's thoughts, and does not
Stark County, Case No. 2012CA00200                                                      9


destroy the domination of the nervous excitement over the declarant's reflective

faculties. State v. Wallace, 37 Ohio St.3d 87, 524 N.E.2d 466(1988), paragraph 2 of the

syllabus; State v. Green, 5th Dist. No. 01 CA-A-12-067, 2002-Ohio-3949, ¶37.

      {¶29} In the case at bar, Triplett claims that because the witnesses testified A.K.

had calmed down and then was asked by the witnesses what happened, A.K. was not

under the stress and excitement of the startling event and thus her statements were not

permitted as excited utterances.

      {¶30} The statements A.K. made to Tolley and Eddy when she was dropped off

at Eddy's home three days after she was kidnapped were admissible under the excited

utterance exception to the hearsay rule. A.K. was crying and so hysterical that she

could barely talk. She told Tolley and Eddy that she was beaten and raped by Triplett

after he threw her into the car on the previous Friday or early morning hours of

Saturday. A.K. was visibly shaken and upset. Further, A.K. did testify and was cross-

examined concerning her statements.

      {¶31} In addition, even if error occurred in the admission of the statements, it

was harmless. We note that any error will be deemed harmless if it did not affect the

accused's “substantial rights.” Before constitutional error can be considered harmless,

we must be able to “declare a belief that it was harmless beyond a reasonable doubt.”

United States v. Chapman, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).

Where there is no reasonable possibility that unlawful testimony contributed to a

conviction, the error is harmless and therefore will not be grounds for reversal. State v.

Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78, citing Chapman;

State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of the
Stark County, Case No. 2012CA00200                                                     10

syllabus, vacated in part on other grounds Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135,

57 L.Ed.2d 1154(1978).

      {¶32} Kimberly Heffner, the S.A.N.E. nurse-examiner related the same

information to the jury concerning A.K.’s description of the Triplett’s actions during the

kidnapping and sexual assault. Therefore, other properly admitted evidence established

the same information.

      {¶33} Because we find there is no reasonable possibility that testimony cited as

error by Triplett contributed to his convictions, any error is harmless. State v. Owens,

5th Dist. No. 2009-CA-00223, 2010-Ohio-4240, ¶38.

      {¶34} Triplett’s first assignment of error is overruled.

                                                II.

      {¶35} In his second assignment of error, Triplett contends that his conviction is

against the sufficiency and the weight of the evidence.

      {¶36} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.
Stark County, Case No. 2012CA00200                                                           11


       {¶37} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶38} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.
Stark County, Case No. 2012CA00200                                                      12


             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts. * * *

              “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent

      with the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

      {¶39} If the State relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction. State v. Jenks, 61 Ohio

St.3d 259, 274, 574 N.E.2d 492(1991) at paragraph one of the syllabus, superseded by

State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668(1997). Circumstantial evidence and direct evidence inherently

possess the same probative value. Id.

      {¶40} Furthermore,

              “[s]ince    circumstantial   evidence   and   direct   evidence    are

      indistinguishable so far as the jury's fact-finding function is concerned, all

      that is required of the jury is that i[t] weigh all of the evidence, direct and

      circumstantial, against the standard of proof beyond a reasonable doubt’

      Jenks, 61 Ohio St.3d at 272, 574 N.E. 2d 492. While inferences cannot be
Stark County, Case No. 2012CA00200                                                       13


       based on inferences, a number of conclusions can result from the same

       set of facts. State v. Lott (1990), 1 Ohio St.3d 160, 168, 555 N.E.2d 293,

       citing Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 329,

       331, 130 N.E.2d 820. Moreover, a series of facts and circumstances can

       be employed by a jury as the basis for its ultimate conclusions in a case.

Lott, 51 Ohio St.3d at 168, 555 N.E.2d 293, citing Hurt v. Charles J. Rogers Transp. Co.

(1955), 164 Ohio St. 329, 331, 130 N.E.2d 820(1955).

       {¶41} Triplett was convicted of rape in violation of R. C. 2907.02(A)(2) which

prohibits any person from engaging in sexual conduct with another "when the offender

purposely compels the other person to submit by force or threat of force."

       {¶42} In this case, A.K. testified that she did not consent to vaginal sexual

intercourse with Triplett, that after he beat her up and refused to release her by lying on

top of her, he removed her pants and underwear and held her arms up while he inserted

his penis into her vagina. A.K. testified that she was afraid he would beat her up further.

       {¶43} “Corroboration of victim testimony in rape cases is not required. See State

v. Sklenar (1991), 71 Ohio App.3d 444, 447, 594 N.E.2d 88; State v. Banks (1991), 71

Ohio App.3d 214, 220, 593 N.E.2d 346; State v. Lewis (1990), 70 Ohio App.3d 624,

638, 591 N.E.2d 854; State v. Gingell (1982), 7 Ohio App.3d 364, 365, 7 OBR 464, 455

N.E.2d 1066.” State v. Johnson, 112 Ohio St .3d 210, 217, 2006-Ohio-6404, 858 N.E.2d

1144,¶53.

       {¶44} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Triplett had committed the crime of rape.
Stark County, Case No. 2012CA00200                                                        14


       {¶45} We hold, therefore, that the state met its burden of production regarding

each element of the crime of rape and, accordingly, there was sufficient evidence to

submit the charge to the jury and to support Triplett's conviction.

       {¶46} Triplett was also found guilty of kidnapping. R. C. 2905.01(A)(3), provides,

in relevant part,

              No person, by force, threat, or deception ...shall remove another

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

       other person, for any of the following purposes:

                                            ***

       (3) To terrorize, or to inflict serious physical harm on the victim of another

                                            ***

              (C)(1) Whoever violates this section is guilty of kidnapping. Except

       as otherwise provided in this division or division (C)(2) or (3) of this

       section, if an offender who violates division (A)(1) to (5), (B)(a) or (B)(2) of

       this section releases the victim in a safe place unharmed, kidnapping is a

       felony of the second degree.

       {¶47} In the case at bar, A.K. testified Triplett told her to get in the car and he

took her to his father’s semi truck shop. There, he hit her with a long stick, dragged her

across the lot and chained her to a truck bumper. Triplett then drove around the city with

A.K. in the passenger seat trying to find his chain. When she tried to jump out, he

grabbed her by the throat. A.K. further testified Triplett drove to a Speedway station and

finally after several hours drove to his home. Triplett told her he was going to hold her

hostage until he got the money for the chain.
Stark County, Case No. 2012CA00200                                                        15


       {¶48} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Triplett had committed the crime of kidnapping.

       {¶49} We hold, therefore, that the state met its burden of production regarding

each element of the crime of kidnapping and, accordingly, there was sufficient evidence

to submit the charge to the jury and to support Triplett's conviction.

       {¶50} Triplett does not challenge his conviction for assault on appeal. Triplett

conceded at trial that he was guilty of this crime.

       {¶51} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there is

relevant, competent and credible evidence upon which the fact finder could base his or

her judgment. Cross Truck v. Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d

279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n

determining whether the judgment below is manifestly against the weight of the

evidence, every reasonable intendment and every reasonable presumption must be

made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132

Ohio St.3d 328, 334, 972 N.E. 2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is

well established that the trial court is in the best position to determine the credibility of
Stark County, Case No. 2012CA00200                                                       16

witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing

State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).

       {¶52} Although Triplett cross-examined the victim and the other state witnesses

regarding inconsistencies in, and the vagueness of, their testimony and further argued

that no forensic or expert evidence supported the allegations, the jury was free to

accept or reject any and all of the evidence offered by the parties and assess the

witness' credibility.

       {¶53} We conclude the jury, in resolving the conflicts in the evidence, did not

create a manifest injustice to require a new trial. Viewing this evidence in a light most

favorable to the prosecution, we further conclude that a rational trier of fact could have

found beyond a reasonable doubt that Triplett had committed the crimes of rape and

kidnapping. We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). The jury neither lost his way nor created a miscarriage of justice in convicting

Triplett of the charges.

       {¶54} Based upon the foregoing and the entire record in this matter, we find

Triplett's convictions were not against the manifest weight of the evidence. To the

contrary, the jury appears to have fairly and impartially decided the matters before it.

The jury as the trier of fact can reach different conclusions concerning the credibility of

the testimony of Triplett and A.K. This court will not disturb the jury's finding so long as

competent evidence was present to support it. State v. Walker, 55 Ohio St.2d 208, 378
Stark County, Case No. 2012CA00200                                                       17


N.E.2d 1049 (1978). The jury heard the witnesses, evaluated the evidence, and was

convinced of Triplett's guilt.

       {¶55} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes beyond a reasonable doubt.

       {¶56} Triplett’s second assignment of error is overruled.

                                                III.

       {¶57} In his third assignment of error, Triplett argues that the trial court erred by

not merging the convictions for kidnapping and rape for purposes of sentencing

pursuant to R.C. 2941.25.

       {¶58} R.C. 2941.25, Multiple counts states:

               (A) Where the same conduct by defendant can be construed to

       constitute two or more allied offenses of similar import, the indictment or

       information may contain counts for all such offenses, but the defendant

       may be convicted of only one.

               (B) Where the defendant's conduct constitutes two or more

       offenses of dissimilar import, or where his conduct results in two or more

       offenses of the same or similar kind committed separately or with a

       separate animus as to each, the indictment or information may contain

       counts for all such offenses, and the defendant may be convicted of all of

       them.

       {¶59} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson
Stark County, Case No. 2012CA00200                                                    18

court overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699(1999), “to the extent

that it calls for a comparison of statutory elements solely in the abstract under R.C.

2941.25.” The Court was unanimous in its judgment and the syllabus, “When

determining whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25, the conduct of the accused must be considered. (State v. Rance

(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)” However, the Court could not

agree on how the courts should apply that syllabus holding. The Johnson case lacks a

majority opinion, containing instead two plurality opinions, and a separate concurrence

in the judgment and syllabus only. State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-

1147, ¶71 (DeGenaro, J., concurring in part and dissenting in part).

      {¶60} Justice Brown’s plurality opinion sets forth a new two-part test for

determining whether offenses are allied offenses of similar import under R.C. 2941.25.

The first inquiry focuses on whether it is possible to commit both offenses with the same

conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the commission of one

offense will always result in the commission of the other. Id. Rather, the question is

whether it is possible for both offenses to be committed by the same conduct. Id.,

quoting State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816(1988).

Conversely, if the commission of one offense will never result in the commission of the

other, the offenses will not merge. Johnson at ¶ 51.

      {¶61} If it is possible to commit both offenses with the same conduct, the court

must next determine whether the offenses were in fact committed by a single act,

performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio

St.3d 447, 895 N.E.2d 149, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in
Stark County, Case No. 2012CA00200                                                     19


judgment only). If so, the offenses are allied offenses of similar import and must be

merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately

or with a separate animus, the offenses will not merge. Id. at ¶ 51.

      {¶62} Under Justice Brown’s plurality opinion in Johnson, “the court need not

perform any hypothetical or abstract comparison of the offenses at issue in order to

conclude that the offenses are subject to merger.” Id. at ¶ 47, 942 N.E. 2d 1061. Rather,

the court simply must ask whether the defendant committed the offenses by the same

conduct. Id.

      {¶63} In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345(1979), syllabus,

the Court set forth the following test to determine what constitutes a separate animus for

kidnapping and a related offense. Specifically, the Court stated:

               In establishing whether kidnapping and another offense of the

      same or similar kind are committed with a separate animus as to each

      pursuant to R.C. 2941.25(B), this court adopts the following guidelines:

               (a) Where the restraint or movement of the victim is merely

      incidental to a separate underlying crime, there exists no separate animus

      sufficient to sustain separate convictions; however, where the restraint is

      prolonged, the confinement is secretive, or the movement is substantial so

      as to demonstrate a significance independent of the other offense, there

      exists a separate animus as to each offense sufficient to support separate

      convictions;

               (b) Where the asportation or restraint of the victim subjects the

      victim to a substantial increase in risk of harm separate and apart from
Stark County, Case No. 2012CA00200                                                      20


      that involved in the underlying crime, there exists a separate animus as to

      each offense sufficient to support separate convictions.

      {¶64} In the case at bar, Triplett restrained A.K. because she broke his chain

necklace and he wanted it replaced. Triplett then drove to different locations in an

attempt to find the chain. A.K. was unable to leave. She was beaten and restrained at

the business premises of Triplett’s father. After returning home, Triplett fell asleep on

top of A.K. The pair left the home a second time to look for the necklace. After returning

home, Triplett again fell asleep on top of A.K. The rape occurred sometime the next

morning.

      {¶65} Under R.C. 2941.25(B), “animus” is defined as “purpose or, more properly,

immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). If

the defendant acted with the same purpose, intent, or motive, the animus is identical for

the offenses. State v. Lewis, 12th Dist. No. CA2008–10–045, 2012–Ohio–885, ¶ 13.

      {¶66} The O’Donnell concurrence in Johnson utilized the following illustration,

             Consider the crimes of rape and kidnapping, for example. The

      elements of each are different. Rape, as defined in R.C. 2907.02(A)(2), is

      committed when a defendant engages in sexual conduct with another and

      the defendant purposefully compels the other person to submit by force or

      threat of force. Kidnapping, as defined in R.C. 2905.01(A)(4), is committed

      when by force, threat, or deception, or, in the case of a victim under the

      age of 13 or mentally incompetent, by any means, a defendant removes

      another from the place where the other person is found or restrains the
Stark County, Case No. 2012CA00200                                                   21


      liberty of the other with the purpose to engage in sexual activity with the

      victim against the victim's will.

             Inevitably, every rapist necessarily kidnaps the victim, because the

      conduct of engaging in sexual conduct by force results in a restraint of the

      victim's liberty. Thus, in those circumstances, the conduct of the defendant

      can be construed to constitute two offenses—rape and kidnapping—and

      an indictment may contain counts for each, but the defendant may be

      convicted of only one.

             In a different factual situation, however, if the state presented

      evidence that a defendant lured a victim to his home by deception, for

      example, and then raped that victim, an indictment may contain separate

      counts for the rape and for the kidnapping. In this hypothetical, different

      conduct—the luring of the victim by deception and the separate act of

      rape—results in two offenses being committed separately; therefore, the

      indictments may contain counts for both offenses and the defendant may

      be convicted of both. See, e.g., State v. Ware (1980), 63 Ohio St.2d 84,

      17 O.O.3d 51, 406 N.E.2d 1112 (the defendant could be convicted of both

      kidnapping and rape because he lured the victim to his home by deception

      before raping her).

State v. Johnson, 128 Ohio St.3d at ¶81-81(O’Donnell concurring in judgment and

syllabus)(Footnotes omitted). See, State v. Pore, 5th Dist. No. 2011-CA-00190, 2012-

Ohio-3660, ¶27.
Stark County, Case No. 2012CA00200                                                       22


       {¶67} In the case at bar, the immediate purpose of Triplett’s forcing A.K. into his

car was in response to the loss of his gold chain. This separate act was not committed

with the purpose to engage in sexual activity with the victim against the victim's will. The

different conduct results in two offenses being committed separately. Under the facts at

bar, we conclude that there was an act of asportation by force which constituted

kidnapping, and which was significantly independent from the restraint incidental to the

rape itself. The two crimes were committed separately.

       {¶68} Accordingly, Triplett’s third assignment of error is overruled.
Stark County, Case No. 2012CA00200                                               23


      {¶69} For the reasons stated in this opinion, the judgment of the Stark County

Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur



                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          _________________________________
                                          HON. PATRICIA A. DELANEY




WSG:clw 0611
[Cite as State v. Triplett, 2013-Ohio-3114.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                      :
                                                   :
                              Plaintiff-Appellee   :
                                                   :
                                                   :
-vs-                                               :    JUDGMENT ENTRY
                                                   :
JAMIE TRIPLETT, JR.                                :
                                                   :
                                                   :
                        Defendant-Appellant:       CASE NO. 2012CA00200




         For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs to appellant.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. WILLIAM B. HOFFMAN


                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY
