[Cite as State v. Flenner, 2018-Ohio-1027.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,            :
                                                          CASE NO. 2017-T-0054
         - vs -                                  :

 CECIL LEE FLENNER,                              :

                  Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CR
 00641.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, and Gabriel M. Wildman, Assistant
 Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
 44481 (For Plaintiff-Appellee).

 Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 444481
 (For Defendant-Appellant).



THOMAS R. WRIGHT, P.J.


        {¶1}      Appellant, Cecil L. Flenner, appeals his conviction and sentence on seven

felony offenses, including aggravated burglary, rape, and kidnapping. He contests the

sufficiency of the evidence, the manifest weight of the evidence, and the merger of the

kidnapping count for purposes of sentencing. We affirm.

        {¶2}      Appellant has been addicted to cocaine for twenty years. During most of
that time, he has been close friends with Lisa Prater, a cocaine addict for over fifteen

years. In the beginning, appellant’s relationship with Prater was limited to using illegal

drugs together. However, as the years went by, they began to live together at various

locations in the Warren, Ohio area. Usually, their living arrangements would only last for

a few months, and they would then go their separate ways. Nevertheless, their friendship

endured.

         {¶3}   At some point in 2013, Prater was convicted of cocaine possession, a fifth-

degree felony. As a result of this conviction, Prater became motivated to “beat” her

addiction. Over the ensuing three years, she remained “clean” and began attending

church as often as she could. With assistance from her parents, she was also able to

purchase a trailer, located near her church in the Warren area.

         {¶4}   During the course of her rehabilitation, Prater maintained her friendship with

appellant. Furthermore, during certain periods in which appellant was able to stop taking

illegal drugs, Prater allowed him to reside with her. One such period began in June 2016,

when he moved into her trailer. But, despite the closeness of their relationship, the parties

had an agreement that their cohabitation would end if appellant started using cocaine

again.

         {¶5}   This period of cohabitation lasted for approximately two months. In early

August 2016, appellant began a serious cocaine binge and immediately removed most of

his belongings from the trailer. Since Prater felt that she must end her friendship with

appellant due to his inability to remain sober, she required him to leave his key to the

trailer with her.

         {¶6}   In the days following their breakup, Prater believed that appellant was




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stalking her by driving around the general area near her trailer. She also believed that,

on one occasion, he broke into the trailer through a window and stole some small items.

Consequently, her father and a church friend inserted additional screws through each of

her window frames so that the windows could not be pried open. They also installed two

new locks on her front door.

       {¶7}   According to Prater, on the morning of August 25, 2016, she observed

appellant sitting in his truck near her trailer, looking at her through a window as she had

a cup of coffee. In response, she called his probation officer to report his behavior. But,

after a few moments, appellant drove away from the trailer, and Prater did not have any

further contact with him that day.     At approximately 10:00 p.m., she took her daily

medications and went to bed. Due to the nature of her pills, she was a sound sleeper.

       {¶8}   According to appellant, he stopped at the trailer that morning because he

wanted to tell Prater that he had decided to straighten up his life. Under his version, they

had an amicable conversation about the situation, and Prater told him that he could come

back that evening. She also allegedly gave him a new key to the front door. Yet, although

appellant intended to come back later that day, he was delayed because he had an

opportunity to smoke crack cocaine. Thus, he did not return to the trailer until 1:00 a.m.

on August 26.

       {¶9}   There is no dispute that upon his return, appellant parked his truck in the

parking lot of a nearby church, walked across a field to Prater’s trailer, and smashed one

of her windows with a crowbar. After that, the two versions of the ensuing events vary

greatly.   According to Prater, appellant terrorized her during the next few hours by

committing the following acts: hitting her with his fist in the face and chest, threatening to




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kill her, raping her, choking her until she was rendered unconscious for a short period,

and forcing her to take a shower. According to him, Prater willingly let him into the trailer

after hearing him smash the window, and they had consensual sex. Later, they had a

physical altercation when Prater became jealous after he received a telephone call from

a female cocaine user. During that altercation, he slapped Prater’s face with his open

hand.

        {¶10} There is likewise no dispute that appellant was high on cocaine during the

entire event. At approximately 5:00 a.m., he passed out on the living room couch, and

Prater immediately called the local police. Meeting the responding police officers in the

driveway to her trailer, she quickly informed them that appellant had broken into her

residence and raped her. The officers observed that Prater appeared frightened and had

multiple bruises on her face and neck. After speaking to the officers, she was taken by

ambulance to a local hospital.

        {¶11} In addition to Prater’s allegations, the officers learned over their radios that

there was an outstanding warrant for appellant’s arrest. Accordingly, appellant was

immediately taken into custody.

        {¶12} At the hospital, a sexual assault nurse examined Prater. As part of the

procedure, the nurse took Prater’s statement concerning the rape and documented the

injuries to her face, neck, chest, and left knee. Although Prater’s genitals were examined,

no trauma or DNA evidence was found in this part of her body. However, subsequent

tests of Prater’s night shirt revealed the presence of seminal fluid, and appellant’s DNA

was found on the same item.

        {¶13} After preliminary proceedings before a municipal court, the county grand




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jury returned a seven count indictment charging appellant with the following: two counts

of aggravated burglary, first-degree felonies under R.C. 2911.11(A)(1) & (A)(2); two

counts of rape, first-degree felonies under R.C. 2907.02(A)(2); one count of kidnapping,

a first-degree felony under R.C. 2905.01(A)(3); one count of domestic violence, a third-

degree felony under R.C. 2919.25(A); and one count of tampering with evidence, a third-

degree felony under R.C. 2921.12(A)(1).

       {¶14} At trial, Prater testified that the following occurred after appellant entered

the trailer: (1) she initially woke up because someone was laying on top of her and hitting

her in the head; (2) she did not know who her attacker was until he got up and turned on

the light, whereupon she saw it was appellant; (3) he was holding a crowbar and

threatening her, stating he was going to kill her by crushing her skull; (4) appellant took

possession of Prater’s cell phone before waking her; (5) he continued to threaten her for

a substantial period, during which he twice went into the kitchen for water and food; (6)

after threatening her with a knife he got from the kitchen, he left her bedroom and went

to the laundry room to get bleach to pour on her clothes; (7) at that point, Prater tried to

escape by running to the front door; (8) appellant caught her by the door and

dragged/pushed her back to the bedroom; (9) after pushing her onto the bed, he took off

Prater’s night clothes and forced her to engage in oral and vaginal sex; (10) appellant

punched her and held her around the throat while raping her; (11) at the end of the vaginal

sex, he ejaculated on Prater’s stomach; (12) he again told her that he was going to kill

her, grabbed her by the throat, and then choked her until she lost consciousness; (13)

when Prater woke, appellant was dressed and walking down the hallway; (14) she put

her night shirt on and started to follow him; (15) at that juncture, he ordered her to take a




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shower so that there would be no evidence of the rape; (16) she got into the shower and

let the water run over her, but did not use soap; (17) after the shower, appellant got a

telephone call which changed his attitude, and he began to act as if nothing had

happened; (18) he told Prater he was leaving, but he passed out before making it to the

front door; and (19) she called 9-1-1 with a spare cell phone she kept hidden in her

bedroom.

      {¶15} Appellant testified on his own behalf, stating that, even though he used the

crowbar to brake the window, Prater still willingly allowed him into her residence and they

had consensual sex.      Although he admitted he slapped Prater during a physical

altercation, he claimed this did not occur until after they had sex and was instigated when

Prater became jealous about a phone call he received from another female.

      {¶16} The jury found appellant guilty on all counts. For purposes of sentencing,

the trial court merged the two aggravated burglary counts. The court then imposed 10

years on the remaining aggravated burglary count; 10 years on each of the two rape

counts; five years on the kidnapping count; 36 months on the domestic violence count;

and 36 months on the “tampering with evidence” count. The trial court further ordered

the first four terms to be served consecutively, while the two 36-month terms would be

served concurrently with each other and the other four terms. As a result, appellant was

given an aggregate term of 35 years.

      {¶17} In appealing, appellant raises six assignments of error for review:

      {¶18} “[1.] The state failed to produce evidence that was legally sufficient to

sustain the jury’s verdict that appellant tampered with evidence.

      {¶19} “[2.] The jury’s verdict of guilty on the counts of aggravated burglary was




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against the manifest weight of the evidence.

       {¶20} “[3.] The jury’s verdict of guilty on the counts of rape was against the

manifest weight of the evidence.

       {¶21} “[4.] The jury’s verdict of guilty on the count of kidnapping was against the

manifest weight of the evidence.

       {¶22} “[5.] The jury’s verdict of guilty on the count of tampering with evidence was

against the manifest weight of the evidence.

       {¶23} “[6.] The trial court erred when it failed to merge the kidnapping count with

an allied offense.”

       {¶24} Under his first assignment, appellant contends his conviction for tampering

with evidence cannot stand because the state failed to present any testimony showing

that he committed an act causing the destruction of relevant evidence. The “evidence” in

dispute is the seminal fluid which, according to Prater, appellant ejaculated on her

stomach after the vaginal rape. In charging him with this offense, the state alleged that

he purposely acted to destroy the seminal fluid by requiring Prater to take a shower.

Appellant argues that no destruction of the fluid could have occurred because Prater

specifically testified that she did not use soap during the shower.

       {¶25} In raising this argument, appellant is contesting the legal sufficiency of the

state’s evidence as to the “tampering” count:

       {¶26} “‘A sufficiency of the evidence argument challenges whether the state has

presented evidence for each element of the charged offense. The test for sufficiency of

evidence is whether, after viewing the probative evidence and the inferences drawn from

it, in a light most favorable to the prosecution, any rational trier of fact could find all




                                             7
elements of the charged offense proven beyond a reasonable doubt.’ State v. Barno,

11th Dist. No. 2000-P-0100, 2001-Ohio-4319, 2001 Ohio App. LEXIS 4280, at *16, 2001

WL 1116908 [at *5] citing State v. Jones, 91 Ohio St.3d 335, 345, 744 N.E.2d 1163 2001-

Ohio-57. Whether sufficient evidence has been presented to allow the case to go to the

jury is a question of law; thus, an appellate court is not permitted to weigh the evidence

when making this inquiry. State v. Schlee (Dec. 23, 1994), 11th Dist. No. 93-L-082, 1994

Ohio App. LEXIS 5862, at *13, 1994 WL 738452 [at *4] (citations omitted). A reviewing

court will not reverse a jury verdict ‘where there is substantial evidence upon which the

jury could reasonably conclude that all the elements of an offense have been proven

beyond a reasonable doubt.’ Id. citing State v. Eley (1978), 56 Ohio St.2d 169, 383

N.E.2d 132, at the syllabus. Thus, an appellate court will examine the evidence and

determine whether that evidence, ‘if believed, would convince the average mind of a

defendant’s guilt beyond a reasonable doubt.’ State v. Norwood, 11th Dist. No. 2005-L-

047, 2006-Ohio-3415, at ¶15, citing State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574

N.E.2d 492.” State v. Higgins, 11th Dist. Lake No. 2005-L-215, 2006-Ohio-5372, ¶22.

       {¶27} Appellant was charged with one count of tampering with evidence under

R.C. 2921.12(A)(1), which provides:

       {¶28} “(A) No person, knowing that an official proceeding or investigation is in

progress, or is about to be or likely to be instituted, shall do any of the following:

       {¶29} “(1) Alter, destroy, conceal, or remove any record, document, or thing, with

purpose to impair its value or availability as evidence in such proceeding or investigation.”

       {¶30} According to Prater, as she began to follow appellant down the hallway after

she regained consciousness, he ordered her to immediately take a shower for the express




                                              8
purpose of disposing of any “proof” that he raped her. Prater also testified that, even

though she complied with his demands and got into the shower, she did not use any soap.

Based upon this testimony, appellant maintains that the state’s evidence is insufficient to

establish that his “order” to Prater resulted in the destruction of the ejaculate on her

stomach.

         {¶31} However, the state presented other evidence demonstrating that, although

a skin swab of Prater’s stomach was taken during the examination performed by the

sexual assault nurse, no trace of seminal fluid was found on her stomach or any other

part of her body. Therefore, a reasonable person could conclude that, notwithstanding

the lack of soap, the seminal fluid was removed from her body as a result of the water

from the shower. To this extent, the state presented some evidence sufficient to satisfy

the “destruction” element of tampering with evidence. Appellant’s first assignment lacks

merit.

         {¶32} Under his next four assignments, appellant asserts each of his convictions

for aggravated burglary, rape, kidnapping, and tampering with evidence are against the

manifest weight of the evidence. Although asserting a separate assignment of error as

to each conviction, he has raised the identical argument regarding all four. Specifically,

he contends that the jury should have rejected Prater’s testimony as unbelievable in

contrast to his version of the incident because her testimony directly conflicts with prior

statements she gave to the police and the sexual assault nurse.

         {¶33} “Whereas ‘sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the

evidence addresses the evidence’s effect of inducing belief.’ State v. Wilson, 113 Ohio




                                              9
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶25, citing State v. Thompkins, 78 Ohio

St.3d 380, 386-387, 678 N.E.2d 541 (1997). ‘In other words, a reviewing court asks

whose evidence is more persuasive – the state’s or the defendant’s?’ Id. An appellate

court considering whether a verdict is against the manifest weight of the evidence must

consider all the evidence in the record, the reasonable inferences, the credibility of the

witnesses, and 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.’ Thompkins, at 387, 678 N.E.2d 541, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).” State v. Griggs, 11th Dist. Lake

No. 2014-L-127, 2015-Ohio-4635, ¶42.

       {¶34} Even though an appellate court is required to consider the credibility of the

witnesses as part of its review of the evidence, we are also obligated to show due

deference to the jury’s resolution of this matter. State v. Tvaroch, 11th Dist. Trumbull No.

2012-T-0008, 2012-Ohio-5836, ¶45.

       {¶35} “‘As a general proposition, we have consistently indicated that questions of

witness credibility are primarily for the trier of fact to decide. [State v. Johnson, 11th Dist.

No. 2009-T-0042, 2010-Ohio-1970, 2010 WL 1782446, at ¶17,] citing State v. DeHass,

10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The basis of

this proposition is that the trier of fact is in a much better position to observe the body

language, demeanor, and voice inflection of the witnesses.’ State v. Meeks, 11th Dist.

No. 2011-L-066, 2012-Ohio-4098, 2012 WL 3893588, ¶37.” Id. at ¶46.

       {¶36} At trial, appellant’s counsel argued that Prater’s trial testimony was not

consistent with her statements to the police immediately after the incident. Specifically,




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counsel noted that Prater referenced the rapes early in her statements to the police,

thereby insinuating that the rapes occurred soon after appellant broke into the trailer. In

contrast, she clearly stated during her trial testimony that appellant terrorized her for a

substantial period before committing the rapes. Based upon this, counsel asserted that

Prater had given conflicting versions of the incident, thereby rendering her testimony

unbelievable.

       {¶37} However, there is a logical reason for the alleged inconsistency between

Prater’s testimony and her prior statements. When she spoke to the police the day of the

incident, the incident had just ended, and Prater was still under the immediate emotional

distress of the situation.    Under such circumstances, it is understandable that the

statements she gave to the police were not as detailed as her testimony eight months

later. Furthermore, given that the two rapes were the most serious offenses that occurred

in the incident as described by Prater, it is not surprising that Prater would reference them

early in her statement to the police notwithstanding the fact that appellant terrorized her

at least one hour before committing the rapes.

       {¶38} Appellant was clearly nervous in testifying at trial; thus, her testimony was

sometimes rambling, as she would try to address multiple issues in answering a single

question.   Nevertheless, her testimony was generally coherent and did not contain

illogical inconsistencies. Moreover, her version of the incident was supported by other

physical facts, such as the nature of the injuries to her face and the presence of seminal

fluid on her night shirt. In addition, as the state aptly notes, the jury could have reasonably

rejected appellant’s testimony on the grounds that, by his own admission, he had been

on a cocaine binge for several days prior to the incident. Therefore, the jury did not lose




                                              11
its way in finding Prater’s testimony credible.

       {¶39} Appellant does not dispute that, if believed, the state’s evidence satisfies all

of the elements for aggravated burglary, both rapes, kidnapping, and tampering with

evidence. Accordingly, all four of his “manifest weight” assignments are without merit.

       {¶40} Under his last assignment, appellant maintains that the trial court erred in

imposing a separate sentence on the kidnapping count because that crime should have

been merged into either the two rape counts or the “tampering with evidence” count. He

argues that the additional penalty is unjustified when the kidnapping did not expose Prater

to any separate harm and was not committed with a separate animus.

       {¶41} “R.C. 2941.25 reflects the General Assembly’s intent to prohibit or allow

multiple punishments for two or more offenses resulting from the same conduct. State v.

Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶11. R.C. 2941.25 provides:

       {¶42} “‘(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment * * * may contain counts for

all such offenses, but the defendant may be convicted of only one.’

       {¶43} “‘(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 *

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

them.’” State v. Armstead-Williams, 11th Dist. Portage No. 2016-P-0007, 2017-Ohio-

5643, ¶18-20.

       {¶44} “In other words, by statute, when the defendant’s conduct constitutes a

single offense, the defendant may be convicted and punished only for that offense. When




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the conduct supports more than one offense, however, a court must conduct an analysis

of allied offenses of similar import to determine whether the offenses merge or whether

the defendant may be convicted of separate offenses.

       {¶45} “In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio

Supreme Court set forth the standard for determining whether merger is apposite, holding

that ‘[w]hen 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.’ Id. at

syllabus. Recently, in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Supreme

Court clarified that two or more offenses may result in multiple convictions if any of the

following are true: ‘(1) the offenses are dissimilar in import or significance – in other words,

each offense caused separate, identifiable harm, (2) the offenses were committed

separately, and (3) the offenses were committed with separate animus or motivation.’ Id.

at ¶25.” State v. Jameson, 11th Dist. Ashtabula No. 2014-A-0069, 2015-Ohio-4634, ¶10-

11.

       {¶46} As a general proposition, the offenses of kidnapping and rape are allied

offenses of similar import. State v. Miller, 11th Dist. Trumbull No. 2010-T-0018, 2010-

Ohio-5795, ¶73-74, quoting State v. Price, 60 Ohio St.2d 136, 393 N.E.2d 772 (1979),

paragraph five of the syllabus. Regarding the issue of when rape and kidnapping are

committed with separate motivations, Miller quoted the following passage from State v.

Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶90:

       {¶47} “‘In State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, we

established guidelines to determine whether kidnapping and rape are committed with a

separate animus so as to permit separate punishment under R.C. 2941.25(B). We held




                                              13
in Logan that “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, when the restraint is prolonged, the confinement 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.” Id. at paragraph (a) of the syllabus. Conversely, the Logan court recognized

that where the asportation or restraint “subjects the victim to a substantial increase in risk

of harm separate and apart from the underlying crime, there exists a separate animus.”

Id., 60 Ohio St.2d 126, 397 N.E.2d 1345, at paragraph (b) of the syllabus.’” Miller, 2010-

Ohio-5795, at ¶76.

       {¶48} According to Prater, appellant was inside her home a prolonged period of

time, at least one hour, before the rapes occurred. During that period, he terrorized her

by hitting her with his fist, threatening her with a crowbar and knife, and threatening to

take her life.   Thus, during that initial period before the rapes, Prater’s liberty was

restrained, and she was subject to a substantial risk of harm that was distinct from the

rapes. Given these facts, appellant had a separate animus as to the kidnapping count

and the two rape counts.

       {¶49} Even if it is assumed, for purposes of this discussion, that kidnapping and

tampering with evidence are allied offenses of similar import, the foregoing “separate

animus” analysis would still apply. Again, appellant’s restraint of Prater prior to the rapes

cannot be characterized as merely incidental to his subsequent action of forcing Prater to

take a shower. Therefore, the trial court did not err in imposing a separate prison term

on the kidnapping count because it was not subject to merger under R.C. 2941.25.




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Appellant’s sixth assignment also lacks merit.

      {¶50} The judgment of the Trumbull County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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