[Cite as State v. Starkey, 2017-Ohio-7946.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2016-A-0051
        - vs -                                  :

KYLE W.M. STARKEY,                              :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015
CR 00588.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Thomas Rein, 820 Superior Avenue, Suite 800, Cleveland, OH 44113 (For Defendant-
Appellant).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Kyle W.M. Starkey appeals from the judgment of the Ashtabula County

Court of Common Pleas, entered on a jury verdict, convicting him of rape, kidnapping,

felonious assault, and intimidation of a witness, and sentencing him to a total term of

imprisonment of 35 years. Mr. Starkey contends his convictions are not supported by

sufficient evidence, and are against the manifest weight of the evidence.     He also
contends the trial court did not make the findings necessary to sentence him to

consecutive terms of imprisonment. Finding no reversible error, we affirm.

       {¶2}   The following facts are taken from the transcript of trial.

       {¶3}   K.C. lives with her mother, Kimberley Connor, in Wooster, Wayne County,

Ohio. In September 2012, when she met Mr. Starkey, she was studying social work at

a local college. Mr. Starkey worked the 10:00 p.m. to 8:00 a.m. shift as a cook at the

McDonald’s near K.C.’s house. The two began dating. By the time of the events in

question, Mr. Starkey lived with K.C. in her bedroom on the top floor of the Connor

residence.

       {¶4}   At trial, K.C. testified she drove to the McDonald’s to pick Mr. Starkey up

on the morning of August 7, 2013. On the way home, they stopped at a gas station so

he could buy a six pack of beer. When they got home, K.C. sat on her bed, while Mr.

Starkey drank the beer, and used the laptop to try to find tickets for a train trip he

wanted to take.

       {¶5}   Having finished the beer, Mr. Starkey demanded sex. K.C. testified she

refused, telling him he treated her like a sex slave. Mr. Starkey put her in a choke hold,

until she passed out. She awoke to him punching her in the face. Mr. Starkey had the

knife he kept in the nightstand. He held it to K.C.’s throat, and threatened to kill her if

she did not obey his every demand.

       {¶6}   Mr. Starkey forced K.C. to strip, and lean over the bed.        Mr. Starkey

enjoys carving: he had a semi-completed archery bow in the bedroom. He stuck K.C.’s

pet dog’s rubber ball in her mouth, so she could not make any noise, and beat her with

the bow across the buttocks. He then pulled her to the floor by her hair, and forced her




                                              2
to look at the television. “Dateline” was running a segment on a missing girl. Mr.

Starkey told K.C. she would be missing, too. He then made her place a vibrator in her

rectum, and perform oral sex on him. He did not relinquish his knife.

       {¶7}   K.C. defecated in her terror. Mr. Starkey dragged her to the bathroom,

and made her wash. He then held her vanity mirror in front of her face, to show her she

was pathetic. She was shocked to see the damage he had done. Her forehead was

split open, her nose bleeding, her entire face bruised and swollen. Mr. Starkey struck

her in the face with the mirror, breaking it.

       {¶8}   Mr. Starkey forced K.C. back to the bedroom, telling her not to speak

except to answer his questions. Holding his knife to her throat, he asked her if there

was anything she wanted to do before he killed her. She asked to smoke marijuana

with him, believing that might calm him. This succeeded. Mr. Starkey then said they

needed to go someplace else, so nobody would see her. Still holding his knife, Mr.

Starkey began considering ways to kill K.C.. He told her he might take her to Shreve

Lake, beat her to death, then throw her corpse in the water. He also said he might just

cut her into pieces and bury them.

       {¶9}   Mr. Starkey said they should either go to a campground called Mohican, or

to Geneva-on-the-Lake in Ashtabula County, Ohio. K.C. suggested Geneva-on-the-

Lake, even though she had never been there, since she believed more people would be

present. She texted her mother, who was at work, to tell her where they were going.

Mr. Starkey then confiscated her phone so she could make no further contacts.

       {¶10} They left for Geneva-on-the-Lake about 4:30 or 5:00 p.m., K.C. driving,

Mr. Starkey sitting next to her with his knife drawn. The trip took about two hours. On




                                                3
arriving, they went to a hotel called “Dian’s.”     Mr. Starkey went inside with K.C.’s

identification, and money, and rented a room.

       {¶11} Mr. Starkey said they would go to a bar. On the way there, they walked

along some rocks next to the lake. Mr. Starkey gave K.C. her phone, briefly, so she

could take a picture of the sunset. She posted the picture to her Instagram account,

with the caption “Geneva-on-the-Lake,” so her friends would know where she was if Mr.

Starkey killed her.

       {¶12} They went to an arcade, then to a bar. Mr. Starkey drank heavily. K.C.

asked permission to go to the bathroom. After she came out, Mr. Starkey went in to

make sure she had not left a note. She went to the smoking patio, and tried to tell some

people that Mr. Starkey had beat her, but they did not believe it.

       {¶13} On returning to the hotel, Mr. Starkey again demanded sex. K.C. asked to

use the bathroom, since she was experiencing diarrhea due to nerves. When she was

done, Mr. Starkey grabbed her by the hair, and dragged her out of the bathroom, before

anally raping her, then forcing her to perform oral sex. Mr. Starkey had his knife next to

him. He fell asleep. K.C. dressed and got on the bed. She did not know where he had

hidden her car keys or phone, and did not try to leave.

       {¶14} They were awoken the next morning by the hotel owner, saying they had

stayed past check-out time. Mr. Starkey asked whether she had gone to the hospital,

which she denied. He did not believe her. They drove back to Wooster. That evening

K.C. dropped Mr. Starkey off at the McDonald’s, then returned home. She told her

mother what had happened, and begged her not to tell the police, since Mr. Starkey

would kill them.




                                             4
       {¶15} K.C. and her mother put Mr. Starkey’s clothes in garbage bags, and

dropped them on the porch of his best friend’s house. The next morning, Mr. Starkey

called when K.C. did not show up at the McDonald’s to pick him up. She told him to go

to his friend’s house. Mr. Starkey continued to contact her via Facebook, sending her a

threatening message August 18, 2014, reminding her not to talk, or he would carry out

his prior threats. The message is in evidence.

       {¶16} K.C.’s mother Kimberly, testified she wanted her daughter to go to the

hospital, and contact police, but agreed not to insist when K.C. told her she would

commit suicide, preferring to die by her own hand, rather than at Mr. Starkey’s.

       {¶17} August 11, 2013, Lorissa Miller, K.C.’s best friend, took photos of K.C.’s

injuries with her phone. The photos are in evidence.

       {¶18} K.C., Kimberly, and Lorissa all testified that K.C. suffered a personality

change after these events. She refused to go out with friends, who had to come visit

her at home. She even disliked going from room to room, alone.

       {¶19} Mr. Starkey testified on his own behalf, firmly denying he ever struck or

raped K.C.. He testified that K.C. is a “cutter” – i.e., that she habitually slashes herself

with knives or other sharp objects. He testified he walked home from McDonald’s on

the morning of August 7, 2013, and found her doing this, and decided to break off the

relationship. He testified the trip to Geneva-on-the-Lake was simply a “goodbye” treat

for K.C., and that they did not stay overnight.      He denied sending any threatening

message to K.C. on Facebook.

       {¶20} Cleo Jackson is Mr. Starkey’s best friend. At the time of these events, he

was a cashier at the McDonald’s, working the 10:00 p.m. to 8:00 a.m. shift with Mr.




                                             5
Starkey. He testified he had seen K.C. cut herself on a trip to Cedar Point. He further

testified that Mr. Starkey accompanied him home on the morning of August 7, 2013, and

stayed overnight, before returning to work that evening. He testified he had never seen

any garbage bags full of clothes on his porch, but that his girlfriend found some bags

there at some point. He testified that K.C. came to the McDonald’s parking lot on the

morning of August 8, 2013, and created such a scene that the manager asked her to

leave.    Mr. Jackson further testified that she drove down his street several times

thereafter, yelling abuse out of the window of her car.

         {¶21} On or about August 31, 2015, K.C. learned that Mr. Starkey was in jail on

a murder charge, thus alleviating her fear of him. She contacted the Wayne County

sheriff’s department, and gave a statement. Wayne County contacted the Ashtabula

County sheriff’s department, which also investigated.

         {¶22} October 28, 2015, the Ashtabula County Grand Jury returned a nine count

indictment against Mr. Starkey: count one, kidnapping, a first degree felony in violation

of R.C. 2905.01(A)(2); count two, kidnapping, a first degree felony in violation of R.C.

2905.01(A)(3); count three, kidnapping, a first degree felony in violation of R.C.

2905.01(A)(4); count four, rape, a first degree felony in violation of R.C. 2907.02(A)(2);

count five, rape, a first degree felony in violation of R.C. 2907.02(A)(2); count six,

felonious assault, a second degree felony in violation of R.C. 2903.11(A)(1); count

seven, felonious assault, a second degree felony in violation of R.C. 2903.11(A)(2);

count eight, intimidation of attorney, victim or witness in a criminal case, a third degree

felony in violation of R.C. 2921.04(B); and count nine, domestic violence, a first degree




                                            6
misdemeanor in violation of R.C. 2919.25(A). Mr. Starkey pleaded not guilty November

24, 2015. Motion practice ensued.

       {¶23} June 28, 2016, the case came on for trial. It was submitted to the jury July

1, 2016. The jury returned its verdict the same day, finding Mr. Starkey guilty on all nine

counts.

       {¶24} Sentencing hearing went forward July 13, 2016. The trial court found that

count one, the kidnapping relating to the trip to Geneva-on-the-Lake, did not merge for

sentencing purposes, and sentenced Mr. Starkey to five years imprisonment for this.

The trial court found that count two, kidnapping, merged for sentencing purposes with

count seven, felonious assault.     The state proceeded on count two, for which Mr.

Starkey received five years imprisonment.       The trial court found that count three,

kidnapping relating to the rape in Geneva-on-the-Lake, merged with count five, the rape

itself. The state proceeded on count five, for which Mr. Starkey received ten years. The

trial court found that count four, relating to the rape in Wooster, did not merge, and

sentenced Mr. Starkey to ten years imprisonment. The trial court found that count six,

felonious assault, merged with count nine, domestic violence; the state proceeded on

count six; and Mr. Starkey received three years. The trial court sentenced Mr. Starkey

to two years imprisonment on the intimidation count. All terms were run consecutively,

for a total term of imprisonment of 35 years. This was memorialized in a judgment entry

July 14, 2016.

       {¶25} August 29, 2016, Mr. Starkey moved this court for leave to file a delayed

appeal, and to appoint counsel. The motion was granted by a judgment entry filed

October 24, 2016.




                                            7
       {¶26} Mr. Starkey assigns three errors. The first is: “The State failed to present

sufficient evidence to sustain a conviction against Appellant.”

       {¶27} In State v. Higgins, 11th Dist. Lake No. 2005-L-215, 2006-Ohio-5372, ¶22,

we stated:

       {¶28} “‘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

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 citing State v. Jones, 91 Ohio St.3d 335, 345, * * *[2001].                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 (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, * * *, 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, * * *.” (Parallel

citations omitted.)




                                               8
      {¶29} Mr. Starkey was convicted and sentenced for kidnapping, R.C.

2905.01(A)(2), premised on forcing K.C. to drive with him to Geneva-on-the-Lake. The

statute provides:

      {¶30} “(A) No person, by force, threat, or deception, or, in the case of a victim

under the age of thirteen or mentally incompetent, by any means, 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:

      {¶31} “* * *

      {¶32} “(2) To facilitate the commission of any felony or flight thereafter[.]”

      {¶33} If believed by the jury, K.C.’s testimony established that Mr. Starkey forced

her to go to Geneva-on-the-Lake, at knife point, under threat of death, so nobody would

see the injuries he had inflicted by raping and beating her, and so he could rape her and

beat her again in Geneva-on-the-Lake.        This is sufficient evidence to sustain the

conviction.

      {¶34} Mr. Starkey was also convicted of kidnapping in violation of R.C.

2905.01(A)(2), based on K.C.’s testimony that he held her captive in her bedroom, while

raping, beating, and dragging her around the room, at knifepoint; and doing the same in

Geneva-on-the-Lake. If believed by the jury, this testimony is sufficient to sustain the

conviction.

      {¶35} Mr. Starkey was convicted of rape in violation of R.C. 2907.02(A)(2) based

on the sexual assault in Wooster. The statute provides:

      {¶36} “(A)(1) No person shall engage in sexual conduct with another who is not

the spouse of the offender or who is the spouse of the offender but is living separate




                                             9
and apart from the offender, when any of the following applies:

        {¶37} “* * *

        {¶38} “(2) No person shall engage in sexual conduct with another when the

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

        {¶39} K.C. testified Mr. Starkey choked her until she fainted; struck her in the

face repeatedly; whipped her with his bow; stuffed a rubber ball in her mouth; and raped

her orally at knife point. If believed by the jury, this is sufficient to sustain a conviction

for rape.

        {¶40} Mr. Starkey was also convicted of rape in violation of R.C. 2907.02(A)(2)

based on the rape in Geneva-on-the-Lake. Regarding that, K.C. testified he sodomized

her and orally raped her, at knife point, under the threat of death. If believed by the jury,

this is sufficient to sustain a conviction for rape.

        {¶41} Mr. Starkey was convicted for felonious assault, R.C. 2903.11(A)(1) based

on the events in Wooster August 7, 2013. The statute provides: “(A) No person shall

knowingly do either of the following: (1) Cause serious physical harm to another or to

another’s unborn[.]” K.C. testified Mr. Starkey choked her; beat her in the face and

whipped her with his bow; and hit her in the face with her mirror. If believed by the jury,

this is sufficient evidence to sustain a conviction for felonious assault.

        {¶42} Mr. Starkey was convicted for intimidation of an attorney, victim, or

witness in a criminal case, in violation of R.C. 2921.04(B), which provides, in relevant

part:

        {¶43} “(A) No person shall knowingly attempt to intimidate or hinder the victim of

a crime or delinquent act in the filing or prosecution of criminal charges or a delinquent




                                               10
child action or proceeding, and no person shall knowingly attempt to intimidate a

witness to a criminal or delinquent act by reason of the person being a witness to that

act.

       {¶44} “(B) No person, knowingly and by force or by unlawful threat of harm to

any person or property or by unlawful threat to commit any offense or calumny against

any person, shall attempt to influence, intimidate, or hinder any of the following persons:

       {¶45} “(1) The victim of a crime or delinquent act in the filing or prosecution of

criminal charges or a delinquent child action or proceeding;

       {¶46} “(2) A witness to a criminal or delinquent act by reason of the person

being a witness to that act[.]”

       {¶47} K.C. was both the victim of Mr. Starkey’s actions, and a witness to them.

She testified he repeatedly told her on August 7, 2013, and August 8, 2013, that he

would kill her if she talked to anyone about the events, as well as the person to whom

she spoke.     On or about August 18, 2014, Mr. Starkey sent her a message on

Facebook which includes the following:

       {¶48} Mr. Starkey: “You fucked up[.]”

       {¶49} K.C.: “What do you mean? ..”

       {¶50} Mr. Starkey: “You know what I mean your (sic) a lying bitch[.]”

       {¶51} K.C.: “What am I lying about?”

       {¶52} Mr. Starkey: “I’m done talking to you if your (sic) to (sic) stupid to figure it

out then whatever. [B]ut remember what I told you last time we talked in person.”

       {¶53} Of course, Mr. Starkey denied, at trial, sending K.C. messages on

Facebook. Nevertheless, if K.C.’s testimony was believed by the jury, it is sufficient to




                                             11
sustain a conviction for intimidation.

       {¶54} All of Mr. Starkey’s convictions are supported by sufficient evidence. The

first assignment of error lacks merit.

       {¶55} Mr. Starkey’s second assignment of error is: “Appellant’s convictions are

against the manifest weight of the evidence.”

       {¶56} Regarding manifest weight challenges, this court has held:

       {¶57} “‘In determining whether the verdict was against the manifest weight of the

evidence, “(* * *) (t)he 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. (* * *)’” (Citations omitted.) * * *” (Emphasis sic.) State v. Schlee, 11th Dist.

Lake No. 93-L-082, 1994 WL 738452, *5 (Dec. 23, 1994).

       {¶58} A judgment of a trial court should be reversed as being against the

manifest weight of the evidence “‘only in the exceptional case in which the evidence

weighs heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 387

(1997).

       {¶59} With respect to the manifest weight of the evidence, we note that the jury

is in the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio

St.2d. 230, paragraph one of the syllabus (1967).

       {¶60} Mr. Starkey cites the following as evidence the jury lost its way.

       {¶61} First, he notes that K.C. did not go to the police for more than two years.

However, if the jury believed her testimony that he repeatedly threatened to kill her if




                                            12
she did inform the police, it could easily find she had reason to be terrified of him. She

only went to the police after learning Mr. Starkey was in jail for murder – but the jury, of

course, never learned this.

       {¶62} Second, he takes exception to the testimony of K.C., her mother Kimberly,

and her friend Lorissa, that K.C. was scared of people after the events in question. He

notes that she has worked as a bagger and cashier at a grocery since October 2013.

But the jury was entitled to credit the testimony that she was, nevertheless, scared of

being around people. Working in a grocery is very public – protection, actually, against

an individual who has threatened you for your knowledge of his crimes, and wishes to

harm you to escape punishment.

       {¶63} Third, he cites to the testimony that K.C. cuts herself, as the explanation

for the injuries photographed by Lorissa August 11, 2013. This does not account for the

bruising on K.C.’s face and buttocks actually depicted.

       {¶64} Fourth, he cites to the testimony of his friend, Mr. Jackson. However, Mr.

Jackson actually testified that Mr. Starkey spent August 7, 2013, in his company, which

contradicts Mr. Starkey’s own testimony that he went to Geneva-on-the-Lake with K.C..

       {¶65} The jury’s verdict is not against the manifest weight of the evidence. The

second assignment of error lacks merit.

       {¶66} Mr. Starkey’s third assignment of error is: “The trial court erred by ordering

appellant to serve a consecutive sentence without making the appropriate findings

required by R.C. 2929.14 and HB 86.” R.C. 2929.14(C)(4) sets forth certain findings a

trial court must make before imposing consecutive sentences.          While no talismanic

words are required, the findings must be made both at the sentencing hearing, and the




                                            13
judgment entry of sentence. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

¶37. Mr. Starkey contends the trial court did not make these findings in its judgment

entry of sentence. The division provides:

       {¶67} “(4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds 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 if the court also finds any of the following:

       {¶68} “(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

       {¶69} “(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender’s conduct.

       {¶70} “(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

       {¶71} The judgment entry of sentence in this case provides, in pertinent part:




                                             14
      {¶72} “The Court has determined that the Defendant shall serve consecutive

prison terms pursuant to R.C. 2929.14 and that consecutive sentences are necessary to

protect the public from future crime and to punish the Defendant, and that consecutive

sentences will not be disproportionate to the seriousness of the Defendant’s conduct

and to the danger the Defendant poses to the public.”

      {¶73} These are the findings required by R.C. 2929.14(C)(4). The judgment

entry of sentence continues:

      {¶74} “The Court further finds that at least two of the multiple offenses were

committed as part of one or more courses of conduct, throughout a two (2) day time

period in Wayne and Ashtabula Counties with a victim who was his girlfriend and with

whom he resided; and the harm caused by two or more of the multiple offenses so

committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the Defendant’s conduct, as there was more than one (1) Rape, and the Defendant

assaulted the victim as evidenced by photos of her beaten and bruised, done by use of

threat or force. Further, the Defendant’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

Defendant. This is based upon the Defendant’s past juvenile and adult criminal history,

as specifically noted on the record, and the Defendant’s propensity for violence.”

      {¶75} These are the additional findings set forth at R.C. 2929.14(C)(4)(b) and

(c). Consequently, the trial court put in the judgment entry of sentence the statutory

findings required for imposing consecutive sentences on Mr. Starkey.

      {¶76} The third assignment of error lacks merit.




                                           15
      {¶77} The assignments of error lacking merit, the judgment of the Ashtabula

County Court of Common Pleas is affirmed.




CYNTHIA WESTCOTT RICE, P.J., concurs,

TIMOTHY P. CANNON, J., concurs in judgment only.




                                        16
