 [Cite as State v. Rednour, 2013-Ohio-2125.]




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

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 GARY R. REDNOUR


         Defendant-Appellant

 Appellate Case No.       25135

 Trial Court Case No. 2010-CR-2728

 (Criminal Appeal from
 (Common Pleas Court)
                                               ...........

                                               OPINION

                                  Rendered on the 24th day of May, 2013.

                                               ...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery
County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 N. Pioneer Blvd., Springboro, Ohio 45066
    Attorney for Defendant-Appellant

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

WELBAUM, J.
                                                                                             2


       {¶ 1}     Defendant-Appellant, Gary Rednour, appeals from his conviction and sentence

for the murder of Kimberly Paradiso. Following a jury trial, the trial court merged a Felonious

Assault charge with the Murder charge, and sentenced Rednour to fifteen years to life in prison.

       {¶ 2}     Rednour contends that the trial court erred in overruling his motion to suppress

and his motion for a mistrial.      In addition, Rednour contends that trial counsel rendered

ineffective assistance of counsel by failing to lay proper foundations for impeaching a State

witness and for challenging inconsistent testimony. Rednour further maintains that the jury

verdict was against the manifest weight of the evidence, and that the State failed to supply

sufficient evidence of all elements necessary to support the charges. Finally, in a supplemental

assignment of error, Rednour contends that the trial court erred when it failed to address the

imposition of costs in open court, and then included costs in the termination entry.

       {¶ 3}     We conclude that the trial court did not err in overruling Rednour’s motion to

suppress. Rednour’s statements regarding his right to remain silent were ambiguous and did not

require the detectives to stop questioning. In addition, Rednour voluntarily consented to the

buccal swab taken for purposes of establishing DNA.

       {¶ 4}     We also conclude that the trial court did not abuse its discretion in refusing to

grant a mistrial. Although the jury may have become aware of the death of a prosecutor’s

relative, the trial court issued a proper curative instruction, and the jury is presumed to have

followed the instruction.

       {¶ 5}     As a further matter, trial counsel did not render ineffective assistance of counsel,

as there was no lapse or error on counsel’s part. The jury verdict was also not against the

manifest weight of the evidence. A review of the record does not indicate that in resolving
                                                                                            3


conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage

of justice. For the same reasons, the trial court did not err in overruling Rednour’s motion for

acquittal. After viewing the evidence in a light most favorable to the prosecution, any rational

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

doubt.

         {¶ 6}   Finally, the trial court did err in imposing court costs in the termination entry,

because costs were not discussed at the sentencing hearing.           The termination entry also

incorrectly imposed a prison sentence and a three-year term of post-release control on the

Felonious Assault charge, which had been merged with the Murder conviction during sentencing.

 Accordingly, the judgment of the trial court will be Affirmed in part, Reversed in part, and

Remanded for further proceedings.



                               I. Facts and Course of Proceedings

         {¶ 7}   On Sunday, March 14, 2010, several children found a body lying on the ground

in the back yard of a deserted house located at 56 Warder Avenue, Dayton, Ohio. The children

alerted a neighbor, who called the police. When the police arrived, they found a woman, later

identified as Kimberly Paradiso, dressed in a T-shirt and jeans. Paradiso’s clothing was damp,

and she was not dressed for the weather. Her shirt was also pulled up and slightly disheveled,

and her pants button was undone, with the zipper slightly unzipped. Paradiso had facial injuries

and some discoloration in the neck area, and was obviously deceased. Her right shoe and

shoelace also looked as if they had been burned.

         {¶ 8}   At the time of her death, Paradiso was homeless and had been staying at the
                                                                                          4


YWCA Battered Women’s Shelter in downtown Dayton.                 Paradiso’s YWCA roommate,

Kimberly Jones, last saw Paradiso on Friday morning, March 12, at around 10:00 a.m.

According to Jones, Paradiso had alcohol abuse problems with which she had been struggling.

Paradiso had also told Jones that she was “hanging around” with a male friend. Jones told

Paradiso that she was concerned, and that Paradiso should not be meeting her friend in

abandoned houses and drinking. Jones additionally told Paradiso that if the friend were buying

liquor for her, he would have sexual expectations. She told Paradiso not to go.

       {¶ 9}     The YWCA has a curfew of 10:30 p.m., and if a resident has three infractions,

she is asked to leave the shelter. Paradiso always came in before curfew, but did not come back

either Friday or Saturday night. Because of this, Jones expressed concern to the staff.

       {¶ 10}    Paradiso was also supposed to pick up clothes from her daughter, Timberly, on

Friday, March 12, but she never showed up. Timberly was trying to help Paradiso find an

apartment and cut ties with an abusive boyfriend, Raymond Robinson, who had been in jail since

February 16, 2010, on charges related to an incident involving Paradiso.

       {¶ 11}    The police did not know Paradiso’s identity until Sunday, March 16, when

Jones contacted them, after hearing about the incident on the news. After speaking with Jones,

detectives went back to the area of 56 Warder Avenue to try and locate witnesses.               The

detectives encountered some people in an alley who gave them the names of Artis Allen, who

lived on Neal Avenue, and Gary Rednour, who had been rehabbing a house on Neal Avenue.

Neal Avenue is located close to where the body was found. Detectives were initially not able to

speak with Allen, but were able to find a photograph of Rednour and prepare a photo spread.

       {¶ 12}    Paradiso’s autopsy was conducted on Monday, March 17, at around 11:00 a.m.,
                                                                                             5


with three Dayton police officers (DeBorde, Heiser, and Cornwell) present.            The coroner

verbalized his findings as he conducted the autopsy.        These findings included blunt force

trauma, with extensive swelling to the left side of the orbit next to the eye, and abrasions to the

lips, consistent with being struck by a hand or fist. The facial injuries had been inflicted when

Paradiso was still alive. She had also sustained extensive bruising on the inside of the muscle

attached to the skull, which was caused by blunt force trauma of significant force.

       {¶ 13}    Because Paradiso’s shirt was pulled up and her left nipple was bruised, the

coroner also examined her for possible sexual assault, including swabbing for DNA. In addition

to the other injuries, Paradiso had bruising on her neck and a crush injury to the back of the

esophagus, which was consistent with strangulation. The coroner was of the opinion that the

cause of death was strangulation, with blunt force head injuries. However, the death certificate,

issued on March 17, indicated that the immediate cause of death was pending. The coroner’s

office does that frequently when it is waiting on additional information, like toxicology.

       {¶ 14}    Paradiso had abrasions over both shoulder blades, which were consistent with

her having been drug or moved on her back after death. Toxicology eventually indicated that

Paradiso had a blood alcohol level of .262 grams percent, which was significantly elevated.

However, the level of drugs was not high enough to have caused an overdose. The coroner also

noted that the findings regarding rigor mortis were consistent with Paradiso having died in the

early morning hours of March 13, 2010, or on the night of March 12, 2010.

       {¶ 15}    When the police showed Artis Allen the photo spread, Allen was able to

identify Rednour, whom he had noticed in the neighborhood for about a month before the

murder. On Friday, March 12, or Saturday, March 13, Allen had seen Paradiso and Rednour
                                                                                        6


together at about 10:45 a.m., at Food Time Market, which was about one block from Neal

Avenue. Rednour asked Allen for change. In addition, Allen saw the couple again around 4:30

p.m., coming out of a United Dairy Farmers (UDF) store, with beer.

       {¶ 16}   On either that Friday or Saturday, Allen’s wife woke him up between 10:30

p.m. and midnight, and asked him to shut his car windows, because it was raining. Allen’s

house was “catty-corner” from 35 Neal Avenue, where Rednour had been working and staying

intermittently. As Allen came outside, he could hear people talking at 35 Neal Avenue. When

he got where someone could see him, he heard a male voice say “Shh.” Allen then went on to

roll up his windows. Allen saw a man and woman standing on the porch at 35 Neal Avenue.

The man was talking aggressively.

       {¶ 17}   After going inside, Allen went up to his son’s room, where he could look out the

window and see 35 Neal Avenue. He could also see the people on the porch. After satisfying

himself that everything was all right, Allen went on to bed. Allen later identified Rednour and

Paradiso as the people who were on the porch.

       {¶ 18}   After speaking with Allen, the police went to the Food Time Market and spoke

with security guard, Joseph McLaughlin. McLaughlin stated that Paradiso had been coming into

the store every day for two or three months before her death. There were times that Paradiso

came in with a man she called her husband, but for the last month, she had come in with another

man. McLaughlin identified this latter man as Rednour.

       {¶ 19}   On Friday, March 12, 2010, McLaughlin was working 11:00 a.m. to 8:00 p.m.,

and he recalled Rednour and Paradiso coming in at least three times that day. The last time he

saw them in the store was at about 6:30 p.m. that night. They left together and were heading
                                                                                         7


toward Neal Avenue. That was the last time McLaughlin saw Rednour, and Rednour never

came into the store again.

         {¶ 20}   On March 17, 2010, Homicide Detective Gaier placed a locator on Rednour,

indicating that Rednour was a person with whom the police would like to speak. Rednour was a

person of interest, because he was the last person known to have seen Paradiso alive.

         {¶ 21}   The police located Rednour that day, and brought him to the Safety Building for

an interview. The interview began at around 4:15 p.m., and lasted about an hour. It was

conducted in a 6' by 6' interview room that was equipped with a table and chairs. Homicide

Detective DeBorde and one other officer sat in on the interview.         The interview was not

videotaped. At that point, the police just knew Rednour was a person of interest in a suspicious

death.

         {¶ 22}   DeBorde read Rednour his rights, which Rednour waived.           Rednour gave

DeBorde inconsistent stories. Rednour first denied knowing anyone named “Kim.” He then

stated that he had a lot of girlfriends, but did not recall anyone named Kim. When further

questioned about whether he knew anyone named Kim Paradiso, he said he did not think that he

did. Finally, when Rednour was shown a picture of Paradiso, he admitted knowing her, and that

her name was Kim.

         {¶ 23}   Rednour indicated that he had last seen Paradiso on Thursday, March 11, 2010,

when Paradiso had come over to the house on Neal Avenue. According to Rednour, he walked

her to the bus stop that night, and that was the last time that he saw her. Rednour gave the

police conflicting accounts of when Paradiso left that night, and also told different versions of

where he had been on Friday and Saturday. He also indicated that he and Paradiso were just
                                                                                           8


acquaintances, and that they had never had sexual contact.

       {¶ 24}    After about 20 to 25 minutes, the police took a break to regroup. Consistent

with his typical procedure, DeBorde asked Rednour if he would submit a DNA sample.

DeBorde did not specifically say that Rednour could refuse; he told Rednour that the police could

get a court order, and that it is easier when people consent. After this discussion, Rednour let

DeBorde take DNA swabs. The interview then continued for about another half hour, during

which DeBorde confronted Rednour about some of the inconsistencies in his story. Rednour

eventually indicated that he did not wish to speak further, and he was allowed to leave.

       {¶ 25}    The detectives subsequently spoke to Rednour’s employer and girlfriend. In

his interview, Rednour had mentioned them as persons he had seen the weekend of the murder.

However, the police were unable to obtain any evidence verifying Rednour’s whereabouts on

Friday and Saturday.

       {¶ 26}    Subsequently, in May 2010, the coroner formally indicated that the cause of

death was blunt force trauma and strangulation. On August 30, 2010, the detectives received the

DNA results, which showed that Rednour’s saliva was on Paradiso’s breast. The police then

brought Rednour in for questioning again. Rednour’s Miranda rights were administered, and

Rednour waived his rights.

       {¶ 27}    Rednour again denied having any sexual relationship with Paradiso, and said

that the last time he had seen her was on Thursday evening. The officers did not tell Rednour

where his DNA had been found. Rednour was arrested at the end of the interview, and on the

way to the jail, made a spontaneous comment that “Kim had been messing with pimples on his

back and that could’ve been possibly a reason why DNA was available.” Trial Transcript,
                                                                                         9


Volume V, p. 556.

       {¶ 28}    Between August 31, 2010 and September 8, 2010, Rednour and another inmate,

Jason Gentry, were housed in the same wing of the jail. During that time, Rednour confided

details about the murder that had not been released to the public. Rednour asked questions

about DNA, expressed concern about his DNA being under the victim’s fingernails, and related

the same “pimple-popping” story that he had told the police. Rednour admitted to Gentry that

he had killed Paradiso. Rednour also told Gentry that Paradiso did not want to have sex, but that

he had sex with her anyway. In addition, Gentry heard Rednour on the telephone with his

girlfriend, trying to arrange an alibi, but the girlfriend was not cooperating.

       {¶ 29}    After a number of conversations with Rednour, Gentry alerted his family, who

called the police. Gentry then met with Detective Gaier and disclosed what he had been told.

Gentry also testified at trial against Rednour.

       {¶ 30}    After hearing the testimony, including a videotape of Rednour’s second

interview, the jury convicted Rednour on charges of Murder and Felonious Assault. The trial

court then sentenced Rednour to eight years for Felonious Assault and fifteen years to life in

prison for Murder. The court merged the offenses, which resulted in a total sentence of fifteen

years to life in prison. Rednour appeals from his conviction and sentence.



                II. Did the Trial Court Err in Overruling the Motion to Suppress?

       {¶ 31}    Rednour’s First Assignment of Error is as follows:

       The Trial Court Erred in Overruling the Appellant’s Motion to Suppress.

       {¶ 32}    Under this assignment of error, Rednour contends that the trial court erred in
                                                                                              10


failing to suppress statements that were made to the police on August 30, 2010. Rednour argues

that the police ignored his invocation of the right to remain silent. Rednour further contends that

he never properly consented to the seizure of his DNA specimen. We will address these matters

separately.



                               A. The August 30, 2010 Interrogation

       {¶ 33}    As a preliminary matter, we note that in ruling on motions to suppress, “the trial

court assumes the role of the trier of fact, and, as such, is in the best position to resolve questions

of fact and evaluate the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586,

592, 639 N.E.2d 498 (2d Dist.1994), citing State v. Clay, 34 Ohio St.2d 250, 298 N.E.2d 137

(1972). Accordingly, when we review suppression decisions, “we are bound to accept the trial

court's findings of fact if they are supported by competent, credible evidence. Accepting those

facts as true, we must independently determine as a matter of law, without deference to the trial

court's conclusion, whether they meet the applicable legal standard.” Id.

       {¶ 34}    After hearing the evidence at the suppression hearing and viewing the videotape

of the August 30, 2010 interrogation, the trial court concluded that Rednour’s constitutional

rights were not violated because Rednour did not unambiguously articulate that he intended to

remain silent or to end the interview. In particular, the trial court focused on the fact that,

although Rednour stated that he wanted to stop the interview, he continued to talk. He even

talked over police at times.

       {¶ 35}    In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the

United States Supreme Court rejected a “per se proscription of indefinite duration” of further
                                                                                            11


questioning once a person in custody indicates a wish to remain silent. Id. at 103. The Court

noted that:

                A reasonable and faithful interpretation of the Miranda opinion must rest

       on the intention of the Court in that case to adopt “fully effective means . . . to

       notify the person of his right of silence and to assure that the exercise of the right

       will be scrupulously honored . . . .” 384 U.S., at 479, 86 S.Ct., at 1630. The

       critical safeguard identified in the passage at issue is a person's “right to cut off

       questioning.” Id., at 474, 86 S.Ct., at 1627. Through the exercise of his option

       to terminate questioning he can control the time at which questioning occurs, the

       subjects discussed, and the duration of the interrogation. The requirement that

       law enforcement authorities must respect a person's exercise of that option

       counteracts the coercive pressures of the custodial setting.           We therefore

       conclude that the admissibility of statements obtained after the person in custody

       has decided to remain silent depends under Miranda on whether his “right to cut

       off questioning” was “scrupulously honored.” (Italics supplied.) Mosley at

       103-104, quoting Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

       694 (1966).

       {¶ 36}    The Supreme Court subsequently held in Davis v. United States, 512 U.S. 452,

114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), that “if a suspect makes a reference to an attorney that

is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have

understood only that the suspect might be invoking the right to counsel, our precedents do not

require the cessation of questioning.” (Emphasis in original.) Id. at 459. Instead, “the suspect
                                                                                          12


must unambiguously request counsel.” Id.

       {¶ 37}    In State v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001), the Supreme

Court of Ohio concluded that the ruling in Davis also applies to the right to remain silent. Id. at

520.   In this regard, the Supreme Court of Ohio observed that “ ‘[E]very circuit that has

addressed the issue squarely has concluded that Davis applies to both components of Miranda:

the right to counsel and the right to remain silent.’ ” Id., quoting Bui v. DiPaolo, 170 F.3d 232,

239 (1st. Cir.1999). The Supreme Court of Ohio also stressed that:

                Although a suspect “need not ‘speak with the discrimination of an Oxford

       don,’ ” Davis, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371, quoting

       id. at 476, 114 S.Ct. at 2364, 129 L.Ed.2d at 382 (Souter, J., concurring in

       judgment), a suspect “must articulate his or her desire to remain silent or cut off

       questioning ‘sufficiently clearly that a reasonable police officer in the

       circumstances would understand the statement to be’ an invocation of the right to

       remain silent.” State v. Ross (1996), 203 Wis.2d 66, 78, 552 N.W.2d 428, 433,

       quoting Davis, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371; see, also,

       United States v. Mikell (C.A.11, 1996), 102 F.3d 470, 476. If the suspect says

       something that may or may not be an invocation of the right, police may continue

       to question him; they need not treat the ambiguous statement as an invocation or

       try to clear up the ambiguity. (Citations omitted.) (Italics supplied.) Murphy at

       520.

       {¶ 38}    We have listened to the entire videotape of the August 30, 2010 police

interview, which begins with Rednour’s assertion at the very beginning that he wanted a lawyer
                                                                                             13


and did not wish to speak with the police. However, the parties stipulated at the suppression

hearing that this initial invocation of the right to remain silent was cured by the detectives’

actions in explaining Rednour’s rights. After the explanation, Rednour signed the waiver form

and agreed to speak with the detectives.

       {¶ 39}    After about 35 minutes of questioning, Rednour indicated that he thought he

should “shut his mouth.”        However, immediately after making this statement, Rednour

continued talking freely to the detectives. Next, around the 49-minute mark, Rednour stated that

he was “done talking,” because the officers had made up their minds. Again, despite having

made this statement, Rednour continued freely talking to the officers.

       {¶ 40}    At around the 52-minute mark in the videotape, Rednour again invoked his right

to counsel and to remain silent. The parties also stipulated at the suppression hearing that

Rednour had invoked his right to counsel at this latter point, and that no part of the tape after that

point could be used at trial, other than for impeachment purposes.

       {¶ 41}    In Murphy, the suspect stated that, “I'm ready to quit talking and I'm ready to go

home, too.” (Emphasis in original.) Murphy, 91 Ohio St.3d at 521, 747 N.E.2d 765. The

Supreme Court of Ohio concluded that the suspect had not unequivocally asserted his right to

remain silent. Instead, the court reasoned that “What appellant appears to have wanted was to

be released. Talking to the police was a means to that end; he was trying to persuade them that

he was innocent. Thus, his words did not necessarily mean that he wanted to stop talking, no

matter what. If the police were not ready to let him go, he may well have wanted to keep trying to

persuade them of his innocence.” Id.

       {¶ 42}    The same observations apply to the case before us.           Rednour’s statements
                                                                                            14


indicate that his desire to stop speaking was based on the fact that the officers did not believe him

and appeared to have made up their minds. The context of the discussions that occurred

afterward indicate that Rednour continued to attempt to persuade the officers that he was

innocent and had nothing to do with the murder. Accordingly, the trial court did not err in

concluding that Rednour’s statements were ambiguous and did not require the detectives to stop

questioning.



                         B. The Warrantless Search for DNA Evidence

       {¶ 43}    “The Fourth and Fourteenth Amendments to the United States Constitution

prohibit warrantless searches and seizures. Unless an exception applies, warrantless searches

are per se unreasonable.” State v. Cisternino, 8th Dist. Cuyahoga No. 94674, 2010-Ohio-6027,

¶ 12, citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Where the State relies on the consent exemption, it “has the burden of proving that the consent

was, in fact, freely and voluntarily given.” (Citations and footnote omitted.) Bumper v. North

Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

       {¶ 44}    During the interview on March 17, 2010, Rednour allowed the police to take a

buccal swab, which resulted in DNA evidence connecting Rednour to Paradiso’s murder. After

hearing the evidence, the trial court concluded that Rednour gave tacit consent when he opened

his mouth after receiving the request for the swab. The trial court also concluded that Rednour’s

consent had been given freely and without coercion.

       {¶ 45}    “[T]he question whether a consent to a search was in fact ‘voluntary’ or was the

product of duress or coercion, express or implied, is a question of fact to be determined from the
                                                                                          15


totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041,

36 L.Ed.2d 854 (1973). Ohio courts have used the following factors to decide whether a

defendant’s consent to search is voluntary:

       “ ‘(1) the voluntariness of the defendant's custodial status; (2) the presence of

       coercive police procedures; (3) the extent and level of the defendant's cooperation

       with the police; (4) the defendant's awareness of his right to refuse to consent; (5)

       the defendant's education and intelligence; and (6) the defendant's belief that no

       incriminating evidence will be found.’ ” State v. Forrester, 2d Dist. Greene No.

       97-CA-47, 1998 WL 46653, *4 (Feb. 6, 1998), quoting United States v. Shabazz,

       993 F.2d 431, 438 (5th Cir.1993). (Other citation omitted.) Accord, State v.

       Black, 2d Dist. Montgomery No. 23524, 2010-Ohio-2916, ¶ 36-41.

       {¶ 46}    When the swabs were obtained on March 17, 2010, the police were in the early

stages of their investigation, and Rednour was one of about a half-dozen people who were

interviewed. Rednour was also not in custody at the time, although he was a person of interest

in the investigation. No coercive police procedures were used, and the interview was not unduly

long. Rednour was also cooperative with the police. Furthermore, while Rednour had been

educated only through eight grades, his demeanor, as observed in the later interview that was

videotaped, does not demonstrate a lack of intelligence or difficulty in communication or

understanding.

       {¶ 47}    The sixth factor involves whether a defendant believes incriminating evidence

will be found. Since Rednour claimed in both interviews that he had nothing to do with the

crime, one must assume that he did not believe incriminating evidence would be found. Finally,
                                                                                          16


with respect to Rednour’s awareness of his right to refuse to consent, we note that Detective

DeBorde stated that his usual routine is to obtain DNA samples from all persons of interest.

DeBorde generally tells these individuals that if they do not want to provide a sample, he can get

a court order. DeBorde told this to Rednour, and Rednour allowed him to take a sample.

       {¶ 48}    In arguing that the consent was not voluntary, Rednour points to an exchange

during the second interview, in which he disagreed with DeBorde regarding whether the prior

consent to the swabbing was voluntary.        Again, we have reviewed the videotape and the

exchange does not indicate that the consent was involuntary. When the swabbing procedure was

discussed, Rednour acted as if he had not consented, and the detective indicated that Rednour

had, in fact, opened his mouth to let the sample be taken. Rednour agreed that he had opened

his mouth. Rednour may not have spoken the words, “I consent,” but he did allow DeBorde to

take the sample, with his ability to refuse having been implied.

       {¶ 49}    “When an officer informs a suspect that he will obtain a search warrant if the

individual does not consent to a search, this does not necessarily vitiate an otherwise voluntary

consent.” State v. Clark, 2d Dist. Montgomery No. 18314, 2000 WL 1643789, *7 (Nov. 3,

2000), citing United States v. Salvo,133 F.3d 943, 954 (6th Cir.1998), and State v. Clelland, 83

Ohio App. 3d 474, 481, 615 N.E.2d 276 (4th Dist.1992). We noted in Clark that:

                If the officer's statement simply advises the suspect of his precise legal

       situation, such a “threat” is not coercion. However, this requires the officer to be

       confident in his assessment that probable cause exists to issue a search warrant.

       Even if the officer has a good faith expectation that a warrant will issue, if he is

       wrong, he has thereby misinformed the suspect of a key fact that he relied on in
                                                                                           17


       giving his consent. For this reason, if an officer advises a suspect he will obtain a

       search warrant if consent is not given, probable cause must exist to obtain that

       warrant. (Citation omitted.) Id.

       {¶ 50}    In the case before us, DeBorde would have had probable cause to obtain a

warrant for a DNA sample, even though the investigation was in an early stage. Probable cause

has been defined as follows:

                “ * * * ‘[T]he term “probable cause,” according to its usual acceptation,

       means less than evidence which would justify condemnation * * *. It imports a

       seizure made under circumstances which warrant suspicion’ [quoting from Locke

       v. United States (1813), 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364]. More recently,

       we said that ‘the quanta * * * of proof’ appropriate in ordinary judicial

       proceedings are inapplicable to the decision to issue a warrant. Brinegar, 338

       U.S., at 173, 69 S.Ct. at 1309. Finely tuned standards such as proof beyond a

       reasonable doubt or by a preponderance of the evidence, useful in formal trials,

       have no place in the magistrate's decision. * * * [I]t is clear that ‘only the

       probability, and not a prima facie showing, of criminal activity is the standard of

       probable cause.’ Spinelli, 393 U.S., at 419[, 89 S.Ct. at 590–591].” (Citation

       omitted.) (Emphasis in original.) State v. George, 45 Ohio St.3d 325, 329, 544

       N.E.2d 640 (1989), quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317,

       76 L.Ed.2d 527 (1983).

       {¶ 51}    By the time DeBorde interviewed Rednour, there was a probability that Rednour

had committed criminal activity. Although the coroner had not yet issued a final report pending
                                                                                          18


toxicology, DeBorde had attended the autopsy and knew that the coroner’s preliminary findings

included blunt force trauma and strangulation. The victim’s shirt was also pulled up and her

pants were unbuttoned, suggesting some type of sexual assault.          In addition, Deborde had

interviewed two witnesses who placed Rednour with the victim near the time of her death; in

fact, Rednour was the last person known to have seen her alive. Rednour also gave inconsistent

stories about his relationship with the victim and his whereabouts, which would have raised

suspicion.   Under the circumstances, DeBorde would have had probable cause to obtain a

warrant for the DNA sample.

       {¶ 52}     Accordingly, the trial court did not err in concluding that Rednour’s consent to

the search was voluntary.

       {¶ 53}     The First Assignment of Error is overruled.



                III. Did the Trial Court Err in Overruling the Motion for a Mistrial?

       {¶ 54}     Rednour’s Second Assignment of Error is as follows:

                The Trial Court Erred in Overruling Appellant’s Motion for a Mistrial.

       {¶ 55}     Under this assignment of error, Rednour challenges the trial court’s decision not

to order a mistrial. The motion for mistrial was based on the fact that the jury may have learned

on the third day of trial about the death of a prosecutor’s step-father. According to Rednour, this

caused the jury to feel sympathy toward the State that could not be undone by the limiting

instruction the trial court administered.

       {¶ 56}     “Mistrials need be declared only when the ends of justice so require and a fair

trial is no longer possible.” (Citations omitted.) State v. Franklin, 62 Ohio St.3d 118, 128, 580
                                                                                            19


N.E.2d 1 (1991). In addition, “[t]he determination of whether to grant a mistrial is within the

sound discretion of the trial court.” (Citation omitted.) State v. Brown, 100 Ohio St.3d 51,

2003-Ohio-5059, 796 N.E.2d 506, ¶ 42.          The trial court’s decision, therefore, will not be

reversed unless the court abused its discretion. Id. An abuse of discretion occurs when the trial

court has acted arbitrarily, unreasonably, or unconscionably.        (Citations omitted.)   State v.

Adams, 62 Ohio St.2d 151, 158, 404 N.E.2d 144 (1980).

       {¶ 57}    On the third day of trial, at about 2:30 p.m., the State requested a recess for the

rest of the day, because the stepfather of one of the prosecutors had passed away. This request

was made out of the jury’s presence. The defense agreed, and the court recessed the case until

the next morning.

       {¶ 58}    The following morning, defense counsel indicated that his understanding was

that information about the death may have been communicated to the jurors. There was no

suggestion that the State had committed misconduct. Defense counsel moved for a mistrial, due

to a concern that the incident may have caused jurors to have sympathy for the State. The State

disagreed, and asked the court to give a curative instruction instead.

       {¶ 59}    After considering the matter, the trial court gave a limiting instruction to the

jury, stating that the jury must make its decision on the evidence and not upon any sympathy it

might feel for any party, witness, or attorney. See Trial Transcript, Volume V, p. 492. In

addition, the court asked the jurors to affirm that their duty was to make a decision based on the

evidence and the law they received in court. Id.

       {¶ 60}    Under the circumstances, the trial court did not abuse its discretion in failing to

declare a mistrial. The jury was properly instructed to follow the law and evidence, and “[a] jury
                                                                                             20


is presumed to follow the instructions, including curative instructions, given it by a trial judge.”

(Citations omitted.) State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995).                  The

prospect of the issue affecting the jury was not significant enough to require a mistrial.

       {¶ 61}    Accordingly, the Second Assignment of Error is overruled.



                    IV. Did Defense Counsel Render Ineffective Assistance?

       {¶ 62}    Rednour’s Third Assignment of Error states that:

                Appellant Was Denied His Constitutionally Guaranteed Right to Effective

       Assistance of Counsel When Trial Counsel Failed to Properly Lay a Foundation

       for Impeaching a State’s Witness and Properly Challenging the Time-Line of

       State’s Witnesses.

       {¶ 63}    Under this assignment of error, Rednour contends that trial counsel was

ineffective during an attempt to impeach the testimony of a witness, Joseph McLaughlin.

Specifically, defense counsel asked Detective Gaier about statements McLaughlin had made,

rather than asking McLaughlin about the point during cross-examination.

       {¶ 64}    Rednour also argues that defense counsel was ineffective by failing to lay an

evidentiary foundation during cross-examination of key prosecution witnesses, which would

allegedly have established inconsistencies in the timeline of events. According to Rednour, this

failure caused prejudice because the issue of “when” Rednour and Paradiso were seen together

was crucial to the State’s case.

       {¶ 65}    “In order to prevail on a claim of ineffective assistance of counsel, the defendant

must show both deficient performance and resulting prejudice.            Strickland v. Washington
                                                                                        21


(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Trial counsel is entitled to a strong

presumption that his conduct falls within the wide range of effective assistance, and to show

deficiency, the defendant must demonstrate that counsel's representation fell below an objective

standard of reasonableness. Id.” State v. Matthews, 189 Ohio App.3d 446, 2010-Ohio-4153,

938 N.E.2d 1099, ¶ 39 (2d Dist.).

       {¶ 66}    According to the coroner, Paradiso’s state of rigor mortis was consistent with

Paradiso having died on Saturday, March 13, 2010, during the early morning hours, or on Friday

evening, March 12, 2010. At trial, McLaughlin, the security guard at Food Time Market,

testified that he had seen Rednour and Paradiso together three times at the store on March 12,

2010, with the last time being around 6:30 p.m.

       {¶ 67}    Detective Gaier interviewed McLauglin on March 16, 2010. During Gaier’s

cross-examination, defense counsel asked Gaier if March 12, 2010 were the same date that he

had put in his report regarding his interview of McLaughlin. Trial Transcript, Volume VI, p.

725. The State objected on grounds that this was improper impeachment, because the defense

failed to lay a foundation with McLaughlin. In response to the objection, defense counsel made

the following statement:

                “Your honor, with respect to the impeachment, Mr. McLauglin’s

       testimony is what it is.

                My issue is more regarding credibility that deals with Detective Gaier’s

       recollection of events and corrections (indiscernible) made.” Id. at p. 726.

       {¶ 68}    After the trial court sustained the objection, defense counsel moved on to other

matters and did not proffer the police report. The police report was not admitted at trial, and
                                                                                            22


there is no evidence about what the report specifically said. As a result, we have no basis upon

which to conclude that the evidence would have been relevant. See, e.g., State v. Payne, 2d

Dist. Greene No. 95-CA-49, 1996 WL 86229, *4 (March 1, 1996) (noting that an appellate court

cannot speculate on the content of evidence, where the record is “completely devoid of any

indication of the content of the testimony or the documentary evidence * * *.” )

       {¶ 69}    The second ground for the ineffective assistance of counsel claim relates to

defense counsel’s alleged failure to effectively establish that the evidence linking Paradiso and

Rednour was inconsistent and flawed. As was noted, the coroner could not estimate the precise

time of death, but stated that the rigor mortis findings were consistent with Paradiso having died

in the early morning hours of March 13, 2010, or on the night of March 12, 2010.

       {¶ 70}    Contrary to her usual practice, Paradiso did not return to her room at the YWCA

before curfew, and the last time Paradiso’s roommate saw her was on the morning of March 12.

The security guard saw Paradiso and Rednour three times on March 12, with the last time being

6:30 p.m. He never saw either Paradiso or Rednour after that – once again, contrary to the usual

course of events, as he had seen them both in the store consistently over the past month.

       {¶ 71}    Artis Allen, who lived across the street from the house where Rednour had been

staying, placed both Paradiso and Rednour on the front porch of Rednour’s house on the night of

either Friday, March 12, or Saturday, March 13, between 10:30 p.m. and midnight. Allen had

also seen them both together twice earlier that day, once at Food Time Market, and once at UDF.



       {¶ 72}    The above testimony is not inconsistent, nor is it flawed. Even if Allen could

not pinpoint whether he saw the couple together on Friday or Saturday night, that would not
                                                                                           23


assist Rednour – because the other evidence indicates that Paradiso was murdered on one of

those days. The critical point is that Rednour was the last person seen with Paradiso when she

was alive, and there was no dispute about this fact.

        {¶ 73}    Accordingly, we see no error or lapse on the part of defense counsel’s

representation. The Third Assignment of Error is overruled.



                             V. Was the Jury’s Verdict Against the

                                Manifest Weight of the Evidence?

        {¶ 74}    Rednour’s Fourth Assignment of Error states that:

                 The Jury’s Verdicts Should Be Reversed as They Were Against the

        Manifest Weight of the Evidence.

        {¶ 75}    Under this assignment of error, Rednour contends that the jury’s verdict was

against the manifest weight of the evidence, because there allegedly was no evidence to support

the verdict.

        {¶ 76}    “When a conviction is challenged on appeal as being against the weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine whether, in resolving conflicts in the

evidence, the trier of fact ‘clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.’ ”           State v. Hill, 2d Dist.

Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997). “A judgment should be reversed as being against the manifest

weight of the evidence ‘only in the exceptional case in which the evidence weighs heavily against
                                                                                           24


the conviction.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶ 77}    We have reviewed the entire record, including the transcript of the jury trial, and

do not find that this is the exceptional case in which the evidence weighs heavily against the

conviction. As has been stressed, Rednour was the last person seen with Paradiso when she was

alive, and the time frames fit within the time that Paradiso was murdered.             In addition,

Rednour’s DNA was found on Paradiso’s breast, and is consistent with some type of sexual

assault or at the least, with sexual activity. This evidence contradicts Rednour’s initial claim

that he had no sexual contact with Paradiso. The State also presented the testimony of a jail

inmate, who indicated that Rednour had confessed to having had sexual relations with Paradiso

against her will, and had also confessed to the murder.

       {¶ 78}    Rednour contends that testimony from an inmate lacks credibility, but there is

no suggestion in the record that the inmate received any special consideration for his testimony;

in fact, he testified that he did not. The testimony that lacks credibility belongs to Rednour, as

the statements he made to the police were completely contradictory, and are not supported by

other evidence in the record.

       {¶ 79}    Admittedly, there were no direct witnesses to the murder, but that would be true

of many other situations as well. The evidence was largely circumstantial. However, the Ohio

Supreme Court has stressed that:

                Circumstantial evidence and direct evidence inherently possess the same

       probative value.    In some instances certain facts can only be established by

       circumstantial evidence.     Hence, we can discern no reason to continue the
                                                                                               25


       requirement that circumstantial evidence must be irreconcilable with any

       reasonable theory of an accused's innocence in order to support a finding of guilt.

       We agree with those courts that have held that an additional instruction on the

       sufficiency of circumstantial evidence invites confusion and is unwarranted.

       Since 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 it

       weigh all of the evidence, direct and circumstantial, against the standard of proof

       beyond a reasonable doubt. Nothing more should be required of a factfinder.

       (Citations omitted.) State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492

       (1991), superseded on other grounds by constitutional amendment, as stated in

       State v. Smith, 80 Ohio St.3d 89, 103, n. 4, 684 N.E.2d 668 (1997).

       {¶ 80}    In view of the above discussion, the jury did not clearly lose its way and create a

manifest miscarriage of justice. Accordingly, the verdict was not against the manifest weight of

the evidence, and Rednour’s Fourth Assignment of Error is overruled.



                       VI. Did the State Fail to Supply Sufficient Evidence

                       as to All Elements Necessary to Sustain the Verdict?

       {¶ 81}    Rednour’s Fifth Assignment of Error is as follows:

                The Trial Court Erred by Overruling Appellant’s Motion for Acquittal

       Since the State Failed to Supply Sufficient Evidence as to All the Elements

       Necessary to Support the Charges Against the Defendant.

       {¶ 82}    Under this assignment of error, Rednour contends that the trial court erred in
                                                                                           26


overruling his motion for acquittal, because there was no credible evidence to support the charges

against him. We disagree.

       {¶ 83}     “Sufficiency and manifest-weight challenges are separate and legally distinct

determinations.” State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 17

(2d Dist.), citing Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. “ ‘While the test for

sufficiency requires a determination of whether the state has met its burden of production at trial,

a manifest weight challenge questions whether the state has met its burden of persuasion.’ ”

Hatten at ¶ 17, quoting State v. Adelman, 9th Dist. Summit No. 18824, 1998 WL 852565, *7

(Dec. 9, 1998).

       {¶ 84}     We noted in Hatten that:

                A sufficiency-of-the-evidence argument challenges whether the state has

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

       go to the jury or to sustain the verdict as a matter of law. Thompkins, 78 Ohio

       St.3d at 386, 678 N.E.2d 541. Under a sufficiency analysis, an appellate court

       does not make any determinations regarding the credibility of witnesses. “An

       appellate court's function when reviewing the sufficiency of the evidence to

       support a criminal conviction is to examine the evidence admitted at trial to

       determine whether such evidence, if believed, would convince the average mind

       of the defendant's guilt beyond a reasonable doubt.         The relevant inquiry is

       whether, after viewing the evidence in a light most favorable to the prosecution,

       any rational trier of fact could have found the essential elements of the crime

       proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259,
                                                                                          27


       574 N.E.2d 492, paragraph two of the syllabus. (Citations omitted.) Hatten at ¶

       18.

       {¶ 85}    Rednour was charged in Count One of the indictment with having caused death

to another while committing Felonious Assault in violation of R.C. 2903.11(A)(1). That statute

provides, in pertinent part, that “No person shall knowingly * * * [c]ause serious physical harm

to another or to another's unborn * * *.” Count Two charges Rednour with having knowingly

caused serious physical harm to another in violation of the same statute, R.C. 2903.11(A)(1).

       {¶ 86}    After viewing the evidence in a light most favorable to the State, we conclude

that any rational trier of fact could have found the essential elements of these crimes proven

beyond a reasonable doubt. As was noted, the State submitted significant amounts of evidence

connecting Rednour to the crime, and Rednour’s statements were inconsistent and frankly, gave

the appearance of being untruthful.      The trial court, therefore, did not err in overruling

Rednour’s motion for acquittal.

       {¶ 87}    Rednour’s Fifth Assignment of Error is overruled.



                 VII. Did the Trial Court Err in Failing to Address Court Costs?

       {¶ 88}    Rednour’s Sixth Assignment of Error, filed in a Supplemental Brief, states that:

                The Trial Court Erred When It Failed to Address the Imposition of Court

       Costs in Open Court, and Then Included Court Costs in the Trial Court’s

       Termination Entry.

       {¶ 89}    Under this assignment of error, Rednour contends that the trial court erred in

imposing costs in its termination entry, because the court failed to address court costs during the
                                                                                           28


sentencing hearing. The State concedes error in this regard, citing State v. Dudley, 2d Dist.

Montgomery No. 24408, 2012-Ohio-3844. We agree that error occurred.

       {¶ 90}    In Dudley, we noted that:

                “Although a judge has discretion to waive court costs assessed against an

       indigent defendant, such a person ordinarily ‘must move a trial court to waive

       payment of costs at the time of sentencing.        If the defendant makes such a

       motion, then the issue is preserved for appeal and will be reviewed under an

       abuse-of-discretion standard. Otherwise, the issue is waived and costs are res

       judicata.’ ”    State v. Lunsford, 193 Ohio App.3d 195, 2011-Ohio-964, 951

       N.E.2d 464, ¶ 14 (2d Dist.), quoting State v. Threatt, 108 Ohio St.3d 277,

       2006-Ohio-905, 843 N.E.2d 164, ¶ 22.             “The Ohio Supreme Court has

       recognized an exception, however, when a trial court fails to mention court costs

       during a sentencing hearing. A trial court errs in failing to tell a defendant at

       sentencing that it is imposing court costs.” Id. at ¶ 15, citing State v. Joseph, 125

       Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 22. “The error is not harmless

       because it deprives the defendant of an opportunity to contest the imposition of

       court costs.” Id. “Under such circumstances, principles of waiver and res judicata

       do not apply.” (Citation omitted.) (Italics supplied.) Dudley at ¶ 9.

       {¶ 91}    The trial court imposed court costs in the termination entry, but did not address

the matter at the sentencing hearing. As a result, the Sixth or Supplemental Assignment of Error

has merit and is sustained. This matter will be remanded for the limited purpose of allowing

Rednour to seek a waiver.
                                                                                         29


        {¶ 92}   We also note, after reviewing the termination entry, that the trial court

incorrectly imposed a concurrent eight year prison sentence and three years of post-release

control for the Felonious Assault charge contained in Count Two. This was ordered merged

with the Murder charge. However, imposition of concurrent sentences fails to merge allied

offenses. State v. Fair, 2d Dist. Montgomery No. 24120, 2011-Ohio-3330, ¶ 78. Subsequent to

merger, only the guilty verdict remains regarding the merged charge. State v. Whitfield, 124

Ohio St.3d 319, 2010-Ohio-2, 922 N.E. 2d 182, ¶ 26-27. The trial court can correct the error on

remand at the new sentencing hearing, which will be limited to addressing costs and correction of

the merger. State v. Saxton, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph

three of the syllabus, and State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381,

¶ 15.



                                        VIII. Conclusion

        {¶ 93}   Rednour’s First, Second, Third, Fourth, and Fifth Assignments of Error having

been overruled, and the Sixth or Supplemental Assignment of Error having been sustained, the

judgment of the trial court is Affirmed in part, is Reversed in part, and is Remanded to the trial

court for further proceedings consistent with this opinion.



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

FAIN, P.J., concurs.

HALL, J., concurring.


        {¶ 94} I agree with the reasoning and the conclusions of my colleagues. I write
                                                                                         30


separately to express my opinion only as to the method to resolve the two errors we have found.

       {¶ 95} With regard to the assessment of court costs in the judgment entry, without

having orally announced the imposition of costs at sentencing, thereby depriving the defendant

the opportunity to seek a waiver of costs, I believe a recent statutory amendment provides a

solution. R.C. 2947.23(C), effective 3-22-2013, provides “The court retains jurisdiction to waive,

suspend, or modify the payment of the costs of prosecution, including any costs under section

2947.231 of the Revised Code, at the time of sentencing or at any time thereafter.” Accordingly I

would remand to allow the trial court to have the defendant submit a written motion for waiver of

costs, rather than to require undesirable prisoner transportation.

       {¶ 96} With regard to the prison sentence for the merged felonious assault count, I

would vacate that sentence and have the trial court create a new judgment entry so that there will

be no misinterpretation by the Ohio Department of Rehabilitation and Corrections.


Copies mailed to:

Mathias H. Heck
R. Lynn Nothstine
Marshall G. Lachman
Hon. Frances E. McGee

Case Name:     State of Ohio v. Gary R. Rednour
Case No:               Montgomery App. No. 25135
Panel:                 Fain, Hall, Welbaum
Author:                Jeffrey M. Welbaum
Summary:
