[Cite as State v. Andrews, 2020-Ohio-2703.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.      29260

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
WAYNE ANDREWS                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 17 12 4300

                                 DECISION AND JOURNAL ENTRY

Dated: April 29, 2020



        TEODOSIO, Judge.

        {¶1}    Defendant-Appellant, Wayne Andrews, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}    Late one evening, R.H. frequented two bars in Highland Square. She left the bars

around 2:20 a.m. and, just after 5:20 a.m., the police discovered her passed out behind the wheel

of her car at the intersection of Killian and South Arlington Roads. The police transported R.H.

to the station, administered a breathalyzer, and determined that she was highly intoxicated. R.H.

openly sobbed while being interviewed and mentioned several times that someone had threatened

to hurt her. She also mentioned that a man had taken her keys and pushed her inside her car. The

police did not press her for any details about her statements, however, as both her level of

intoxication and emotional state detracted from the clarity of her statements. Once the officers

finished questioning her, they made sure she had a ride home and impounded her car.
                                                 2


       {¶3}    Later in the evening that same day, R.H. contacted the police to report that a man

had attacked her when she left the bars at Highland Square. She ultimately reported that the man

had followed her to her car, taken her keys, driven her around against her will, and forced her to

perform oral sex. She recalled waking up on a couch in an unfamiliar house with no memory of

exiting her car or being brought inside. She further recalled grabbing her scattered belongings,

going outside, finding her car, and driving off. Finally, she recalled being woken by the police

when they found her passed out behind the wheel.

       {¶4}    R.H. did not know the name of the man who attacked her and was only able to

provide the police with limited details about his appearance. She submitted to a sexual assault

examination, however, and male DNA was discovered on her arms, on her neck, and on a beer

bottle the police found inside her car. Forensic analysts then searched a law enforcement database

for matching profiles and determined that Mr. Andrews could not be excluded as the source of the

DNA they had discovered. After speaking with him and investigating further, the police arrested

him in connection with R.H.’s abduction.

       {¶5}    A grand jury indicted Mr. Andrews on one count of kidnapping, one count of rape,

three counts of abduction, and two counts of sexual battery. The State dismissed one abduction

count before trial, and the remaining counts were tried to a jury. After extended deliberations, the

jury returned a partial verdict. It found Mr. Andrews not guilty of kidnapping, guilty of two counts

of abduction, and guilty of one count of sexual battery. It was unable to reach a verdict on the

remaining counts of rape and sexual battery. Those counts were later dismissed at the State’s

request.

       {¶6}    The trial court sentenced Mr. Andrews to five years in prison on his sexual battery

count and three years in prison on each of his abduction counts. It ordered the prison term on his
                                                  3


sexual battery count to run consecutively with the prison term on one of the abduction counts. It

ordered the prison term on the remaining abduction count to run concurrently with that sentence.

Consequently, Mr. Andrews received a total sentence of eight years in prison.

       {¶7}    Mr. Andrews now appeals from his convictions and raises four assignments of error

for our review. For clarity of review, we rearrange his assignments of error.

                                                  II.

                              ASSIGNMENT OF ERROR THREE

       WAYNE ANDREWS WAS DENIED DUE PROCESS BECAUSE HIS
       CONVICTIONS FOR SEXUAL ASSAULT AND ABDUCTION WERE
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
       OF THE 5TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION
       AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶8}    In his third assignment of error, Mr. Andrews argues that his convictions are against

the manifest weight of the evidence. We disagree.

       {¶9}    This Court has stated:

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence and
       all reasonable inferences, consider the credibility of witnesses 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth

juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.” State v. Tucker,

9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary power “should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio

App.3d 172, 175 (1st Dist.1983). See also Otten at 340.
                                                 4


       {¶10} R.H. testified that she drove herself to Highland Square late one evening to frequent

two bars where she knew either the bartender or the manager. She parked on a side street off a

back alley to the bars and estimated that she arrived at the first bar around 11:30 or 11:45 p.m. She

indicated that she ordered two shots and a beer at the first bar before walking over to the second

bar and ordering two mixed drinks. She shared at least one of the drinks with a friend and spent

time socializing with a few people at each bar while she enjoyed her drinks. After closing her tab

at the second bar, she returned to the first bar and stayed a bit longer before deciding it was time

to leave. Realizing that she had consumed too many drinks to drive, she tried calling a friend who

lived nearby to see if she could walk to his house. The friend did not answer, however, so R.H.

decided she would sleep in her car for a while. She then exited through the back door of the bar,

took out her keys, and walked through the back alley towards her car.

       {¶11} R.H. testified that, as she was walking to her car, a man came up behind her and

snatched her keys from her hand. The man demanded that she get into her car, and R.H., who was

terrified, entered the car and slid over to the passenger’s side. Recordings from two cameras facing

the alley behind the bars captured R.H. walking to her car, and the State introduced those

recordings during its case-in-chief. The recordings depicted R.H. leaving the bar at 2:23 a.m.

They showed a man walking several feet behind her and quickly closing the gap between them as

he followed her. They further showed the man pulling even with her just as she walked past the

corner of a building and disappeared from view.

       {¶12} R.H.’s memories of the remainder of her evening were fragmented. She recalled

the man driving her around in circles for a long while as she pleaded to be let go. She recalled

breaking her special keychain (i.e., a Pokemon ball) when she unsuccessfully tried grabbing for

her keys. She recalled trying to use her cell phone more than once and the man either smacking it
                                                 5


from her hand or slamming on the brakes, causing her to hit her forehead on her dashboard. She

also recalled him pouring a beer on her and repeatedly calling her a “crazy, stupid, drunk bitch.”

R.H. testified that she carried a knife in her purse whenever she went out alone. She remembered

removing the knife from her purse and unsheathing it to try to deter the man. The man took the

knife from her, however, and R.H. could not remember what happened to it after he did so.

       {¶13} R.H. testified that, at some point, the man pulled to the side of the road and forced

her to perform oral sex. She explained that she did not try to escape when the car stopped because

she did not know where they were and was too scared. She described how the man grabbed the

back of her neck and pulled her down to where he had exposed his penis. She did not know how

long the oral sex lasted and stated that, after a while, everything went dark. She next recalled

waking up on a small couch in a strange house. Although she was still wearing her pants and bra,

her shirt had been removed and she was not wearing any shoes. R.H. testified that she found her

shirt on the floor next to her, her purse scattered on a nearby table, and her keys on a counter by

the door. After grabbing her things, she fled through the back door, walked around the house, and

spotted her car. She then drove away. R.H. testified that, shortly thereafter, everything went dark

again, and she next remembered the police waking her up.

       {¶14} A few minutes after 5:20 a.m., Deputy Michael Conley pulled behind R.H.’s car at

the intersection of Killington and South Arlington Roads. The car did not move when the light

turned green, so the deputy activated his lights. He testified that the lights appeared to wake the

driver, who then pulled off to the side of the road. Upon his approach, the deputy found R.H.

behind the wheel. He testified that she was crying, extremely upset, and noticeably intoxicated.

As to the latter, he stated that she was emitting a strong odor of alcohol, slurring her speech, and
                                                   6


making little sense. After she failed the field sobriety tests he administered at the scene, he took

her to the police station and had her car towed.

       {¶15} Deputy Conley testified that R.H. took a breathalyzer at the police station and the

test revealed that her blood alcohol content was more than three times the legal limit. He confirmed

that she remained extremely upset throughout their interview, even after he told her that she would

be released. The State played R.H.’s recorded interview for the deputy and, upon review, he agreed

that she had said a few things about someone taking her keys and threatening to hurt her. Yet, it

was not his opinion that she had been trying to tell him something important. The deputy testified

that it was difficult for him to understand R.H. and “it just sounded like she was mumbling and

blubbering” in the manner of intoxicated individuals. He stated that R.H. never said who had hurt

her and, when he asked where she had been for the last few hours, she had said she was with

friends. Believing that she was simply intoxicated, the deputy released her at the conclusion of

their interview.

       {¶16} R.H. testified that she spoke with her mother later that evening, and her mother

convinced her to report the sexual assault. She then called the police, and a detective came to her

home to take her statement and transport her to the hospital for an exam. The attending physician

and the sexual assault nurse examiner who met with R.H. both testified. The physician indicated

that R.H. arrived at 10:09 p.m. and reported that an unknown man had forced her into her car, had

driven her to an unfamiliar area, and had forced her to perform oral sex on him. The physician

noted that R.H. had a bruise to her right forehead and an abrasion on her right arm. R.H. did not

have any other visible injuries, but the nurse examiner testified that sexual assaults commonly

occur without injury. The nurse examiner stated that R.H. was tearful throughout their interview,

as she described how she was abducted and sexually assaulted. She testified that they took a urine
                                                 7


sample from R.H. because R.H. did not believe that she had consumed enough alcohol to warrant

her level of intoxication and the blackout periods she had experienced. Though R.H. did not test

positive for the drug commonly associated with sexual assaults (i.e., GHB), the attending physician

testified that the drug is undetectable after about four to six hours. By the time R.H. was tested, a

much longer time period had elapsed.

       {¶17} Several witnesses testified regarding the observations they made about R.H. while

she was at the bars at Highland Square. The manager of the first bar, who was R.H.’s long-time

friend, recalled serving her roughly three drinks while she was at his bar. He testified that he

recalled her coming to the bar, leaving at some point, and returning later that evening. He further

testified that she was alone each time and did not appear to be intoxicated the last time that he saw

her. The manager at the second bar was familiar with R.H. as a regular customer and recalled

serving her two drinks that evening. The DJ at that same bar was a good friend of R.H.’s and

testified that she chatted with him that evening and did not appear to be intoxicated. Both the

manager and the DJ at the second bar were familiar with Mr. Andrews, as he often sang karaoke

there on Monday evenings. The manager recalled Mr. Andrews being at the bar that night, but

never saw him talking to R.H. Likewise, the DJ never saw R.H. and Mr. Andrews together.

       {¶18} Detective Brian Breeden became the lead investigator in this matter once the

Summit County Sheriff’s Department inherited the investigation. As part of his investigation, the

detective secured three video-recordings of interest. Two of the recordings, previously discussed

herein, depicted R.H. leaving the bars at 2:23 a.m. and a man pursuing her from behind. The third

recording depicted the sidewalk in front of the bars. It showed a man walking into view at 1:38

a.m. and approaching two females who were standing outside. One of the females appeared visibly

intoxicated, and, as she stumbled around, the man approached her and attempted to lead her away.
                                                 8


The other female then repeatedly attempted to separate the two by inserting herself between the

man and her intoxicated friend. Once the second female succeeded in separating her friend from

the man, she led her friend away. The man then briefly looked at his cell phone before entering

the bar at 1:48 a.m. Detective Breeden testified that the man depicted in the third recording was

the same one who followed R.H. into the back alley 35 minutes later (i.e., Mr. Andrews).

       {¶19} Because R.H.’s car was impounded upon her arrest, Detective Breeden was able to

have it towed to the crime lab for processing. Inside the car, the police found R.H.’s purse and,

inside the purse, they found a knife sheath. No knife was found inside the car, but the police did

find a little ball keychain that appeared to have been broken off. They also found a Miller High

Life beer bottle, which they sent to the Bureau of Criminal Investigation (“BCI”) for testing.

       {¶20} Forensic analysts from BCI swabbed the beer bottle found in R.H.’s car. They also

received the swabs taken during her sexual assault exam. The analyst who tested those items

testified that the swabs taken from the back of R.H.’s neck, her right forearm, and her left forearm

all contained a mixture of two DNA profiles. The first profile was consistent with R.H.’s profile,

and the second was consistent with Mr. Andrews’ profile. Likewise, swabs taken from the outside

and mouth of the beer bottle contained two profiles that were consistent with R.H.’s profile and

Mr. Andrews’ profile. Detective Breeden testified that it was the DNA results that allowed him to

identify Mr. Andrews as a person of interest.

       {¶21} Detective Breeden spoke with Mr. Andrews three times during his investigation.

Their first conversation took place over the phone and occurred eight weeks after R.H.’s abduction.

Their second conversation also took place over the phone and occurred about two weeks later.

Finally, their third conversation occurred one day after that, at the police station, following Mr.

Andrews’s arrest.
                                                 9


       {¶22} Detective Breeden indicated that Mr. Andrews did not remain consistent when

recounting the details of his evening on the night in question. Mr. Andrews initially told the

detective that he had been living in California for the last sixth months and had not even been to

Ohio. When the detective told him there was a video-recording placing him at the scene, however,

Mr. Andrews recalled that he had been to Highland Square, but had left with a friend, B.C., around

midnight. He recalled being introduced to a girl at the bar, but he denied taking her car or engaging

in any inappropriate touching.

       {¶23} After Detective Breeden informed Mr. Andrews that his DNA had been found on

R.H., Mr. Andrews remembered her. He claimed that she had used a different name to introduce

herself, but he accurately described her appearance and her car. Mr. Andrews told the detective

that R.H. sat on his lap at the bar and they kissed, but he denied any additional physical contact.

He described R.H. as extremely intoxicated and said that she either snorted some type of narcotic

or took some type of a pill at the bar. Nevertheless, he claimed that he then accepted a ride from

her because they were both ready to leave at the same time. He stated that R.H. drove and he

quickly became concerned for his safety as a result of her erratic behavior. He described how she

pulled out a knife out at one point and told him she had used it to cut people. According to Mr.

Andrews, he began taking videos of R.H. with his phone in case something happened to him. Mr.

Andrews was never able to provide the detective with those videos, however, as he said he had

taken them on his old phone and could not retrieve them. When asked about the beer bottle the

police found in the car, Mr. Andrews claimed that it belonged to R.H. and that he never drank beer.

       {¶24} Late during his second interview, Mr. Andrews admitted that he drove R.H.’s car

for a short while. He claimed that they stopped at a gas station, and he got out of the car because

R.H. was driving so erratically and waving around her knife. He claimed that he took the knife
                                                10


from her and disposed of it somewhere in that area. He then convinced her to let him drive for a

while so that he could safely arrive at his destination. According to Mr. Andrews, he drove the

car to a spot near the intersection of Arlington and East Market Streets before he got out, walked

for a bit, and got an Uber to take him to his friend P.Y.’s house. During his final interview, he

stopped altogether denying that he and R.H. engaged in oral sex in the car. Instead, he indicated

that he could not say whether the oral sex had occurred because he too had been drinking and

things were blurry. He did state several times, however, that R.H. was the one who came on to

him.

       {¶25} Detective Breeden spoke with Mr. Andrews’ friend, P.Y., but she was unable to

confirm that he came to her house that evening. The detective also was unable to confirm that Mr.

Andrews had been at a gas station with R.H. He testified that he watched all the available

recordings from that gas station around the times Mr. Andrews possibly could have been there, but

none of the recordings showed him, R.H., or her car. Further, the detective was unable to find any

record of Mr. Andrews having ordered an Uber at the time he claimed to do so. The only Uber

that Mr. Andrews ordered that morning was at 6:17 a.m., almost one full hour after the police

found R.H. in her car.

       {¶26} Mr. Andrews relied on cross-examination at trial and did not testify in his own

defense. On cross-examination, R.H. admitted that her testimony was not entirely consistent with

her prior statements. For example, she acknowledged that she did not immediately disclose all of

the details of her abduction and/or sexual assault when initially being interviewed. She also agreed

that she may have been mistaken about certain details, such as how far she was from her car when

Mr. Andrews took her keys or whether he was wearing a watch. Although R.H. claimed that she

never saw Mr. Andrews before he accosted her, the defense was able to show that his cell phone
                                                11


number appeared as an incomplete, incoming call on her cell phone at 2:09 a.m. R.H. could not

explain why his number appeared in her phone records. Nor could she explain why her urine

screen detected cocaine in her system. Finally, she could not explain why her DNA was found on

the mouth of the beer bottle in her car, given her testimony that it was not her beer and that she

never drank that kind of beer.

       {¶27} Mr. Andrews argues that the jury lost its way when it convicted him because R.H.’s

statements lacked credibility and the evidence weighed more heavily in favor of the conclusion

that he did not engage in any illegal conduct. He notes that R.H.’s testimony was contrary to the

physical evidence and inconsistent, as her story evolved each time she was interviewed by a

different person. He points to the evidence that, at first, she told the police she had been with

friends for a few hours before her arrest. He also points to the evidence that she was highly

intoxicated and had cocaine in her system. Mr. Andrews argues that the evidence he called R.H.’s

cell phone before they left the bar belied her claim that she had never met him. Further, he argues

that the appearance of her DNA on the mouth of the beer bottle in her car belied her claim that she

had not been drinking from it. Because R.H. was an unreliable witness and her testimony was the

only evidence the State produced in support of his convictions, Mr. Andrews argues that his

convictions are against the manifest weight of the evidence.

       {¶28} Having reviewed the record, we cannot conclude that the jury clearly lost its way

when it found Mr. Andrews guilty of abduction and sexual battery. See Otten, 33 Ohio App.3d at

340. Without a doubt, there were certain inconsistencies in R.H.’s testimony. She did not

immediately disclose everything that happened, and she had difficulty recalling various details.

Yet, she explained that she was disoriented when she initially spoke with the police and struggling

with the realization that she had been sexually assaulted. The recording of her initial interview
                                                12


showed her hyperventilating at certain points and openly sobbing for the duration of the interview.

Moreover, it captured her saying more than once that someone had threatened to hurt her and had

taken her keys. The State presented the testimony of an expert in trauma counseling who testified

that it is common for victims of sexual assault to delay reporting and to experience guilt and/or

shame in connection with their assault. The expert also testified that trauma negatively impacts

memory and victims can have difficulty describing their experiences. Accordingly, the jury

reasonably could have concluded that R.H.’s level of intoxication, in conjunction with the trauma

she experienced, made it difficult for her to recall the exact order of the events that occurred or

certain, specific details.

        {¶29} Although R.H. was not entirely consistent in her recounting of the events, the State

presented physical evidence to corroborate her testimony. R.H. said she slammed her head on her

dashboard when Mr. Andrews braked too hard, and she had a bruise on her forehead in that

location. She said that Mr. Andrews grabbed the back of her neck as he pulled her down to perform

oral sex, and his DNA was found at that location. She said that her Pokemon keychain broke when

she tried to grab for her keys, and the police found the broken keychain inside her car. Finally,

she said that Mr. Andrews took her knife from her after she unsheathed it, and the police found the

sheath, but not the knife, when searching her car.

        {¶30} While Mr. Andrews’ cell phone number appeared in R.H.’s phone records, her

phone records also showed that she Googled the non-emergency number for the Akron Police

Department and placed two calls to that number at 4:30 a.m. Detective Breeden testified that the

non-emergency number only connected a caller to an automated system, but the jury reasonably

could have concluded that R.H. attempted to contact the police because she needed help. Further,

the jury reasonably could have rejected Mr. Andrews’ version of the events, given that it also
                                                  13


conflicted with the physical evidence and suffered from numerous inconsistencies. The jury heard

testimony that Mr. Andrews changed his story multiple times. At various junctures, he claimed

that (1) he had not been in Ohio for six months, (2) he had been to Highland Square, but had left

close to midnight, (3) he had met a girl at the bar, but had nothing more to do with her, (4) he had

met R.H., kissed her, and accepted a ride from her, but definitely did not engage in any sexual

activity with her, (5) he had driven R.H.’s car at some point because she was acting so erratically

that he feared for his life, and (6) he had an inability to recall whether he engaged in sexual activity

with R.H. because they were both drunk and his memory was fuzzy. Much like R.H., Mr. Andrews

claimed that he never drank beer in her car, but his DNA was also found on the bottle. Further,

Detective Breeden was unable to substantiate his claims that he and R.H. stopped at a gas station,

that he called for an Uber, or that he went to a friend’s house.

       {¶31} The jury here was essentially presented with two conflicting versions of the events

that occurred on the night in question. As the trier of fact, it was in the best position to evaluate

the credibility of the witnesses and was “‘free to believe all, part, or none of the testimony of each

witness.’” State v. Clark, 9th Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶ 24, quoting Prince

v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35. “‘A conviction is not against

the manifest weight of the evidence merely because there is conflicting evidence before the trier

of fact.’” State v. Zaree, 9th Dist. Lorain No. 17CA011111, 2017-Ohio-9081, ¶ 5, quoting State

v. Haydon, 9th Dist. Summit No. 19094, 1999 WL 1260298, *7 (Dec. 22, 1999). Likewise, “[a]

verdict is not against the manifest weight of the evidence because the finder of fact chose to believe

the State’s witnesses rather than the defendant’s version of the events.” State v. Martinez, 9th Dist.

Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. This Court has carefully reviewed the record in

this matter, and Mr. Andrews has not shown that this is the exceptional case where the jury lost its
                                                 14


way by convicting him. See Otten, 33 Ohio App.3d at 340. Accordingly, his third assignment of

error is overruled.

                               ASSIGNMENT OF ERROR ONE

       WAYNE ANDREWS WAS DENIED HIS RIGHTS TO DUE PROCESS AND A
       FAIR TRIAL BY THE ADMISSION OF UNDULY PREJUDICIAL OTHER
       ACTS EVIDENCE, IN VIOLATION OF EVID.R. 403 AND 404(B) AND THE
       FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION AND ARTICLE 1, SECTIONS 10 AND 16 OF THE
       OHIO CONSTITUTION.

       {¶32} In his first assignment of error, Mr. Andrews argues that the trial court abused its

discretion when it allowed the State to introduce other acts evidence. Specifically, he challenges

the admission of a recording that purportedly showed him harassing an intoxicated, white female

shortly before he followed R.H. to her car. Upon review, we reject his argument.

       {¶33} “Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.” Evid.R. 404(B). Trial courts conduct a three-step analysis in

determining whether to admit other acts evidence:

       The first step is to consider whether the other acts evidence is relevant to making
       any fact that is of consequence to the determination of the action more or less
       probable than it would be without the evidence. Evid.R. 401. The next step is to
       consider whether evidence of the other crimes, wrongs, or acts is presented to prove
       the character of the accused in order to show activity in conformity therewith or
       whether the other acts evidence is presented for a legitimate purpose, such as those
       stated in Evid.R. 404(B). The third step is to consider whether the probative value
       of the other acts evidence is substantially outweighed by the danger of unfair
       prejudice.

State v. Baskerville, 9th Dist. Summit No. 28148, 2017-Ohio-4050, ¶ 7, quoting State v. Williams,

134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 20.
                                                 15


       {¶34} This Court has consistently held that “‘[t]he admission or exclusion of evidence

rests soundly within the trial court’s discretion.’”      State v. Powell, 9th Dist. Lorain No.

12CA010284, 2017-Ohio-4030, ¶ 16, quoting State v. Scheck, 9th Dist. Medina No. 05CA0033-

M, 2006-Ohio-647, ¶ 13. We therefore review a trial court’s decision regarding the admission or

exclusion of evidence for an abuse of discretion. Powell at ¶ 16. An abuse of discretion “implies

that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is

precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State

Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶35} As previously noted, the State played three video-recordings during Detective

Breeden’s testimony. The third recording showed two females standing on the sidewalk in front

of the bars and a male approaching them just after 1:30 a.m. It showed the male attempting to lead

away one of the females, who was clearly intoxicated, and the other female intervening. Once the

females walked away from the man, it showed him heading into the bar at 1:48 a.m. Detective

Breeden testified that the man in the recording was the same one who followed R.H. out of the bar

at 2:23 a.m. (i.e., Mr. Andrews). The trial court determined that the recording was relevant and

that its probative value was not outweighed by its prejudicial effect.

       {¶36} Mr. Andrews argues that the trial court abused its discretion when it admitted the

third recording in the absence of context or corroboration. He asserts that there was no proof he

was the male in the recording or that it depicted a non-consensual encounter. He notes that he was

never asked about the recording, the recording was not equipped with sound, and neither of the

females depicted therein testified. Accordingly, he argues that Detective Breeden’s testimony

about the recording amounted to nothing more than his subjective interpretation of what it showed.
                                                16


Mr. Andrews claims that the admission of the recording was extremely prejudicial because it cast

him as a pervert or predator and merely served to underscore racial stereotypes about black men

harassing white women.

        {¶37} Initially, we note that Mr. Andrews took inconsistent positions in the court below

when he objected to the admission of the third recording. After the State moved to admit the

recording as evidence of his prior bad acts, he filed a written response and wrote: “[T]he State is

seeking to introduce a video tape showing [Mr. Andrews] conversing and interacting with females

* * *. In fact, [Mr. Andrews] knew one of the girls.” (Emphasis added.) He, therefore, conceded

that he was the man in the recording and objected to its admission solely because it could be

interpreted in different ways and its prejudicial impact substantially outweighed its probative

value. On the first day of trial, however, he argued that the admission of the recording would be

prejudicial because no one would be testifying that he was the man who appeared in it and “we

don’t have any idea of who these women are or whether he even knew them.” Because neither the

State, nor the trial court drew attention to the inconsistent positions taken by Mr. Andrews, this

Court will not treat as dispositive his initial admission that he was the man in the recording.

Nevertheless, to the extent he now claims that he never admitted to that fact, we note that his own

pretrial filings undercut his assertion.

        {¶38} Upon review of the record, we cannot conclude that the trial court abused its

discretion when it admitted the third recording. First, the recording was relevant in several

respects. See Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, at ¶ 20, citing Evid.R. 401. It

showed what time Mr. Andrews arrived at the bar and also tended to show that he tried to lead an

intoxicated female away from the bar shortly before he abducted R.H. Second, the State introduced

the recording for a legitimate purpose. See Williams at ¶ 20. It helped establish the timeline of
                                                17


events that occurred and served as evidence of Mr. Andrews’ intent, motive, and/or plan that

evening. See Evid.R. 404(B). Finally, the record supports the conclusion that the recording was

not substantially more prejudicial than probative. See Williams at ¶ 20. Much of Mr. Andrews’

argument on this final point concerns the State’s failure to corroborate Detective Breeden’s

testimony about the recording. Apart from that testimony, he argues, there was no evidence that

he was the man in the recording or that it actually depicted him harassing a female. Yet, his

concerns speak to the weight of the evidence rather than its admissibility. See State v. Jackson,

9th Dist. Summit No. 28192, 2017-Ohio-635, ¶ 11. Detective Breeden was familiar with Mr.

Andrews’ appearance after having interviewed him. He also was able to compare the walk, the

clothing, and the appearance of the man following R.H. outside the bar in the first and second

recordings with the walk, clothing, and appearance of the man in the third recording. His

familiarity with Mr. Andrews, his observations, and the information he garnered during his

investigation provided an adequate foundation for the admissibility of the third recording. See id.

at ¶ 10-11.

       {¶39} To the extent Mr. Andrews claims that Detective Breeden’s description of the third

recording was inflammatory or fed into racial stereotypes, the record does not support his

argument. The State only asked the detective a few questions about the third recording. He

confirmed the time that Mr. Andrews came into view and the fact that he was never able to

ascertain the identity of the two females involved. The only statement he made regarding Mr.

Andrews’ behavior was that “it appeared * * * [one female] was trying to separate the other

intoxicated female from [Mr. Andrews] * * *.” He never categorized Mr. Andrews’ behavior as

harassment or used any other type of inflammatory phraseology. Moreover, the jurors were able

to view the recording themselves and draw their own conclusions about Mr. Andrews’ behavior.
                                                 18


       {¶40} Upon review, Mr. Andrews has not shown that the trial court abused its discretion

when it admitted the third recording. As such, his first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       WAYNE ANDREWS WAS DENIED HIS RIGHTS TO DUE PROCESS AND
       FAIR TRIAL BY THE EXCLUSION OF EVIDENCE OF THE VICTIM’S
       MENTAL HISTORY, IN VIOLATION OF EVID.R. 401 AND 613, AND THE
       FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION AND ARTICLE 1, SECTIONS 10 AND 16, OF THE
       OHIO CONSTITUTION.

       {¶41} In his second assignment of error, Mr. Andrews argues that the trial court abused

its discretion when it denied his request to introduce evidence about R.H.’s mental health history.

We do not agree.

       {¶42} As previously noted, the decision to admit or exclude evidence is one that lies

within the sound discretion of the trial court, and thus, will be reviewed for an abuse of discretion.

See Powell, 2017-Ohio-4030, at ¶ 16. An abuse of discretion “implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore, 5 Ohio St.3d at 219. When applying an

abuse of discretion standard, a reviewing court is precluded from simply substituting its own

judgment for that of the trial court. Pons, 66 Ohio St.3d at 621.

       {¶43} Evidence is relevant if it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Evid.R. 401. Though relevant evidence is generally admissible, Evid.R.

402, its exclusion is mandatory “if its probative value is substantially outweighed by the danger of

unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A).

       {¶44} Mr. Andrews had the opportunity to cross-examine R.H. about a variety of topics.

He asked her about the inconsistencies in her statements. He questioned her inability to recall

certain details. Further, he confronted her with pieces of physical evidence that appeared to
                                                 19


conflict with her version of the events. He did not, however, ask her about her mental health

history. Instead, when the sexual assault nurse examiner testified, he sought to ask her about a

“self-diagnosed mental illness” R.H. apparently reported during her examination. He claimed that

the information was relevant because it would corroborate his statements that R.H. had acted

“bipolar” and “crazy” in the car. Because the trial court determined that the prejudicial effect of

the evidence substantially outweighed its probative value, it excluded that evidence from trial.

       {¶45} Mr. Andrews argues that the trial court abused its discretion when it excluded the

evidence about R.H.’s self-reported mental illness. According to him, that evidence bore upon her

credibility and spoke to her inability to accurately perceive the events that occurred herein.

Because the State’s entire case depended upon the jury finding R.H. to be a credible witness, Mr.

Andrews argues, the exclusion of that evidence prejudiced his trial.

       {¶46} The “self-diagnosed mental illness” that R.H. apparently reported was contained in

certain medical records from her sexual assault examination. Though the appellate record includes

some of her medical records, it does not include any records wherein she diagnosed herself with a

mental illness. According to the State, Mr. Andrews failed to proffer those particular records for

purposes of his appeal. Though he concedes that the State is correct, Mr. Andrews nevertheless

argues that the record contains enough information for this Court to address his argument.

       {¶47} As the appellant, it was Mr. Andrews’ responsibility “to ensure that the record on

appeal contain[ed] all matters necessary to allow this Court to resolve the issues on appeal.” State

v. Farnsworth, 9th Dist. Medina No. 15CA0038-M, 2016-Ohio-7919, ¶ 16. We have consistently

held that, “in the absence of portions of the record necessary for our review, we must presume

regularity in the trial court’s proceedings and affirm its ruling.” State v. Jalwan, 9th Dist. Medina

No. 09CA0065-M, 2010-Ohio-3001, ¶ 12. Because the record does not contain the medical
                                               20


records at issue herein, we cannot determine whether the trial court erred when it excluded them.

While Mr. Andrews invites us to review his argument based strictly on the discussion the parties

and the lower court had about the records, we decline to do so. Mr. Andrews did not read into the

record any of the statements that R.H. apparently made to the nurse examiner about her mental

health history. Nor did he proffer what the nurse examiner’s testimony about those statements

would have been. Absent a record of R.H.’s actual statements or the context in which she made

them, we have no choice but to presume regularity in the proceedings. See id. Accordingly, Mr.

Andrews’ second assignment of error is overruled.

                             ASSIGNMENT OF ERROR FOUR

       WAYNE ANDREWS WAS DENIED DUE PROCESS WHEN THE TRIAL
       COURT IMPOSED NON-MERGED, CONSECUTIVE SENTENCES IN
       VIOLATION OF THE FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS
       OF THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO
       CONSTITUTION.

       {¶48} In his fourth assignment of error, Mr. Andrews argues that the trial court committed

various sentencing errors. First, he argues that the court should have merged his abduction

conviction under R.C. 2905.02(A)(2) with one of his remaining convictions. Second, he argues

that the court erred when it ordered him to serve two of his prison terms consecutively. We

separately address each issue.

       Allied Offenses

       {¶49} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and Section 10, Article 1 of the Ohio Constitution,

which prohibits multiple punishments for the same offense.” State v. Underwood, 124 Ohio St.3d

365, 2010-Ohio-1, ¶ 23. The statute provides, in relevant part:
                                                21


       (A) Where the same conduct by defendant can be construed to constitute two or
       more allied offenses of similar import, the indictment or information may contain
       counts for all such offenses, but the defendant may be convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
       import, or where his conduct results in two or more offenses of the same or similar
       kind committed separately or with a separate animus as to each, the indictment or
       information may contain counts for all such offenses, and the defendant may be
       convicted of all of them.

R.C. 2941.25(A), (B). The Supreme Court of Ohio has held that when a defendant’s conduct

supports multiple offenses, that defendant may be convicted of all offenses if “(1) the conduct

constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed

separately, or (3) the conduct shows that the offenses were committed with separate animus.” State

v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph three of the syllabus.

       {¶50} Mr. Andrews was convicted of two counts of abduction under two separate

subdivisions of R.C. 2905.02. Those two subdivisions prohibit any person from knowingly, and

without privilege to do so, using force or the threat of force to (1) “remove another from the place

where the other person is found,” R.C. 2905.02(A)(1), or (2) “restrain the liberty of another person

under circumstances that create a risk of physical harm to the victim or place the other person in

fear,” R.C. 2905.02(A)(2). At his sentencing hearing, Mr. Andrews argued that his abduction

convictions should merge because he engaged in a single course of conduct when he forced R.H.

into her car and kept her there against her will. The trial court rejected his argument and refused

to merge his convictions.

       {¶51} On appeal, Mr. Andrews primarily argues that the trial court erred when it failed to

merge his conviction for abduction under R.C. 2905.02(A)(2) with his conviction for sexual

battery. Yet, the record reflects that he never sought the merger of those two offenses in the lower

court. Because he neither asserted an allied offense argument with respect to those offenses, nor
                                                 22


objected to the trial court’s refusal to merge them, he forfeited all but plain error. See State v.

Daniels, 9th Dist. Wayne No. 17AP0036, 2020-Ohio-1176, ¶ 37. Mr. Andrews has not set forth a

plain error argument in his appellate brief. Although he has attempted to raise plain error in his

reply brief, “an appellant may not assert a claim of plain error for the first time in a reply brief.”

State v. Irvine, 9th Dist. Summit No. 28998, 2019-Ohio-959, fn. 1. Moreover, his argument

amounts to nothing more than a blanket statement that plain error occurred. This Court will not

construct a plain error argument on his behalf. See Daniels at ¶ 37. Accordingly, we reject his

argument that his abduction and sexual battery convictions ought to have merged as allied offenses

of similar import.

       {¶52} Mr. Andrews also briefly argues that his two abduction convictions ought to have

merged because they were “part and parcel of a single act * * *.” Yet, the record supports the

conclusion that the two offenses were committed separately and with a separate animus. See R.C.

2941.25(B). The first count of abduction occurred when Mr. Andrews initially forced R.H. into

her car and removed her from the scene. See R.C. 2905.02(A)(1) (using force to remove another

from the place where the other is found). The second count of abduction occurred later when he

kept her in the car for several hours, ignored her pleas to let her go, slapped her phone from her

hand, caused her to hit her head on the dashboard, forced her to perform oral sex on him, and took

her to an unfamiliar house. See R.C. 2905.02(A)(2) (using force to restrain another’s liberty under

circumstances that risk physical harm to the other or place her in fear). Because his two abduction

counts were committed separately and with a separate animus, the trial court did not err when it

refused to merge them. See State v. Person, 9th Dist. Summit No. 27600, 2016-Ohio-681, ¶ 32.

We reject Mr. Andrews’ argument to the contrary.
                                                    23


          Consecutive Prison Terms

          {¶53} An appellate court’s standard for review of a felony sentence is not whether the

sentencing court abused its discretion. R.C. 2953.08(G)(2). The Supreme Court of Ohio has held

that “an appellate court may vacate or modify a felony sentence on appeal only if it determines by

clear and convincing evidence that the record does not support the trial court’s findings under

relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, ¶ 1; R.C. 2953.08(G)(2). “Clear and convincing evidence is that

measure or degree of proof which will produce in the mind of the trier of facts a firm belief or

conviction as to the allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477

(1954).

          {¶54} R.C. 2929.14(C)(4) requires trial courts to make certain findings before imposing

consecutive sentences:

          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:

          (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.

          (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.

          (c) The offender’s history of criminal conduct demonstrates that consecutive
          sentences are necessary to protect the public from future crime by the offender.
                                                24


In order to impose consecutive sentences, “a trial court is required to make the findings mandated

by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry * * *.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus. Yet, it is not

required “to explain its findings before imposing consecutive sentences.” State v. Brundage, 9th

Dist. Summit No. 29477, 2020-Ohio-653, ¶ 17, citing Bonnell at syllabus. “[A]s long as the

reviewing court can discern that the trial court engaged in the correct analysis and can determine

that the record contains evidence to support the findings, consecutive sentences should be upheld.”

Bonnell at ¶ 29.

       {¶55} The trial court imposed consecutive sentences upon Mr. Andrews for his abduction

conviction under R.C. 2905.02(A)(1) and his sexual battery conviction under R.C. 2907.03(A)(2).

Mr. Andrews does not dispute that it made the required findings under R.C. 2929.14(C)(4) at his

sentencing hearing and in its sentencing entry. His argument is that its findings were cursory and

that it failed to engage any meaningful analysis. Yet, the court was not required to explain its

findings before it issued consecutive sentences. Brundage at ¶ 17, citing Bonnell at syllabus. The

court described Mr. Andrews as “a predator” who “prey[ed] on the vulnerable, [and] pick[ed]

someone weak, probably unlikely to report any incident and probably unlikely to remember * *

*.” It made each of the findings required by R.C. 2929.14(C)(4) at the sentencing hearing, and

those findings are reflected in its sentencing entry. Accordingly, we cannot conclude that the court

erred when it ordered Mr. Andrews to serve two of his sentences consecutively. See Brundage at

¶ 18. Mr. Andrews’ fourth assignment of error is overruled.

                                                III.

       {¶56} Mr. Andrews’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.
                                                25


                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JEREMY A. VEILLETTE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
