         [Cite as State v. Arnold, 2020-Ohio-2706.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                        :   APPEAL NOS. C-180664
                                                                       C-180670
        Plaintiff-Appellee,                           :   TRIAL NO. B-1604105

  vs.                                                 :      O P I N I O N.

WILLIAM ARNOLD,                                       :

    Defendant-Appellant.                              :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 29, 2020




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




W INKLER , Judge.

         {¶1}   Following a jury trial, defendant-appellant William Arnold was

convicted of one count of reckless homicide under R.C. 2903.041, one count of

felonious assault under former R.C. 2903.11(A)(1), one count of abduction under

R.C. 2905.02(A)(2), and one count of tampering with evidence under R.C.

2921.12(A)(1). We find no merit in his five assignments of error, and we affirm his

convictions.

                                I. Factual Background

                          A. The Victim is Severely Injured

         {¶2}   The record shows that on February 29, 2016, at about 12:30 a.m.,

Rhonda Byrd received a call from her 16-year-old daughter, Hailey Hall. Hall asked

Byrd to pick her up at Inner Circle Night Club, also known as Annie’s Night Club.

Byrd told Hall she would need a few minutes to get dressed and find the location of

the night club. Once she was ready, Byrd called Hall back. A man answered Hall’s

phone. Byrd described the man’s voice as deep, like that of a middle-aged black man.

Hall then got on the phone, and said she had a ride and she would be home “in a

little bit.”

         {¶3}   But Byrd did not see her daughter until 2:40 p.m. the following day.

When Hall did not come home, Byrd called her phone repeatedly, but got no answer.

She started calling hospitals. Eventually, one of Hall’s friends called Byrd and told

her that Hall was at Mercy Hospital in Western Hills. When Byrd arrived at the

hospital, the doctor told her that Hall’s injuries were “like getting hit by a Mack truck

and he didn’t know if she would make it or not.”




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         {¶4}   Hall was taken by air care to University Hospital, which had a level-

one trauma center. Byrd said that her daughter’s face was so swollen, she was

unrecognizable. She “had bruises from head to toe” and “scratches all over her

body.” Her long, dark hair was matted and had leaves in it. Eventually, doctors told

Byrd that Hall’s “brain stem was dead.” She was taken off life support and passed

away.

         {¶5}   Byrd did not know Arnold. Unbeknownst to Byrd, Hall had been

dating Arnold, who was a drug dealer. Byrd believed her daughter was staying with

friends the night she was injured.

         {¶6}   Ashley Emerson was Hall’s best friend. She knew that Arnold was

Hall’s boyfriend and that they had been dating since Christmas 2015. On February

28, Hall called Emerson and told her to come to Annie’s. Emerson said she could not

come, and stayed home.

         {¶7}   The next morning, Emerson woke up sometime between 9:00 and

10:30 a.m. and saw that she had missed calls from Arnold’s phone. She called him

back several times. When he finally answered, she heard him say, “[F]uck that bitch.

That ho got what she deserved.” He hung up, and Emerson called him back.

         {¶8}   When Arnold answered again, he said that “she’s not breathing right.”

Emerson asked to talk to Hall. Emerson asked Hall to say that she was alright, and

all Emerson heard was a noise. Emerson said it “was like she couldn’t breathe, she

couldn’t talk.” Emerson told Arnold to take Hall to the hospital, and hung up the

phone.

         {¶9}   Emerson got into her car and tried to find Hall. She talked with

Arnold again around noon, when Arnold told her that Hall had been jumped by eight

to ten black girls at the night club, which was the first time he had mentioned that.



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Emerson asked him where he was, if he had taken Hall to the hospital, and several

other questions. Arnold told her “nothing.”

       {¶10} Emerson did not see Hall again until two days later at University

Hospital. Emerson said that “her whole body was swollen and her head was so big

and it did not look like Hailey at all.”

   B. Arnold Waits to Take the Victim to the Hospital and Conducts Drug Deals

       {¶11} Richard Lawson was a heroin addict and one of Arnold’s customers.

He knew Arnold as “Grease.” Sometime during the late night hours of February 28

or the early morning hours of February 29, Lawson called Arnold to arrange a

purchase. Arnold told Lawson that the heroin would be in the gas tank of his car, a

dark-colored BMW, which was parked at Annie’s Night Club, and that he should

leave the money in there.

       {¶12} Lawson had difficulty locating the car because it was pouring rain that

night. When he finally found the car, he could not get into the gas tank because it

was a newer BMW that required a key. Lawson called Arnold several times, and

Arnold eventually came out of the night club. When Arnold removed the package of

heroin from the gas tank, it was wet. Lawson and Arnold got into the car while

Arnold made him a new pack of heroin. Lawson indicated that the car was parked on

a lot made of pavement, not gravel.

       {¶13} Lawson testified that he saw Hall, whom he knew from previous

dealings with Arnold, running toward the car. He said to Arnold, “[H]ey, there’s

your girl.” Arnold seemed agitated and said, “[A]h, fuck her, she’ll be alright.”

       {¶14} The following night, Lawson wanted to arrange another purchase from

Arnold. He had to call Arnold several times before he answered. He arranged to

meet Arnold on McMicken Street. Arnold was late and told Lawson to bear with him


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because “he had a lot going on.” Arnold was on his phone for the whole transaction

and seemed agitated.

         {¶15} Paul Fangman, an agent for the Regional Narcotics Unit of the

Hamilton County Sheriff’s Department, saw Arnold the morning of February 29 at

the Budget Host Hotel on Central Parkway.          Agent Fangman was conducting

surveillance of Arnold for a separate investigation. He had seen Arnold and Hall

together on five separate occasions. At approximately 8:00 a.m., Fangman located

Arnold’s car, a dark-colored BMW with a temporary Kentucky license plate, at the

hotel.

         {¶16} From the hotel lobby, Fangman saw Arnold exit from room 105 at

approximately 10:50 a.m. He came to the lobby and spoke with the hotel clerk.

Arnold wanted to extend his stay at the hotel, but the clerk asked for his

identification, which Arnold said he did not have. Fangman then saw a small female,

later identified as Paige Flanigan, arrive at the hotel and head toward a recessed area

where room 105 was located.

         {¶17} At 11:10 a.m., Arnold came out of the room again. He placed a clear

garbage bag with what appeared to be clothing inside into the trunk of the BMW, and

then returned to the room. A few minutes later, he came out of the room again

carrying what Fangman thought was a ten- or 11-year-old child in his arms. That

person also appeared to be sleeping or unconscious. Agent Fangman testified that in

hindsight, he believed that Arnold could have been carrying Hall. Although he could

not see the face of the person Arnold was carrying, he could see that she had long,

dark hair. Flanigan came out of the room with Arnold and opened the passenger

door of the BMW. Arnold placed the person he was carrying in the vehicle. Arnold

and Flanigan then left in separate vehicles.



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         {¶18} Flanigan knew Arnold as “Grease" or “G.” She often saw Hall with

Arnold when she purchased heroin from Arnold. On February 29, Flanigan had an

appointment at noon and wanted to meet with Arnold to buy heroin before then. She

called Arnold multiple times, but her calls went straight to voicemail. Flanigan

decided to go to the Budget Host Hotel, since she knew that Arnold would be staying

there.

         {¶19} When Flanigan arrived, she just happened to see Arnold walking out of

the room. When she went inside, she saw Hall lying on the bed. She said that Hall’s

body was bruised and her face was swollen. She was breathing heavily. Flanigan

tried to wake Hall, but she did not respond. She saw a bloody towel on a chair and

blood on the bathroom floor.

         {¶20} Arnold was moving around the room, “getting things together.”

Flanigan said he appeared “scattered” and “nervous.” He kept saying it that it was

the worst day of his life. He said that he and Hall “had gotten into it.” Flanigan

asked, “[W]hat was so bad that it came to this?” Arnold only said, “I don’t know, I

don’t know.”

         {¶21} Flanigan told Arnold that he should take Hall to a hospital. Arnold

said that he would. He continued to take things from the room to the car. When

Arnold picked Hall up from the bed, Hall’s head went limp. Flanigan pushed Hall’s

hair out of her face and pulled her shirt down because she had visible marks and

bruises. Then, at Arnold’s direction, Flanigan looked out the door to make sure that

no one was looking. Arnold carried Hall to the car and put her in the front seat.

         {¶22} Arnold and Flanigan drove away in their separate vehicles and met less

than a mile away from the hotel to complete the drug sale. Flanigan got into the back

seat of Arnold’s car. She saw blood all over the dashboard, a bloody clump of long,



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dark hair in the handle of the glove compartment, and blood on the passenger side

door. She also saw Hall’s purse in the back seat. After the drug sale, Flanigan left.

She said that she did not call 911 because she was a heroin addict and she was afraid

that Arnold would get mad and hurt her.

         {¶23} Flanigan saw Arnold later that evening to purchase more heroin. Hall

was not in the car, but her purse was still in the back seat. When Flanigan asked how

Hall was doing, he said, “[N]ot good.” Arnold told her that Hall’s family and friends

were mad at him because Hall got jumped by girls at the club on his watch. Flanigan

thought it was strange that he had not previously mentioned that she had been

jumped.

         {¶24} Erin Chasteen was one of Arnold’s customers, and knew him as

“Mike.” She received a call from him on the morning of February 29. She could hear

a “commotion in the background,” so she hung up and called him back.              He

apologized for calling her and said, “[T]here was something wrong.” Chasteen called

him back and arranged to meet him to buy heroin.

         {¶25} About noon, Chasteen met Arnold at a park. When she pulled up, he

was wiping the passenger door of his car with a white cloth. She said that “he was

not his normal self.” He seemed “very anxious and nervous” and paced back and

forth.

         {¶26} Chasteen noticed Hall unconscious in the front passenger seat of

Arnold’s car. Her face was so bruised and swollen that Chasteen hardly recognized

her. Chasteen had worked as a medical assistant before her drug problem. She

found that Hall still had a pulse, but she was cold. Her breathing was raspy “like a

death rattle.” Chasteen could hear fluid in Hall’s lungs.




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       {¶27} Chasteen asked Arnold, “[W]hat the fuck did you do?” He told her that

they had been in a club. He thought that Hall had been talking to someone else and

they had gotten into a fight. He said that things had gotten out of hand and he had

not meant for it to go that far. He was worried that Hall had brain damage. He

asked Chasteen to take Hall to the hospital, but Chasteen refused because she knew

that she was wanted in two states. She told Arnold that he needed to take Hall to the

hospital.

       {¶28} Jennifer Horton was another one of Arnold’s customers. On February

29, she too made arrangements to buy heroin from Arnold. He came and knocked on

her door, which was unusual. Usually, he called her, and she came out of the house.

She let him in, and noticed that “he seemed a little off, like he paced back and forth.”

       {¶29} After they completed the drug sale, Arnold commented that “she

needed to go to the hospital.” When Horton asked him who, he said that Hall had

been jumped by eight or nine black girls at Annie’s. Horton, who had known Hall

since she was a child, went out to the car to see her. Horton stated that Hall was

unrecognizable. She had marks on her neck as if she had been choked. She had

bruises and she was bloody, but there was no blood on her clothes.             Hall was

unresponsive and barely breathing, as if it hurt for her to breathe.

       {¶30} Horton admitted that she went into her house to take her drugs. Then

she got into the back seat of Arnold’s car so that they could take Hall to the hospital.

Arnold put Hall in the back seat with Horton. Horton stated that Hall’s eyes were

open, but she was unresponsive. Arnold drove up the road to Mercy Hospital. When

they arrived at the hospital, his voice quivered and he said, “I didn’t mean to do it,

she didn’t deserve it, I didn’t mean to hurt her.”




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         {¶31} Horton testified that Arnold went into the hospital and got a

wheelchair. He put Hall in the wheelchair and went to the door. He banged on the

door to get people’s attention. Two nurses came out and got Hall and took her

inside. Arnold then left. Horton filled out the paperwork and stayed until Hall’s

family arrived. Horton told the family that Hall had been jumped by eight or nine

black girls, even though she knew it was untrue, because she was scared.

                               C. The Police Investigation

         {¶32} At approximately 5:00 p.m. on February 29, Cincinnati Police

Detective Charles Zopfi arrived at University Hospital. He described Hall’s condition

as “horrific.” He added,

         [H]er head was the size of a basketball, every bit the size of a full,

         inflated basketball. Her eyes were swollen shut. She had scrapes and

         contusions all about her face. She had bruising and marks on her

         throat area. She had marks and scrapes and bruising all along her

         arms on both sides.

                                          ***

         She had dark bruising on her knees, with lacerations and some

         contusions, and that continued all the way down to her feet. She was

         missing numerous nails on both hands and she had a large amount of

         bruising on the top of her head and there was what appeared to be

         dried blood in her hair.

         {¶33} Detective Zopfi spoke with Hall’s mother and three of her friends to

find out where Hall had been before being brought to the hospital. He was able to

obtain video surveillance footage from Annie’s Night Club and the Budget Host

Hotel.


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       {¶34} Video from the hotel dated February 28 showed that Arnold and Hall

had arrived at the hotel together. Arnold wore a letterman jacket. The chest and

back of the jacket were either dark blue or dark green, and it had tan sleeves. He also

wore a white tee shirt underneath, faded blue jeans and white tennis shoes. Hall

wore a pink-black-gray-and-white-striped sweater, cream-colored tights or leggings

and black wedge heels. Subsequently, Arnold and Hall got in the dark-colored BMW

and left the parking lot.

       {¶35} Video from Annie’s showed Arnold wearing a white tee shirt and

carrying his letterman jacket and Hall in her striped sweater and cream-colored

leggings moving around the club. Arnold left the club at 1:42 a.m.

       {¶36} Video footage from the hotel showed the BMW returning at 4:05 a.m.

Arnold got out and went into room 105 briefly. He then came back out, went to the

passenger side of the BMW, and carried Hall into the room. Arnold was no longer

wearing the letterman jacket, and Hall was wearing dark pants. Those pants were

consistent with the pants she was wearing when she entered the hospital. Arnold

went back out to the car that night at least twice.

       {¶37} Detective Zopfi, Detective Mark Longworth and Agent Fangman

interviewed Arnold. Arnold said that while he was in the club, he got an urgent text

from Hall asking him to come outside. When he got to the exit, he was detained

briefly and saw Hall walking to the parking lot. Several seconds later, he followed her

to a gravel overflow parking lot, and saw her in an altercation with five black girls.

He claimed he broke up the fight and told the girls to get away from his car.

       {¶38} He said that Hall was conscious and responsive at that time, but had a

bloody nose and some scrapes and bruises. He asked her if she wanted him to take

her to the hospital and she said no, she wanted to go back to the hotel.



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       {¶39} Arnold said that once they arrived at the hotel, he carried her in and

cleaned her up in the bathroom, where he noted a cut on her back. They watched

television and eventually went to sleep. Arnold maintained that Hall was conscious

the entire time. When they woke up the next morning, she was conscious and they

had a conversation. She asked him to extend their stay in the room for another

night. He went to the lobby, but could not. He came back to the room and told her

that they would have to leave and that he would gather her belongings and put them

in the car.

       {¶40} Arnold said that a friend, whom he later acknowledged was Flanigan,

came to the room. At that time, they found Hall unresponsive. He told Flanigan that

Hall had been jumped by several girls at the club, and he asked Flanigan to assist

him in taking Hall to the hospital. He said he could not sit at the hospital because he

had errands to run.

       {¶41} According to Arnold, he took Hall straight to Mercy Hospital in

Western Hills. The detectives found that statement to be inconsistent, because the

hotel was minutes away from several hospitals, including the major trauma centers,

while Mercy Hospital was some distance away. When pressed for details, Arnold

admitted to stopping at Horton’s house on the west side of town. Zopfi stated that

Arnold, Flanigan, and Hall left the hotel at approximately 11:00 a.m. They did not

arrive at the hospital until after 1:00 p.m.

       {¶42} Arnold also told the police that the dark-blue BMW he had been

driving that night was a “street rental.” He claimed it belonged to a girl named

Cassie from Kentucky, that he did not know her last name, and that he had met up

with her to return the car. However, the police officers found the car in the back yard




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of Arnold’s brother’s house, along with some of Hall’s belongings. Arnold’s brother

gave Hall’s purse and some other items to the police.

       {¶43} Eight police officers were working a detail at Annie’s Night Club the

night that Hall was injured. One of the officers testified that he made sure he had a

view of the overflow parking lot. None of the officers saw any fights in the parking

lots that night. There was only one fight inside the club. The officers remained in

the parking lots until all of the patrons and staff of the nightclub had left.

       {¶44} A deputy coroner from the Hamilton County Coroner’s Office

described the horrific injuries that Hall had suffered, including numerous bruises, a

laceration of her liver, and massive head injuries, which caused blood to accumulate

between her skull and her brain. Her brain swelled up so much that the coroner

could see the brain swelling through the hole that was cut in her skull at the hospital

to relieve the pressure. The coroner opined that, depending on the rate of the

bleeding, Hall would likely have survived if she had gotten to the hospital sooner.

The coroner also said that although Hall had some lacerations on her skin, they were

likely due to blunt-force blows rather than cuts. She also stated that if Hall had been

in a fight in a gravel parking lot as Arnold had claimed, she would have expected to

see far more lacerations. Hall also had a stomp mark on her back, which was not

consistent with being hit by a high-heeled shoe.

       {¶45} A police criminalist used a substance called Luminal, which reveals the

presence of blood and cleaning products when the lights are turned out, in the BMW.

The Luminal showed the presence of blood and cleaning products on the dashboard

and the passenger-side door and seat of the BMW that Arnold had been driving.

There were smears of blood on the dashboard and droplets spattered on the

windshield. Various blood spatters in the car were swabbed for DNA, which were all



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identified as coming from Hall. There were also minor profiles that could not be

identified. Arnold had claimed that the victim had a nose bleed from the fight she

had been in at the club. But there were substantial amounts of blood in the car, far

more than would be caused by a nose bleed.

                                 D. Arnold’s Defense

       {¶46} Arnold’s friend Anthony Easton testified on Arnold’s behalf. He said

on the morning of February 29, he saw Arnold walk into the club with Hall around

12:30 a.m. It was crowded, and he went into the back of the club with Arnold, but

Hall did not accompany them. He said that he did not notice anything strange

between Arnold and Hall. He did not see Hall again that night. When he and Arnold

got to the front of the club, Arnold noticed he had a lot of missed calls on his phone.

Arnold made a phone call. He appeared worried as he talked, and he left the club.

       {¶47} Arnold testified on his own behalf at trial. He said that he and Hall left

the hotel about 11:00 p.m. to go to the club. It was crowed, so he parked in the gravel

auxiliary lot across the street, which was not well lit. Hall told him she wanted to talk

to some people, so they separated, but he said they were not arguing and he was not

mad at her.

       {¶48} Around 1:40 a.m., Hall texted him that she was outside. After a brief

delay getting out of the club, he got to the car and saw five or six black females

hitting and stomping on Hall. When Hall fell to the ground, he became alarmed and

angry. He restrained himself from hitting the women and shielded Hall from them.

After he threatened the women, they left, and he helped Hall to the car.

       {¶49} Arnold stated that Hall was talking and did not appear to be in pain.

Her nose was bleeding and she had some scrapes and bruises. Her shirt had been

ripped in the fight, so she ripped part of it off to stop the nosebleed. He asked her


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several times if she wanted to go to the hospital, but she said that she was alright.

She fell asleep in the car as he conducted several drug deals.

       {¶50} They arrived at the hotel at around 4:00 a.m., and he carried her

inside. When they got back in the room, she awoke and got into the bath tub, where

Arnold saw her injuries. After that, they smoked a joint and fell asleep.

       {¶51} Arnold said that when Flanigan arrived the following morning about

11:00 a.m., he realized Hall was unconscious. He believed she had been doing fine

because she was a “tough girl” who knew herself and she had assured him that she

was okay. He told Flanigan it was the “worst day of his life” due to Hall’s condition.

He knew there was an undercover agent in the lobby, so he carried Hall to the car.

Then he and Flanigan left and drove down the road to conduct the drug deal. He

said he was not thinking straight and acknowledged making bad decisions by

conducting drug deals before taking Hall to the hospital. He denied hitting or

assaulting her that night, and claimed he only left the hospital because he believed

that she would be alright.

                                 E. The Convictions

       {¶52} Arnold was indicted on two counts of murder, one count of felonious

assault, one count of kidnapping, one count of abduction, and one count of

tampering with evidence. The jury found him not guilty of the murder charges and

the kidnaping charge. It found him guilty of the lesser offense of reckless homicide,

felonious assault, abduction and tampering with evidence. The trial court refused to

merge the reckless-homicide and abduction counts, and sentenced Arnold to a total

of 17 years in prison. This appeal followed.




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                             II. Weight and Sufficiency

       {¶53} In his first assignment of error, Arnold argues that the evidence was

insufficient to support his convictions for felonious assault, abduction and tampering

with evidence. In his second assignment of error, he argues that those convictions

were against the manifest weight of the evidence.         He does not challenge the

reckless-homicide conviction, and concedes that he acted recklessly in failing to take

Hall the hospital. He argues that the evidence shows that he did not intentionally

commit the other offenses. These assignments of error are not well taken.

       {¶54} Arnold was convicted of felonious assault under former R.C.

2903.11(A)(1), which provided that “[n]o person shall knowingly * * * [c]ause serious

physical harm to another * * *.” A person acts knowingly, regardless of purpose,

“when the person is aware that the person’s conduct will probably cause a certain

result or will probably be of a certain nature.         A person has knowledge of

circumstances when the person is aware that such circumstances probably exist.”

R.C. 2901.22(B).

       {¶55} “ ‘Knowingly’ does not require the offender to have the specific intent

to cause a certain result. That is the definition of ‘purposely.’ ” State v. Huff, 145

Ohio App.3d 555, 563, 763 N.E.2d 695 (1st Dist.2001). Whether a person acts

knowingly can be gathered from the surrounding facts and circumstances, including

the act itself. State v. Bettis, 1st Dist. Hamilton No. C-060202, 2007-Ohio-1724, ¶ 9;

Huff at 563.

       {¶56} The state’s witnesses testified as to the severity of Hall’s injuries. They

stated that she was unrecognizable due to her injuries and that she was barely

breathing. They also testified as to Arnold’s comments that he and Hall “had gotten

into it” and that things “had gotten out of hand.” It was not until later that Arnold



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changed his explanation and stated that Hall had been attacked by a group of girls in

the gravel parking lot across the street. According to the coroner, Hall’s injuries did

not support that explanation.     None of the eight police officers working details

outside of the night club saw or heard an attack or a fight by a mob of girls. Given

the severity of Hall’s injuries, together with the other facts and circumstances, the

jury could have reasonably inferred that Arnold acted knowingly in causing Hall’s

injuries. See State v. Churn, 8th Dist. Cuyahoga No. 105782, 2018-Ohio-1089, ¶ 20.

       {¶57} Arnold’s argument relies entirely on his version of events, which he

claims was more credible. But in deciding if the evidence was sufficient, we neither

resolve evidentiary conflicts nor assess the credibility of witnesses. State v. Wright,

2017-Ohio-1568, 90 N.E.3d 162, ¶ 58 (1st Dist.).

       {¶58} Arnold was also convicted of abduction under former R.C.

2905.02(A)(2), which provides that “[n]o person, without privilege to do so, shall

knowingly * * * [b]y force or threat, 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.” Force is “any violence, compulsion, or constraint physically exerted

by any means upon or against a person or thing.” Former R.C. 2901.01(A)(1); State

v. Hornschmeier, 2012-Ohio-2860, 973 N.E.3d 779, ¶ 41 (1st Dist.).

       {¶59} Restraint of liberty means “to limit one’s freedom of movement in any

fashion for any period of time * * * .” State v. Tajblik, 6th Dist. Wood No. WD-14-

064, 2016-Ohio-977, ¶ 17. A conviction does not turn on the manner in which the

individual is restrained. Rather, the question is whether the restraint “is such to

place the victim in the offender’s power and beyond immediate help, even though

temporarily.” Id. at ¶ 18.




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       {¶60} Rather than taking Hall to get medical attention or home to her

mother, Arnold took her to the hotel. Video from the hotel showed him carrying an

unconscious Hall into the hotel room. Later that morning, he carried an unconscious

Hall from the room and put her in the car. He then drove her from one drug deal to

another. Although Arnold’s customers were afraid to get involved, they urged him to

take her to a hospital. All in all, it was over 11 hours after Hall had been beaten

before Arnold took Hall to hospital. Thus, the state’s evidence was sufficient to show

the elements of abduction. See State v. Crossty, 2017-Ohio-8382, 99 N.E.3d 1048, ¶

25-27 (1st Dist.). Again, Arnold’s argument relies on his version of events, in which

he claimed that Hall declined medical treatment and went with him willingly.

       {¶61} Finally, Arnold was convicted of tampering with evidence under R.C

2921.12(A)(1), which provides that “[n]o person, knowing that an official proceeding

or investigation is in progress, or is about to be or likely to be instituted, shall * * *

[a]lter, destroy, conceal or remove any record, document, or thing, with purpose to

impair its value or availability as evidence in such proceeding or investigation[.]”

Tampering with evidence requires a person to act with purpose, meaning that the

person has a specific intention to cause a certain result. State v. McGee, 1st Dist.

Hamilton No. C-150496, 2016-Ohio-7510, ¶ 28. The state may prove purpose, as

well as the other elements of the offense, by circumstantial evidence. Id.; In re J.T.,

2014-Ohio-5062, 21 N.E.3d 1136, ¶ 8 (1st Dist.).

       {¶62} Neither Hall’s clothing nor Arnold's jacket that were seen in the club

video were ever recovered. The evidence showed that attempts were made to clean

the car. Arnold also claimed to have returned the car to its alleged owner, but it was

found at his brother’s house. Thus, the state presented evidence from which the jury

could have reasonably inferred that Arnold acted with the requisite intent.



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       {¶63} Our review of the record shows that a rational trier of fact, after

viewing the evidence in a light most favorable to the prosecution, could have found

that the state proved beyond a reasonable doubt all of the elements of felonious

assault, abduction and tampering with evidence.         Therefore, the evidence was

sufficient to support the convictions. See State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus; State v. Hackney, 1st Dist.

Hamilton No. C-150375, 2016-Ohio-4609, ¶ 29.

       {¶64} Further, after reviewing the record, we cannot say that the trier of fact

lost its way and created such a manifest miscarriage of justice that we must reverse

the convictions and order a new trial. Therefore, the convictions were not against the

manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997); State v. Cedeno, 192 Ohio App.3d 738, 2011-Ohio-674, 950

N.E2d 582, ¶ 25 (1st Dist.).

       {¶65} Arnold is again arguing that his version of events is more credible. But

matters as to the credibility of evidence were for the trier of fact to decide. State v.

Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 116; Wright, 2017-

Ohio-1568, 90 N.E.3d 162, at ¶ 59. Therefore, we overrule Arnold’s first and second

assignments of error.

                                 IV. Allied Offenses

       {¶66} In his third assignment of error, Arnold contends that the trial court

erred in failing to merge the reckless-homicide and abduction counts. He argues that

they are allied offenses of similar import. This assignment of error is not well taken.

       {¶67} As a general rule, we review a trial court’s decision regarding allied

offenses de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983

N.E.2d 1245, ¶ 28; State v. Murph, 1st Dist. Hamilton No. C-150263, 2015-Ohio-


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                     OHIO FIRST DISTRICT COURT OF APPEALS



5076, ¶ 5. In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Ohio Supreme Court stated that in determining whether offenses are allied offenses

of similar import within the meaning of R.C. 2941.25, courts “must evaluate three

separate factors—the conduct, the animus, and the import.” Id. at paragraph one of

the syllabus.

       {¶68} The court held:

       Under R.C. 2941.25(B), a defendant whose conduct supports multiple

       offenses may be convicted of all the offenses if any one of the following

       is true: (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.

Id. at paragraph three of the syllabus.

       {¶69} The defendant bears the burden to show that he is entitled to the

protection provided by R.C. 2941.25 against multiple punishments for a single

criminal act. State v. Ziegler, 2017-Ohio-7673, 97 N.E.3d 994, ¶ 20 (1st Dist.). “Two

or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B)

when the defendant’s conduct constitutes offenses involving separate victims or if

the harm that results from each offense is separate and identifiable.”             Ruff at

paragraph two of the syllabus. Offenses are not allied offenses of similar import “if

they are not alike in their significance and their resulting harm.” Id. at ¶ 21.

       {¶70} R.C. 2905.02(A)(2), abduction, provides that “[n]o person, without

privilege to do so, shall knowingly * * * [b]y force or threat, restrain the liberty of

another person under circumstances that create a risk of physical harm to the victim




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                     OHIO FIRST DISTRICT COURT OF APPEALS



or place the other person in fear.” R.C. 2903.041(A), reckless homicide, states that

‘[n]o person shall recklessly cause the death of another * * *.”

       {¶71} Arnold’s actions were so severe and prolonged that the offenses were

of dissimilar import. The basis for the reckless homicide was Arnold’s failure to take

Hall to the hospital. The record shows that her injuries were so severe that they

required immediate hospitalization. Yet, Arnold restrained Hall’s liberty by force

repeatedly by taking her from place to place over the course of 11 hours. This series

of forcible restraints of her liberty each created a separate risk of harm. See Tajblik,

6th Dist. Wood No. WD-14-064, 2016-Ohio-977, at ¶ 29.

       {¶72} In finding that the offenses were separate, the trial court stated:

       I have different acts that took place. There’s driving her to the hotel

       instead of the hospital. There’s not calling an ambulance back at the

       beginning. There’s not calling an ambulance when he knew she had,

       by his own admission[,] she had to go to the hospital. That might have

       been the reckless homicide. There is the act of carrying her up into the

       room, the act of carrying her back down into the car, the act of driving

       her out to the west side, all separate acts. You say it’s committed with

       one animus, but I’m not sure how you support that, given that each

       time he made the decision to do something.

       {¶73} The court later rejected Arnold’s arguments that the offenses should

merge 0n the ground that there was only one mens rea, because intent was not the

only consideration. It stated that Arnold had caused separate harms to the victim

because “[e]ach time he made her condition more precarious.”

       {¶74} Finally, the court summarized,




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       To me, it seems that there were so many different acts, each of which

       exposed her to greater and greater risk of death, that each of these

       offenses is separately supported. Clearly, the abduction from whatever

       the event that caused the injuries * * * is separate from those acts.

       Calling an ambulance right then and there would have been the only

       proper course of action.

       A separate decision was made to move her after that occurred and

       move her, not to a place of treatment and safety, but to a place where

       she would further deteriorate in the eyes of any reasonable person.

       {¶75} We agree with the trial court’s reasoning, and we hold that the offenses

were of dissimilar import. Therefore, the trial court did not err in failing to merge

the offenses of reckless homicide and abduction, and we overrule Arnold’s third

assignment of error.

                             IV. Consecutive Sentences

       {¶76} In his fourth assignment of error, Arnold contends that the sentences

imposed were contrary to law. He argues that under R.C. 2929.41(A), a presumption

exists for concurrent prison terms. He also argues that the record does not support

the trial court’s findings justifying the consecutive sentences. This assignment of

error is not well taken.

       {¶77} Before a reviewing court can modify or vacate a felony sentence, it

must clearly and convincingly find that the sentence is contrary to law or that the

record does not support the trial court’s findings. Former R.C. 2953.08(G)(2); State

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; State v. White,

2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).




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                   OHIO FIRST DISTRICT COURT OF APPEALS



      {¶78} In Ohio, there is a statutory presumption in favor of concurrent

sentences for most felony offenses.    R.C. 2929.41(A); State v. Harris, 1st Dist.

Hamilton Nos. C-170266 and C-170267, 2018-Ohio-2850, ¶ 8. The trial court may

overcome that presumption by making the findings set forth in former R.C.

2929.14(C). State v. Palazzolo, 1st Dist. Hamilton No. C-150557, 2016-Ohio-7043, ¶

13.

      {¶79} Former R.C. 2929.14(C)(4) provided:

      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.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       (c) The offender's history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future

       crime by the offender.

       {¶80} When imposing consecutive sentences, a trial court must make the

required findings as part of the sentencing hearing and incorporate those findings in

the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, syllabus; State v. Cephas, 1st Dist. Hamilton No. C-180105, 2019-Ohio-

52, ¶ 43. The court need not use “talismanic words,” but the record must show that

the court engaged in the requisite analysis and that the evidence supports the

findings. Cephas at ¶ 43; State v. Schwarm, 1st Dist. Hamilton No. C-160677, 2017-

Ohio-7626, ¶ 15. The record shows that the court engaged in the requisite analysis

and made the findings at the sentencing hearing and in the judgment entry necessary

to justify the imposition of consecutive sentences.

       {¶81} Arnold also contends that the record does not support the trial court’s

findings. In State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.2d 279,

¶ 16-17, the Ohio Supreme Court clarified that R.C. 2929.11 and 2929.12 apply only to

a review of individual sentences, and R.C. 2953.08(G)(2) provides the “exclusive

means of appellate review of consecutive sentences.” State v. Chandler, 1st Dist.

Hamilton No. C-190153, 2020-Ohio-164, ¶ 6.

       {¶82} R.C. 2953.02(G)(2)(a) provides that a court of appeals may increase,

reduce, or otherwise modify a sentence if it clearly and convincingly finds that “[t]he

record does not support the sentencing court’s findings under * * * division * * *

(C)(4) of section 2929.14 * * * .” The record supports the trial court’s consecutive-

sentences findings, which were based on Arnold’s lengthy criminal record, the

substantial harm he inflicted on the 16-year-old victim due to the beating, and his



                                          23
                     OHIO FIRST DISTRICT COURT OF APPEALS



failure to seek medical treatment for her.      Consecutive sentences were clearly

appropriate. We cannot hold that the sentences imposed were contrary to law, and

we overrule Arnold’s fourth assignment of error.

                        V. Ineffective Assistance of Counsel

       {¶83} Finally, in his fifth assignment of error, Arnold argues that he was

denied the effective assistance of counsel. He argues that his counsel was ineffective

because counsel failed to engage an independent autopsy expert, which he contends

was crucial to show that the victim was beaten by a group of girls, and not by Arnold.

This assignment of error is not well taken.

       {¶84} A court will presume that a properly licensed attorney is competent,

and the defendant bears the burden to show ineffective assistance of counsel. State

v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); Hackney, 1st Dist.

Hamilton No. C-150375, 2016-Ohio-4609, at ¶ 36. To sustain a claim for ineffective

assistance of counsel, the defendant must demonstrate that counsel’s performance

was deficient and that the deficient performance prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hackney

at ¶ 36.

       {¶85} Generally, the decision not to call an expert witness does not constitute

ineffective assistance of counsel because that decision is solely a matter of trial

strategy. State v. Coleman, 45 Ohio St.3d 298, 307-308, 544 N.E.2d 622 (1989);

State v. Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio-2310, ¶ 43. Further,

any testimony that the expert would have provided was purely speculative. Arnold

cannot demonstrate that the outcome of the proceeding would have been different

but for counsel’s failure to hire an expert.       See State v. Pennington, 1st Dist.

Hamilton Nos. C-170199 and C-170200, 2018-Ohio-3640, ¶ 38; State v. McHenry,


                                          24
                    OHIO FIRST DISTRICT COURT OF APPEALS



1st Dist. Hamilton No. C-170671, 2018-Ohio-3383, ¶ 25. Therefore, Arnold has failed

to meet his burden to show ineffective assistance of counsel. See Strickland at 687-

689; Hackney at ¶ 37-38. We overrule Arnold’s fifth assignment of error.

                                    VI. Summary

       {¶86} In sum, we hold that (1) Arnold’s convictions for felonious assault,

abduction, and tampering with evidence were supported by sufficient evidence; (2)

those convictions were not against the manifest weight of the evidence; (3) the trial

court did not err in failing to merge the reckless-homicide and abduction counts for

sentencing; (4) the trial court did not err in imposing consecutive sentences; and (5)

Arnold failed to meet his burden to show ineffective assistance of counsel.

Consequently, we overrule his five assignment of error and affirm the trial court’s

judgment.

                                                                 Judgment affirmed.

MOCK, P.J., and MYERS, J., concur.



Please note:

       The court has recorded its own entry this date.




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