[Cite as State v. Asadi-Ousley, 2017-Ohio-2652.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104267



                                      STATE OF OHIO
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                ASA J. ASADI-OUSLEY
                                                         DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-597885-A

        BEFORE:          E.T. Gallagher, J., Jones, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                        May 4, 2017
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 670218
Northfield, Ohio 44067


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Mary Weston
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

      {¶1} Defendant-appellant, Asa J. Asadi-Ousley (“Asadi-Ousley”), appeals his

convictions and sentence for rape, felonious assault, kidnapping, and his sexually violent

predator conviction. He raises the following assignments of error for review:

      1. The trial court erred in failing to grant trial counsel’s motion to continue
      trial.

      2. The evidence was insufficient as a matter of law to support a finding
      beyond a reasonable doubt that [Asadi-Ousley] was guilty of the sexually
      violent predator specification attached to [Counts 1, 2, and 7] of the
      indictment.

      3. [Asadi-Ousley’s] convictions for rape, felonious assault, kidnapping, and
      the sexual predator specification were against the weight of the evidence.

      4. The trial court erred when it failed to merge the sentences imposed in
      [Counts 1, 2, and 7] as they are allied offenses of similar import.

      5. [Asadi-Ousley] was denied his right to effective assistance of counsel
      guaranteed by Article I, Section 10 of the Ohio constitution and the Sixth
      and Fourteenth Amendments to the United States Constitution when his
      attorney failed to argue that [Asadi-Ousley’s] convictions for rape,
      felonious assault, and kidnapping were allied offenses of similar import.

      {¶2} After careful review of the record and relevant case law, we affirm

Asadi-Ousley ’s convictions, but reverse and remand for proceedings consistent with this

opinion.



                          I. Procedural and Factual History
      {¶3} In July 2015, Asadi-Ousley was charged in a seven-count indictment.

Counts 1 and 2 charged      him with rape, and each count carried a sexually violent

predator specification. Counts 3 and 4 charged him with aggravated robbery. Count 5

charged him with felonious assault, and Counts 6 and 7 charged him with kidnapping.

      {¶4} The matter proceeded to a jury trial, at which the following evidence was

adduced.1

      {¶5} Sometime around October 2008, T.M. moved from Huron, Ohio, to

Cleveland to live with her boyfriend and his father. They lived in a duplex near the

intersection of East 140th Street and Kinsman in Cleveland. T.M. had never lived in

Cleveland and was unfamiliar with the neighborhood. On December 31, 2008, T.M.

decided to spend New Year’s Eve with some friends she recently made. T.M. testified

that she had consumed two alcoholic drinks and smoked some marijuana with her friends.

Around 10:30 p.m., one of her friends drove her home so she could watch the New

Year’s festivities on television with her boyfriend. When she arrived, however, her

boyfriend and his father were not home. The apartment did not have a phone so T.M.

could not call anyone. Since no one was home, T.M. decided to walk to the corner store

to buy some beer to drink while she watched the ball drop in Times Square on television.

T.M. walked to the store around 10:45 p.m. and bought a can of beer. As she was

walking back home, a man grabbed her from behind and held a knife against her neck.


      1The  sexually violent predator specification was tried before the bench. At
the conclusion of trial, the court found Asadi-Ousley guilty of the specification.
He told her not to scream or he would kill her. T.M. testified that she believed she heard

two voices. The attacker covered her mouth with his hand. T.M. testified that she never

observed her attacker’s face because he approached her from behind. With the knife

held to her neck, the attacker pushed T.M., forcing her into an alleyway. The attacker

then struck T.M. in the back of her head and she lost consciousness. T.M. referred to the

alley as “the cut.” She described it as an area between a house and a building.

      {¶6} T.M. awoke to find herself on the ground in the alley, her lip and nose were

bleeding, her vagina was sore, and her head hurt. Her shirt was ripped open and her

pants and underwear were pulled down. She testified that she realized that she had been

raped. Her can of beer and three dollars in change were gone. T.M. walked out of the

alleyway and headed back home. She called her boyfriend from a payphone on her way

back, but her attempt to reach him was unsuccessful. A boy she recognized from the

neighborhood saw her walking and helped her make it back home. When T.M. arrived

home, the house was still empty.2 She laid in bed and cried. T.M. testified that she had

suffered from depression when she was a teenager. She stayed in bed until the morning

of January 3, 2009, when she went to her neighbor’s house and called her boyfriend and

her mother, J.H. She told them what had happened. T.M.’s mother and boyfriend both

advised her to go the hospital. J.H. testified that she remembered getting the phone call



      2T.M.  testified that her boyfriend did not return home until after she was
discharged from the hospital. T.M. testified that it was not unusual for her
boyfriend to be away for long periods of time because he did not drive and did not
have money for bus fare.
from T.M. She still remembers that phone call because of how distraught T.M. sounded.

 T.M. was scared and crying hysterically.

       {¶7} T.M. then called an ambulance and was transported to the hospital. She

brought the clothes she wore on the night of the attack with her to the hospital. T.M.

spoke with police officers at the hospital, and a nurse performed a sexual assault kit on

T.M.

       {¶8} Sexual Assault Nurse Examiner Deanna Johnson (“Nurse Johnson”)

performed T.M.’s examination. Nurse Johnson testified that T.M. had vaginal pain and

bleeding and was crying during the examination. Nurse Johnson further testified that

T.M. disclosed she had been raped vaginally by strangers, one of whom had a knife, and

had been struck in the head and lost consciousness. Nurse Johnson observed a scratch on

T.M.’s neck consistent with T.M.’s report of having a knife held to her neck. Nurse

Johnson collected samples for the sexual assault kit and collected T.M.’s clothing.

       {¶9} Cleveland Police Officer Jenae Treece (“Officer Treece”) responded to the

report of T.M.’s rape and spoke to T.M. at the hospital. T.M. told her that one or

possibly two suspects were involved in the attack, one of which had a knife. Officer

Treece testified that T.M. had a scratch on her neck consistent with a knife being held

there. No suspect was identified during her investigation. Officer Treece described the

area where T.M. was attacked as being between East 139th Street and East 140th Street,

behind a beauty supply store.

       {¶10} T.M. moved to West Virginia after the incident. Almost seven years later,
sometime in 2015, Cleveland police contacted T.M. The officers had her look at some

photographs to identify her attacker, but she was unable to do so because she never saw

his face. T.M. could not identify Asadi-Ousley at trial as her attacker.

       {¶11} Jade McDaniel, a forensic scientist employed with the Ohio Bureau of

Criminal Investigation (“BCI”) testified that T.M.’s sexual assault kit was delivered to the

BCI lab on March 19, 2014, for DNA testing. She performed the DNA testing in this

case. The vaginal samples revealed a mixture of DNA profiles consisting of T.M. and an

unknown male.      A sample from T.M.’s underwear had a mixture of DNA profiles

consistent with T.M.’s and an unknown male.

       {¶12} On March 6, 2015, the lab received a DNA sample from Asadi-Ousley.

McDaniel compared Asadi-Ousley’s DNA sample with the samples in the kit. McDaniel

testified that Asadi-Ousley’s DNA was found in T.M.’s vaginal samples and on T.M.’s

underwear.

       {¶13} At the conclusion of trial, the jury found Asadi-Ousley guilty of both rape

counts, felonious assault, and both kidnapping counts. At sentencing, the trial court

merged the rape counts into one count (Count 2) and merged the kidnapping counts into

one count (Count 7). The trial court sentenced Asadi-Ousley to 15 years to life in prison

on each of Counts 2 and 7 and eight years in prison on Count 5. The court ordered that

the sentences be served concurrently for an aggregate of 15 years to life in prison.

                                  A. Motion to Continue

       {¶14} In his first assignment of error, Asadi-Ousley argues the trial court erred
when it did not grant his December 29, 2015 motion to continue trial.

       {¶15} The decision to grant or deny a motion to continue trial is left to the broad

and sound discretion of the trial judge, and an appellate court may not disturb the trial

court’s ruling absent an abuse of discretion.       Cleveland v. Washington, 8th Dist.

Cuyahoga Nos. 97945 and 97946, 2013-Ohio-367, ¶ 11, citing State v. Unger, 67 Ohio

St.2d 65, 423 N.E.2d 1078 (1981). “The term ‘abuse of discretion’ connotes more than

an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary

or unconscionable.” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d

144 (1980).

       {¶16} A reviewing court determines on a case-by-case basis whether the trial

court’s denial of a continuance motion was so arbitrary as to deprive the defendant of due

process, paying particular attention to the reasons presented to the trial judge at the time

the request was denied. Unger at 67. In determining whether the trial court abused its

discretion, an appellate court weighs “any potential prejudice to a defendant [against]

concerns such as a court’s right to control its own docket and the public’s interest in the

prompt and efficient dispatch of justice.” Id. The Unger court stated:

       In evaluating a motion for a continuance, a court should note, inter alia: the
       length of the delay requested; whether other continuances have been
       requested and received; the inconvenience to litigants, witnesses, opposing
       counsel and the court; whether the requested delay is for legitimate reasons
       or whether it is dilatory, purposeful, or contrived; whether the defendant
       contributed to the circumstance which gives rise to the request for a
       continuance; and other relevant factors, depending on the unique facts of
       each case. See United States v. Burton, supra; Giacalone v. Lucas, supra.
Id. at 67-68.

       {¶17} In the instant case, Asadi-Ousley had an initial trial date of October 28,

2015. On October 12, 2015, Asadi-Ousley filed a motion to continue the trial date. The

trial court granted this motion and set a new trial date of December 2, 2015.          On

November 29, 2015, Asadi-Ousley filed his second motion to continue trial because

defense counsel had not fully recovered from eye surgery on his right eye and had eye

surgery scheduled for his left eye on December 4, 2015. Within the motion, defense

counsel anticipated he would need 30 days to recover.            The trial court granted

Asadi-Ousley’s motion to continue the second trial date and set a trial date of January 4,

2016. Then on December 29, 2015, Asadi-Ousley filed a third motion to continue trial

because defense counsel had not fully recovered from the December 4, 2015 surgery. On

January 4, 2016, the trial court addressed Asadi-Ousley’s third motion on the record as

follows:

       THE COURT: [defense counsel], you made a motion to continue the trial
       once again based on your eyesight once again, is that correct?

       [DEFENSE COUNSEL]: That’s correct, Your Honor.

       THE COURT: We talked about this outside of the presence of the court
       reporter off the record and you correct me if I’m wrong, [defense counsel], I
       believe you indicated you could start today, that you are having trouble
       seeing and you sometimes need a magnifier or magnifying glass?

       [DEFENSE COUNSEL]: I’m using my eyeglasses today. I’m improving
       all the time, I’m just not all the way back.

       THE COURT: So what we had discussed outside of your client’s presence
       and not on the record was that I would tell the jury at the beginning when I
introduce you that you did have this recent cataract surgery and your
eyesight is not 100 percent, so if you seem unsure or unsteady on your feet
or it takes you awhile to read something, that’s because of your surgery and
not to make any inference.

[DEFENSE COUNSEL]: That is correct.

THE COURT: Would that be sufficient for you, [defense counsel]?

[DEFENSE COUNSEL]: Yes. I just have the depth perception problem.
I may reach for something that’s a little bit further than it appears, so I’m
sometimes unsteady on my feet.

THE COURT: So I’ll make my remarks, but certainly feel free to say what
you would like to say about the situation during the course of your voir dire
to the jurors.

[DEFENSE COUNSEL]: Your Honor, I fully discussed everything with

my client and I’m — we are prepared to go forward.

{¶18} The court denied the motion and Asadi-Ousley went forward with trial.
       {¶19} A review of this record reveals that Asadi-Ousley’s defense counsel

affirmatively waived Asadi-Ousley’s third motion to continue on the day of trial when he

told the trial court that they were, in fact, prepared to go forward that day. Moreover,

when applying the Unger factors to the instant case, we cannot conclude that the trial

court’s denial of Asadi-Ousley’s third continuance was unreasonable. The trial court

continued trial on two prior occasions at Asadi-Ousley’s request, and the multiple court

dates caused inconvenience to the state’s witnesses who had to travel to Cuyahoga

County to testify (T.M. traveled from West Virginia, J.H. traveled from Huron, Ohio, and

McDaniel traveled from Richfield, Ohio).        The trial court held a brief hearing and

inquired in depth of the continuance request. Given these facts, we cannot say that the

trial court’s decision to deny Asadi-Ousley’s third motion for continuance was

unreasonable, arbitrary, or unconscionable.

       {¶20} Therefore, the first assignment of error is overruled.

                             B. Sufficiency of the Evidence

       {¶21} In his second assignment of error, Asadi-Ousley argues there is insufficient

evidence to support a finding that he is a sexually violent predator.

       {¶22} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶

113, the Ohio Supreme Court explained the standard for sufficiency of the evidence as

follows:

       Raising the question of whether the evidence is legally sufficient to support
       the jury verdict as a matter of law invokes a due process concern. State v.
       Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In
       reviewing such a challenge, “[t]he relevant inquiry is whether, after viewing
       the evidence in a light most favorable to the prosecution, any rational trier
       of fact could have found the essential elements of the crime proven beyond
       a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
       (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443
       U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶23} We are mindful that in considering the sufficiency of evidence a certain

perspective is required. State v. Eley, 56 Ohio St.2d 169, 172, 383 N.E.2d 132 (1978).

“This court’s examination of the record at trial is limited to a determination of whether

there was evidence presented, ‘which, if believed, would convince the average mind of

the defendant’s guilt beyond a reasonable doubt.’” Id., quoting Atkins v. State, 115 Ohio

St. 542, 546, 155 N.E. 189 (1926). It is the minds of the trier of fact, rather than a

reviewing court, that must be convinced. State v. Thomas, 70 Ohio St.2d 79, 80, 434

N.E.2d 1356 (1982).

       {¶24} In the instant case, the trial court found Asadi-Ousley guilty of the sexually

violent predator specification as set forth in R.C. 2971.01(H)(1), which

defines a “sexually violent predator” as “a person who, on or after January l, l997,

commits a sexually violent offense and is likely to engage in the future in one or more

sexually violent offenses.”    R.C. 2971.01(H)(2)(a)-(f) lists the factors that may be

considered by the factfinder as evidence tending to indicate that there is a likelihood that

the person will engage in the future in one or more sexually violent offenses. It provides:

       (a) The person has been convicted two or more times, in separate criminal
       actions, of a sexually oriented offense or a child-victim oriented offense.
       For purposes of this division, convictions that result from or are connected
       with the same act or result from offenses committed at the same time are
       one conviction, and a conviction set aside pursuant to law is not a
       conviction.
        (b) The person has a documented history from childhood, into the juvenile
        developmental years, that exhibits sexually deviant behavior.

        (c) Available information or evidence suggests that the person chronically
        commits offenses with a sexual motivation.

        (d) The person has committed one or more offenses in which the person has
        tortured or engaged in ritualistic acts with one or more victims.

        (e) The person has committed one or more offenses in which one or more
        victims were physically harmed to the degree that the particular victim’s life
        was in jeopardy.

        (f) Any other relevant evidence.

        {¶25} Asadi-Ousley argues there is no documented history of past sexually violent

offenses, no proof that his behavior is chronic to a degree that it would be likely he would

offend again, and no proof he behaved in a manner that could be construed as torturous

or ritualistic.

        {¶26} While Asadi-Ousley has had several prior convictions for violent offenses,

the convictions in the instant case were his first for sexually oriented offenses. This

court, however, has previously held that the sexually violent predator statute does not

require a defendant to have a prior conviction for a sexually oriented offense to be found

guilty of a sexually violent predator specification. State v. Mitchell, 8th Dist. Cuyahoga

No. 94287, 2010-Ohio-5775 ¶ 26.

        {¶27} Moreover, in determining that Asadi-Ousley is a sexually violent predator, a

review of the record reveals the trial court considered the harm he caused to T.M. and

Asadi-Ousley’s prior criminal record (convictions for aggravated robbery with a gun,
robbery, burglary, and having a weapon while under disability). The court stated:

      [B]ased on the facts of this particular case and based on his violent record,
      I do find him to be a sexually violent predator and find him guilty of the
      sexually violent predator specification beyond a reasonable doubt.

      Obviously aggravated robbery, burglary, having a weapon under disability
      and robbery are all offenses of a serious nature and the one was with a
      weapon, a firearm, so obviously that’s incredibly serious and in this
      particular case, he snatched a woman walking down the street at 10:30 or so
      at night and he didn’t just restrain her of her liberty, that would be bad
      enough, but you actually dragged her into an alley and thereafter threatened
      her life and saying if she told anybody you would kill her and holding the
      knife to her throat and scratching her throat, you then raped her.

      I know the defense was consent. However, the injuries described by the
      victim, the bleeding as described by [the state], the injuries as indicated to
      the hospital personnel when she went to the hospital, the great pain she
      suffered, the psychological harm she suffered as a result of this very, very
      violent act would indicate that his behavior is of such a nature that he is
      likely to re-offend.

      So I make that finding beyond a reasonable doubt and I will set this for
      sentencing at a later date.

      {¶28} Based on the foregoing, we find sufficient evidence to support the sexually

violent predator conviction. Thus, the second assignment of error is overruled.

                         C. Manifest Weight of the Evidence

      {¶29} In his third assignment of error, Asadi-Ousley argues that all of his

convictions are against the manifest weight of the evidence.

      {¶30} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.

92266, 2009-Ohio-3598, ¶ 13, citing Thompkins, 78 Ohio St.3d at 390, 1997-Ohio-52,

678 N.E.2d 541. The Ohio Supreme Court in State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:

       [T]he reviewing court asks whose evidence is more persuasive — the
       state’s or the defendants? * * * “When a court of appeals reverses a
       judgment of a trial court on the basis that the verdict is against the weight of
       the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
       with the factfinder’s resolution of the conflicting testimony.” [Thompkins
       at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
       L.Ed.2d 652.

       {¶31} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Martin.

       {¶32} We note that when considering a manifest weight challenge, the trier of fact

is in the best position to take into account inconsistencies, along with the witnesses’s

manner, demeanor, gestures, and voice inflections, in determining whether the proffered

testimony is credible. State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶

26; see also State v. Lilliard, 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385,

2013-Ohio-4906, ¶ 93 (in considering the credibility of witnesses on a manifest weight

challenge, an appellate court is “guided by the presumption” that the jury, or the trial

court in a bench trial, is “‘best able to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.’” Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984)). Therefore, we afford great deference to the factfinder’s

determination of witness credibility.   State v. Ball, 8th Dist. Cuyahoga No. 99990,

2014-Ohio-1060, ¶ 36.

      {¶33} Asadi-Ousley argues the jury and trial court “lost their way” because T.M. is

unreliable and lacks credibility. In support of his argument, he refers to her testimony

that, on the night of the attack, she had been consuming alcohol and smoking marijuana

with friends, she could not recall if there were one or two assailants, she waited several

days before going to the hospital, and she suffers from depression. We disagree.

      {¶34} Asadi-Ousley was found guilty based on the evidence of several witnesses

and corroborated by DNA testing. T.M. testified that she was approached from behind

on the street by a stranger, forced at knife point into a dark alley, and then struck so

violently over the head that she lost consciousness. When she regained consciousness,

her shirt was torn open and her pants and underwear were down. She knew that she had

been violated sexually.     T.M. testified how the rape has adversely affected her

psychologically. She suffered from depression and laid in bed for days before deciding

to call her mother. Her mother testified as to the phone call she received from T.M., and

the hysteria in T.M.’s voice. The nurse who treated T.M. testified to T.M.’s demeanor,

pain, bleeding, and visible injuries. Asadi-Ousley’s DNA was found on T.M.’s vaginal

swabs and underwear. T.M. testified that her only consensual partner was her boyfriend.

      {¶35} Based on the foregoing, it cannot be said the jury “lost its way” in finding
Asadi-Ousley guilty of rape, kidnapping, and felonious assault. It further cannot be said

that the trial court “lost its way” in finding Asadi-Ousley to be a sexual predator. This is

not the rare case where the trier of fact clearly lost its way and created a manifest

miscarriage of justice.

       {¶36} Accordingly, the third assignment of error is overruled.

                                        D. Merger

       {¶37} In his fourth assignment of error, Asadi-Ousley argues the trial court erred

when it failed to merge Counts 2 (rape), 5 (felonious assault), and 7 (kidnapping) because

they are allied offenses of similar import.

       {¶38} In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,

the Ohio Supreme Court held that

       [a]n accused’s failure to raise the issue of allied offenses of similar import
       in the trial court forfeits all but plain error, and a forfeited error is not
       reversible error unless it affected the outcome of the proceeding and
       reversal is necessary to correct a manifest miscarriage of justice.

Id. at ¶ 3. The court further explained that

       an accused has the burden to demonstrate a reasonable probability that the
       convictions are for allied offenses of similar import committed with the
       same conduct and without a separate animus; and, absent that showing, the
       accused cannot demonstrate that the trial court’s failure to inquire whether
       the convictions merge for purposes of sentencing was plain error.

Id.

       {¶39} In this case, Asadi-Ousley argues that the rape, kidnapping, and felonious

assault were committed with the same animus. He contends that the movement of

coming up from behind T.M., putting a knife to her neck, telling her if she screamed he
would kill her, and pushing her into an alleyway where the rape and robbery occurred,

was done for the purpose of raping her with no separate, identifiable harm. In support of

his argument, Asadi-Ousley relies on State v. Echols, 8th Dist. Cuyahoga No. 102504,

2015-Ohio-5138.

       {¶40} In Echols, victim one was walking home late at night. As she passed a

large tree or shrub near East 93rd Street and Woodland Avenue, a person jumped out

from the tree and came up behind her. The individual held a knife to her throat and

threatened her. He moved her from the sidewalk to behind the tree and raped her.

Another attack occurred approximately five years later, involving a different victim.

Victim two was unavailable to testify at trial because she was murdered in 2007. Her

medical records documented her recounting of events that occurred. She stated that she

was walking home when a car pulled up and an unknown individual told her to get into

the car or he would hurt her. She complied. She was hit in the head with a brick and

raped. Sexual assault kits were performed on both victims. DNA testing revealed that

the defendant’s DNA was consistent with that of the attacker in both victims. Id. at ¶

3-5.

       {¶41} On appeal, defendant argued that each rape conviction should have merged

with each kidnapping conviction.      Relying on State v. Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892, we found that the asportation of victim one was slight.

Victim one

       was moved from the sidewalk to behind a tree next to the sidewalk. There
       was no increased risk of harm associated with this movement apart from
       that associated with the sexual assault. This movement was done for the
       purpose of raping [victim one] with no separate, identifiable harm. The
       movement was done in conjunction with the rape, and was not separated by
       any significant length of time or distance.

Id. at ¶ 38. We reasoned, because “the movement was slight, occurred close in time to

the rape, and was done solely to facilitate the rape[,] the trial court erred when it failed to

merge the rape and kidnapping counts related to [victim one].” Id. at ¶ 39.

       {¶42} We contrasted victim one’s movement with the movement of victim two,

who was abducted from the bus stop. With victim two, the defendant forced her to get

into his vehicle, hit her with a brick once in the car, and he drove her away from the area.

We found that the “asportation of [victim two] constituted a separate crime for which

[defendant] may be separately punished.” Id. at ¶ 40.

       {¶43} In Ruff, the Ohio Supreme Court explained that an allied offenses analysis is

not limited to consideration of the defendant’s conduct. Rather, the court held that while

an allied offenses analysis begins with an examination of the defendant’s conduct, courts

must also consider whether: (1) the offenses are dissimilar in import or significance, (2)

the offenses were committed separately, or (3) the offenses were committed with separate

animus or motivation. Id. at paragraph three of the syllabus.

       {¶44} With respect to the first factor, the court explained that two or more offenses

are dissimilar 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.” Id. at paragraph two of the syllabus. Two or more

offenses of dissimilar import are not subject to merger because the harm to each victim is
“separate and distinct.” Id. at ¶ 26.

       {¶45} Applying the foregoing precedent, we disagree with Asadi-Ousley’s

assertion that his felonious assault conviction was required to merge with his rape and

kidnapping convictions. In our view, Asadi-Ousley’s act of striking T.M. on the top of

her head unquestionably involved a separate identifiable harm and, therefore, is not

subject to merger. However, with respect to the rape and kidnapping convictions, we

find   Asadi-Ousley’s    reliance   on   Echols,   8th   Dist.   Cuyahoga   No.   102504,

2015-Ohio-5138, to be persuasive.

       {¶46} As in Echols, this is not the case where the kidnapping of T.M. involved a

“long chain of events” that was not merely incidental to the rape. Echols at ¶ 39, citing

State v. Keeler, 8th Dist. Cuyahoga No. 101748, 2015-Ohio-1831, ¶ 49-50. To the

contrary, the movement of T.M. was slight, occurred close in time to the rape, and was

done solely to facilitate the rape. Similar to the movement of victim one “from the

sidewalk to a tree” in Echols, the testimony presented in this case established that T.M.

was moved from the sidewalk to a nearby alleyway or “the cut.” There was no increased

risk of harm associated with this movement apart from that associated with the sexual

assault. This movement was done for the purpose of raping T.M. and was not separated

by any significant length of time or distance. Under these circumstances, we find the

trial court erred by failing to merge the offenses of kidnapping and rape under the facts

presented herein.

       {¶47} Accordingly, Asadi-Ousley’s fourth assignment of error is sustained. On
remand, the court must conduct a new sentencing hearing where the state shall elect on

which charge the court will impose sentence.

       {¶48} Based on our resolution of the fourth assignment of error, the fifth

assignment of error is moot.

       {¶49} Judgment is affirmed in part, reversed in part and remanded to the lower

court for further proceeding consistent with this opinion.

       It is ordered that appellant and appellee share costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


_______________________________________
EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., CONCURS;
MARY EILEEN KILBANE, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE OPINION


MARY EILEEN KILBANE, J., CONCURRING IN PART AND DISSENTING IN
PART:

       {¶50} I concur with the majority’s resolution of Asadi-Ousley’s first, second, and

third assignments of error.      I respectfully dissent, however, from the majority’s
conclusion in the fourth assignment of error that Asadi-Ousley’s rape and kidnapping

counts merge for purposes of sentencing. In finding that these offenses do not merge, I

would also find that Asadi-Ousley did not receive ineffective assistance of counsel.

       {¶51} Contrary to the majority’s holding, I find the factual scenario in Echols, 8th

Dist. Cuyahoga No. 102504, 2015-Ohio-5138, distinguishable from the instant case. In

Echols, victim one was walking home late at night. As she passed a large tree or shrub, a

person jumped out from the tree and came up behind her. The individual held a knife to

her throat and threatened her. He moved her from the sidewalk to behind the tree and

raped her. Another attack occurred approximately five years later, involving a different

victim. Victim two was walking home when a car pulled up and an unknown individual

told her to get into the car or he would hurt her. She complied. She was hit in the head

with a brick and raped. Sexual assault kits were performed on both victims. DNA

testing revealed that the defendant’s DNA was consistent with that of the attacker in both

victims. Id. at ¶ 3-5.

       {¶52} On appeal, we found that the asportation of victim one was slight. Victim

one was moved from the sidewalk to behind a tree next to the sidewalk. There was no

increased risk of harm associated with this movement apart from that associated with the

sexual assault. This movement was done for the purpose of raping with no separate,

identifiable harm. The movement was done in conjunction with the rape and was not

separated by any significant length of time or distance. Id. at ¶ 38. We reasoned,

because “the movement was slight, occurred close in time to the rape, and was done
solely to facilitate the rape[,] the trial court erred when it failed to merge the rape and

kidnapping counts related to [victim one].” Id. at ¶ 39.

       {¶53} We contrasted victim one’s movement with the movement of victim two,

who was abducted from the bus stop. With victim two, the defendant forced her to get

into his vehicle, hit her with a brick once in the car, and he drove her away from the area.

We found that the “asportation of [victim two] constituted a separate crime for which

[defendant] may be separately punished.” Id. at ¶ 40.

       {¶54} I would find that the facts surrounding T.M.’s attack are more analogous to

victim two, rather than victim one, in the Echols case. Victim one was moved from the

sidewalk to behind a tree next to the sidewalk, where she was raped. Based on the facts

in Echols, the tree was on the tree lawn next to the sidewalk, which was not a concealed

area. Whereas with victim two, the defendant forced her into a car and drove her to

another location, where he committed the rape. Here, the inception of the crime was

when T.M. was approached from behind by knifepoint as she was walking down the

street. This act caused her to submit to being pushed into a secluded alleyway, behind a

beauty supply store (kidnapping), where she was knocked unconscious by a blow to the

head and then raped.

       {¶55} This movement, just as the movement of victim two, constituted a separate

crime for which Asadi-Ousley may be separately punished. The movement was not

slight and was separated by significant distance, and the confinement was attempted to be

kept secret, subjecting T.M. to a substantial increase in harm separate from the rape.
Specifically, Asadi-Ousley forcibly moved T.M. by knifepoint from a publicly visible

area into a concealed alleyway, behind a beauty supply store, where he was more easily

able to perpetrate the rape of an unconscious T.M. T.M. then awoke to find herself on

the ground with her lip and nose bleeding, her shirt ripped open, and her pants and

underwear pulled down.       See State v. Lovato, 2d Dist. Montgomery No. 25683,

2014-Ohio-2311 (where court of appeals affirmed the trial court’s decision finding that

defendant’s rape and kidnapping charges of victim two did not merge for purposes of

sentencing). The Lovato court found that the kidnapping was not merely incidental to

the rape because the defendant dragged the victim through an alley to a nearby garage,

while she was unconscious, and raped her. Id. at ¶ 19.

       {¶56} For these reasons, I would find that the rape and kidnapping convictions are

not subject to merger.
