[Cite as State v. Randle, 2018-Ohio-207.]


                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY



STATE OF OHIO,
                                                           CASE NO. 9-17-08
       PLAINTIFF-APPELLEE,

       v.

KOREY RANDLE,                                              OPINION

       DEFENDANT-APPELLANT.


STATE OF OHIO,
                                                           CASE NO. 9-17-09
       PLAINTIFF-APPELLEE,

       v.

KOREY RANDLE,                                              OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Marion County Common Pleas Court
                   Trial Court No. 14-CR-0444 and 16-CR-0596

                                      Judgments Affirmed

                            Date of Decision: January 22, 2018



APPEARANCES:

        Nathan D. Witkin for Appellant

        Kevin P. Collins for Appellee
Case Nos 9-17-08 and 9-17-09


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Korey T. Randle (“Randle”) appeals the

judgments of the Marion County Court of Common Pleas, alleging (1) that the

offenses of aggravated robbery and kidnapping should have merged at sentencing;

(2) that the State violated ethical duties in the prosecution of this case; (3) that the

trial court erred by overruling his motion for a mistrial after the prosecution

requested a recess to “bolster” a State witness’s testimony; and (4) that the jury

returned a verdict against the manifest weight of the evidence. For the reasons set

forth below, the judgments of the lower court are affirmed.

                            Facts and Procedural History

       {¶2} At 7:00 in the morning on July 22, 2017, Matthew Thomas (“Thomas”)

left work and returned to his home on Cherry Street in Marion, Ohio. Trial Tr. 315.

At roughly 10:00 that morning, Randle came to Thomas’s house for a visit. Id. at

317. According to Thomas, he and Randle, at some point that morning, decided to

commit a robbery. Id. at 322. They got in Thomas’s car—which was a maroon

Chrysler PT Cruiser with flames decaled on the front—and drove to Randle’s house.

Id. at 322, 354. Thomas testified that they picked up jumpsuits at Randle’s house

and then drove to Al’s Country Market. Id. at 322, 324.

       {¶3} Once they arrived at Al’s Country Market, Thomas parked in the lot in

front of the store. Id. at 324. Thomas testified that he got out of the car and walked

into the front door of the store while Randle walked around the back of the store.

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Id. at 325. When Thomas entered the store, no one was behind the counter. Id. at

148, 326-327. Thomas testified that he then saw Randle walk around the corner

with an employee of Al’s Country Market—who was Paulette Bullion

(“Bullion”)—walking in front of him at knife point. Id. at 326-327.

       {¶4} Thomas testified that he and Randle yelled orders to Bullion. Id. at 327.

Bullion testified that, at this point, the two men ordered her to put the money from

the register into a bag. Id. at 174. Once Bullion had emptied the contents of the

cash register and the lottery box into a plastic bag, Thomas told Bullion to go to the

back of the store. Id. at 349. Randle, holding his knife, walked Bullion to the back

of the store where he directed Bullion to go into a closet. Id. at 352. Thomas and

Randle then pushed a table and chair in front of the door. Id. at 352. After the table

was secured in front of the door, Thomas grabbed Bullion’s purse off of the table,

and Randle and Thomas exited the store. Id. at 352-353. Shortly after Thomas and

Randle left, a customer entered the store. Id. at 152. Bullion, from inside the closet,

called out to the customer, who let Bullion out of the closet. Id. Bullion then called

the police. Id.

       {¶5} Thomas testified that he and Randle then drove out of the parking lot of

Al’s Country Market and went to the house of Iris Rogers (“Rogers”), who was

Randle’s cousin. Id. at 327, 426. At Rogers’s house, Randle gave Thomas his half

of the money that they had stolen from Al’s Country Market. Id. at 332. Thomas

stated that he spent this money on cocaine at Rogers’s house. Id. at 332. From this

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location, Thomas began driving back to his house on Cherry Street. Id. at 334. Law

enforcement had, by this time, identified the maroon PT Cruiser that Thomas drove

to Al’s Country Market as belonging to Thomas and were searching for Thomas.

Id. When Thomas drove onto Cherry Street, the police saw his vehicle and

apprehended him. Id. Thomas did not cooperate with the sheriff’s office in this

investigation. Id. at 338. He did cooperate with the prosecutor’s office after a plea

agreement had been negotiated. Id. at 378. At this point, Thomas implicated Randle

in the offenses that were committed in Al’s Country Market. Id.

       {¶6} Randle was indicted on November 17, 2016. Doc. 1. Randle’s trial

began on February 2, 2017. Trial Tr. 1. At trial, Bullion testified about the incident.

Id. at 147. On cross examination, she testified about the statement that she gave to

the police. Id. at 178, 180. The Defense questioned her about a statement she made

that indicated that one of the perpetrators sounded as though they had a foreign

accent. Id. at 180. However, at trial, she explained that the accent sounded like an

attempt by the perpetrator to disguise his voice. Id. She also stated that the

perpetrator sounded clearer as he continued to speak. Id.

       {¶7} At the beginning of Thomas’s direct examination, the prosecutor asked

Thomas whether he committed the robbery with another person. Id. at 310. In

response, Thomas said, “I need a minute.” Id. At this point, the prosecutor asked

the trial judge for a brief recess and said, “I don’t want to coach him.” Id. The trial

court ordered a recess of ten minutes over the objection of the Defense. Id. at 311.

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Case Nos 9-17-08 and 9-17-09


After the ten-minute recess, the Defense made a motion for a mistrial, arguing that

the jury may have been compromised by this “prejudicial occurrence” and that

Thomas should have been prepared to testify prior to coming to court on the day of

trial. Id. at 311. In response the prosecutor said,

       Your Honor, I don’t think it’s unusual for an accomplice witness
       to get cold feet. He’s worried about his health and safety. He’s
       worried about the health and safety of his family. I just reminded
       him that—what he’s supposed to be doing here today. He needed
       to gird his loins for a moment. He’s prepared to testify. I don’t
       think a mistrial is necessary. I think that would be the strictest
       sanction. I don’t know that the jury has been compromised at all.

Id. at 312. The trial court then overruled the Defense’s motion for a mistrial. Id.

       {¶8} Thomas then testified as to why he was “reluctant to testify.” Id. at 314.

Thomas explained that, while he was in the county jail, another inmate was attacked.

Id. Thomas identified the person who had perpetrated this attack. Id. at 314-315.

Ten months after Thomas testified in that case, he was called a “snitch” by another

inmate who struck him in the face with “a lock in a sock.” Id. at 315-316. The force

of this blow caused scarring to his face and broke his jaw. Id. at 315. As the result

of this prior incident, Thomas expressed concern at trial that he would be labeled a

“snitch” and would be attacked again. Id. at 316.

       {¶9} On cross examination, the Defense discussed several false statements

that Thomas had made to the grand jury. Id. at 398-407. Thomas admitted that he

lied to the grand jury about his involvement in these crimes. Id. at 401. On redirect,

he testified, however, that he did not lie to the grand jury about Randle’s

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involvement in these crimes. Id. at 410, 424. He also pointed to the fact that his

statements about Randle’s involvement before the grand jury were consistent with

his statements before the trial court. Id. The Defense also questioned Thomas about

his three prior convictions, several false statements he made to the police, his

reluctance to testify at trial about Randle’s involvement, and the terms of his plea

agreement. Id. 385, 386, 394, 409-410.

      {¶10} The State also called several witnesses who connected Randle and

Thomas to each other on the day of the incident. Kyle J. Hopkins was one of

Thomas’s neighbors and testified that he saw Randle and Thomas together on the

morning of July 22, 2016. Id. at 445. Angelo Flores then testified that he saw

Randle on Cherry Street shortly after Thomas was arrested and that he gave Randle

a ride back to Randle’s house. Id. at 439, 442. Rogers testified that Randle and

Thomas were at her house on July 22, 2016. Id. at 427. The prosecution also

introduced a recording of a phone call that Thomas made from jail in which he

speaks of being with Randle on July 22, 2016. Id. at 361. The prosecution also

called Peggy Romine (“Romine”), who works at the County Corrections Center, to

authenticate documents that showed Randle deposited funds into Thomas’s

commissary account while Thomas was in jail. Id. at 272-273.

      {¶11} On February 6, 2017, the jury found Randle guilty of aggravated

robbery in violation of R.C. 2911.01(A)(1) and kidnapping in violation of R.C.



                                         -6-
Case Nos 9-17-08 and 9-17-09


2905.01(A)(2). Doc. 98, 99. Randle filed his timely notice of appeal on March 31,

2017. Doc. 127. On appeal, Randle raises the following four assignments of error:

                            First Assignment of Error

       The offenses of aggravated robbery and kidnapping should have
       merged in this matter.

                           Second Assignment of Error

       In this matter, the State violated an ethical duty to reveal that the
       indictment in this matter was based on perjured testimony,
       demonstrate [sic] that the perjury had been remedied before
       proceeding to trial, and reveal [sic] any promises of immunity
       regarding such perjury.

                            Third Assignment of Error

       The trial court improperly overruled appellant’s motion for a
       mistrial regarding the State’s request for a recess to bolster their
       witness’s testimony.

                           Fourth Assignment of Error

       The jury’s decision to convict the appellant was against the
       manifest weight of the evidence.

We will consider these assignments of error in the order in which they were

presented in the appellant’s brief.

                             First Assignment of Error

       {¶12} In his first assignment of error, Randle argues that the offenses of

kidnapping and aggravated robbery should have merged upon sentencing because

these acts were committed together and there was “not * * * a point in which one

offense ends and the other offense begins.” Appellant’s Brief, 4. Specifically, the

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Case Nos 9-17-08 and 9-17-09


Defense argues that the robbery began when the appellant brandished a weapon in

front of the victim and ended when the appellant took the victim’s purse and left the

store. The Defense contends that the appellant ordered the victim into a locked

closet in between the two events that constituted the beginning and end of the

robbery. Thus, he claims that these two offenses should merge because the robbery

had not ended by the time he committed the crime of kidnapping.

                                  Legal Standard

       {¶13} “Both R.C. 2941.25 and the Double Jeopardy Clause prohibit multiple

convictions for the same conduct.” State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-

2696, 69 N.E.3d 627, ¶ 28, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-

Ohio-1, 922 N.E.2d 923, ¶ 27. R.C. 2941.25 reads:

       (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).

       {¶14} Under Ohio law, if a defendant is charged with allied offenses—which

are multiple crimes committed with the same conduct—the “trial court is required

to merge [these offenses] at sentencing.” Sergent at ¶ 28, quoting Underwood at ¶

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Case Nos 9-17-08 and 9-17-09


27.   To determine “whether two offenses are…subject to merger under R.C.

2941.25, the conduct of the accused must be considered.” State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 16, quoting State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus.

       However, multiple convictions are permitted ‘if we answer
       affirmatively to just one of the following three questions: (1) Were
       the offenses dissimilar in import or significance? (2) Were they
       committed separate? And (3) Were they committed with a
       separate animus or motivation?’

(Citations omitted.) State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349,

¶ 14, quoting State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997,

¶76, citing Ruff at paragraph three of the syllabus.

       {¶15} “If the offenses are committed with the same conduct but with a

separate animus, multiple convictions can be sustained.” State v. Brentlinger, 2017-

Ohio-2588, --- N.E.3d ---, ¶ 28 (3d Dist.), citing State v. Hadding, 3d Dist. Auglaize

No. 2-12-14, 2013-Ohio-643, ¶ 14. “The Supreme Court of Ohio has defined

animus as “purpose, or more properly, immediate motive.” Brentlinger at ¶ 28,

quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). “Whether

offenses are allied offenses of similar import is a question of law that this court

reviews de novo.” State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-Ohio-5555,

¶ 93, citing State v. Stall, 3d Dist. Crawford No. 3-10-12, 2011-Ohio-5733, ¶ 36.

                                   Legal Analysis



                                         -9-
Case Nos 9-17-08 and 9-17-09


         {¶16} In this case, the offenses of robbery and kidnapping were each

committed with a separate animus.1 The crime of robbery often involves the crime

of kidnapping. State v. Jenkins, 15 Ohio St.3d 164, 198, 473 N.E.2d 264 (1984), fn.

29. As Randle was leading Bullion towards the front of the store at knife point, he

was kidnapping her for the purpose of facilitating a robbery. At this point, the two

offenses were committed pursuant to the same animus: Randle’s intent to perpetrate

a robbery motivated him to commit the offense of kidnapping. However, after

Bullion had emptied the contents of the cash register and the lottery box into the

bag, Randle ordered Bullion into the back room where he locked her in a closet.

         {¶17} While walking Bullion to the front of the store at knife point was

incidental to the crime of robbery, walking her to the back of the store at knife point

and then locking her in a closet was not a part of facilitating the robbery. The

offense that was committed when Randle locked Bullion in a closet was not

necessary to further the robbery and was not incidental to the commission of the

robbery. Rather, this separate series of actions was undertaken for the purpose of

facilitating Randle’s escape. His intent to commit a robbery was no longer what

animated his actions. At the time the robbery was completed, his “immediate




1
  Under Ruff, “offenses do not merge unless they involve (1) the ‘same conduct,’ (2) a ‘similar import,’ and
(3) a single ‘animus.’” Ruff at ¶ 38. Thus, the Defense’s argument fails if any one of these three factors is
absent in this case. Since we find that the facts of this case clearly demonstrate that the offense of kidnapping
was committed with a separate animus from the offense of robbery, we will limit our analysis to determining
whether these offenses had separate motivations, and we will not analyze the facts of this case to determine
whether the other two factors are present.

                                                     -10-
Case Nos 9-17-08 and 9-17-09


motive” changed: he was now motivated by a desire to evade apprehension.

Locking Bullion in a closet prevented her from notifying the authorities and gave

him more time to escape. Since a different animus motivated each of these offenses,

the crime of kidnapping in violation of R.C. 2905.01(A)(2) was committed in

addition to the crime of robbery. These crimes are not, therefore, allied offenses

subject to merger. For these reasons, Randle’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶18} In his second assignment of error, Randle argues that the State violated

several ethical duties while prosecuting this case. First, the Defense alleges that

the State used testimony that contained perjury to secure an indictment against the

appellant. Second, the Defense claims that the State did not disclose the fact that

the grand jury heard testimony that contained perjury, which, according to the

Defense, was evidence that was favorable to the defendant under Brady v.

Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1972). Third, the

Defense suggests that the State may have granted immunity to one of the key

witnesses against Randle without disclosing this fact. We will address each of these

arguments in turn.

                        Legal Standard for the Perjury Issue

       {¶19} R.C. 2921.11 defines the offense of perjury and reads, in its relevant

part, as follows:



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Case Nos 9-17-08 and 9-17-09


       (A) No person, in any official proceeding, shall knowingly make a
       false statement under oath or affirmation, or knowingly swear or
       affirm the truth of a false statement previously made, when either
       statement is material.

       (B) A falsification is material, regardless of its admissibility in
       evidence, if it can affect the course or outcome of the proceeding.
       It is no defense to a charge under this section that the offender
       mistakenly believed a falsification to be immaterial.

“Based upon the plain language of R.C. 2929.11(B), a false statement is material if

it can affect the outcome of a proceeding. R.C. 2929.11(B) does not require that the

outcome actually be affected.” (Emphasis sic.) State v. Douglas, 3d Dist. Marion

No. 9-05-24, 2005-Ohio-6304, ¶ 14.

                       Legal Analysis for the Perjury Issue

       {¶20} Randle’s first argument alleges that the prosecution based its

indictment on perjured testimony from Thomas. While the Defense cross examined

Thomas, defense counsel introduced the false statements that Thomas made to the

grand jury. Further, Thomas admitted at trial that he had lied to the grand jury in

making these statements. However, these false statements did not constitute perjury

as these were not material statements. See State v. Widmer, 12th Dist. Warren No.

CA2012-02-008, 2013-Ohio-62, ¶ 41, quoting Monroe v. Smith, 197 F.Supp.2d 753,

762 (E.D.Mich.2001) (holding “the fact ‘that a witness contradicts [himself] or

changes [his] story also does not establish perjury.’”). The grand jury was convened

to determine whether an indictment should be issued against Randle. Thus, in this



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Case Nos 9-17-08 and 9-17-09


context, a false statement would have had to have been able to affect the decision as

to whether an indictment should be issued against Randle in order to be material.

        {¶21} The false statements that Thomas made did not address Randle’s

activities in the matter before the grand jury. Rather, the false statements that

Thomas made to the grand jury addressed his involvement in this crime and

marginalized his role in committing this offense. The statements that Thomas made

to the grand jury about Randle’s criminal activities were consistent with the

statements that he made about Randle at trial. In the absence of these false

statements, the indictment would not have been based on insufficient evidence. See

State v. Cruise, 4th Dist. Washington No. 85-CA-28, 1987 WL 7009, *4 (Feb. 24,

1987),2 citing 2 La Fave Criminal Procedure 312 Sec. 15. Since the grand jury was

considering whether to indict Randle, these particular false statements could not

have had an effect on the outcome of the proceeding because the false statements

did not address Randle’s activities. Compare State v. Wimbush, 5th Dist. Richland

No. 2005CA0024, 2005-Ohio-6436, ¶ 15. Thus, the prosecution did not violate an

ethical duty in this regard as alleged by Randle.

                        Legal Standard for the Brady Violation Issue




2
  In Cruise, the Court held, “No Ohio cases have been cited and we are unaware of any which authorizes
dismissal of an indictment because perjured testimony was presented to the grand jury.” Cruise at *4.
Similarly, in this case, appellant does not cite any Ohio law. Rather, appellant argues that the indictment
should have been dismissed as this is the practice in federal court. Since we have determined that the
indictment was not based upon perjured testimony, we need not address the argument that this Court should
follow the practices of federal courts.

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Case Nos 9-17-08 and 9-17-09


       {¶22} A Brady violation occurs “[w]hen the prosecution withholds material,

exculpatory evidence in a criminal proceeding * * *.” State v. Johnston, 39 Ohio

St.3d 48, 60, 529 N.E.2d 898 (1988). See Brady, supra, at 86-87. Specifically, “the

suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady, supra, at 87.

       [I]n determining whether the prosecution improperly suppressed
       evidence favorable to an accused, such evidence shall be deemed
       material “only if there is a reasonable probability that, had the
       evidence been disclosed to the defense, the result of the proceeding
       would have been different. A ‘reasonable probability’ is a
       probability sufficient to undermine confidence in the outcome.”

Johnston at 61, quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375,

87 L.Ed.2d 481 (1985). “The defendant has the burden to prove a Brady violation

rising to the level of a due-process violation.” State v. Pickens, 141 Ohio St.3d 462,

2014-Ohio-5445, 25 N.E.3d 1023, ¶ 102.




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Case Nos 9-17-08 and 9-17-09


                    Legal Analysis for the Brady Violation Issue

       {¶23} In his second argument under this assignment of error, Randle alleges

that the prosecution committed a Brady violation by failing to disclose the perjured

statements made by Thomas to the grand jury. The Defense, however, did not carry

the burden of establishing that a due process violation occurred because the Defense

cannot demonstrate that there is a reasonable probability that the outcome would

have been different had the Defense received these statements in a different manner.

See Johnston at 61.

       {¶24} By the time of trial, the Defense had the false statements that Thomas

made to the grand jury in their possession and had time to review these statements

before Thomas testified. See State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d

937 (2001), citing State v. Wickline, 50 Ohio St.3d 114, 116, 552 N.E.2d 913, 917

(1990). Further, the Defense was able to introduce these false statements on cross

examination while Thomas was testifying. Since the Defense had these statements

by the time of trial and introduced them on cross examination, Randle cannot

establish a due process violation in this case because the Defense did not show how

the manner in which the Defense received these statements would have affected the

outcome of the case.

               Legal Standard for Alleged Promise of Immunity Issue

       {¶25} “App.R. 9(A)(1) limits the record on appeal to ‘[t]he original papers

and exhibits thereto filed in the trial court, the transcript of the proceedings, if any,

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Case Nos 9-17-08 and 9-17-09


including exhibits, and a certified copy of the docket and journal entries prepared

by the clerk of the trial court * * *.’” State v. White, 3d Dist. Seneca No. 13-14-29,

2015-Ohio-817, ¶ 16, quoting App.R. 9(A)(1). See State v. Snyder, 3d Dist. Seneca

No. 13-12-38, 2013-Ohio-2046, ¶ 16. “Since a reviewing court can only reverse the

judgment of a trial court if it finds error in the proceedings of such court, it follows

that a reviewing court should be limited to what transpired in the trial court as

reflected by the record made of the proceedings.” State v. Ishmail, 54 Ohio St.2d

402, 405-406, 377 N.E.2d 500, 502 (1978). “A reviewing court cannot add matter

to the record before it, which was not a part of the trial court’s proceedings, and then

decide the appeal on the basis of the new matter.” Id. at syllabus.

              Legal Analysis for Alleged Promise of Immunity Issue

       {¶26} In this argument, the Defense alleges that the prosecution may have

given Thomas a promise of immunity in exchange for his testimony at trial and

failed to disclose this alleged immunity agreement. However, no evidence in the

record suggests a promise of immunity was extended to Thomas. On direct appeal,

our review of the trial court’s determinations is limited to the contents of the record.

The Defense did not present any information at trial that would substantiate this

claim, making this argument purely speculative.

       {¶27} Under this assignment of error, Randle advanced three arguments that

purportedly supported the assertion that the State violated various ethical duties in

this prosecution of this case. However, after examining these three arguments, we

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Case Nos 9-17-08 and 9-17-09


do not find evidence that the State violated its ethical duties as alleged by appellant.

For this reason, Randle’s second assignment of error is overruled.

                               Third Assignment of Error

       {¶28} In his third assignment of error, Randle asserts that trial court erred by

failing to grant his motion for a mistrial after the State asked for a recess to speak

with one of its witnesses. Randle claims that the State requested this recess “for the

specific purpose of affecting [a] witness’s testimony.” Appellant’s Brief, 8. While

the State explicitly stated that it was not going to coach Thomas, Randle alleges that

the recess “seemed to be aimed at talking to the witness about how he should

testify.” Id. Randle contends that this practice violated his due process rights, his

right to a fair trial, and his right to confrontation.

                                     Legal Standard

       {¶29} “The grant or denial of a mistrial lies within the sound discretion of

the trial court. However, a trial court need not declare a mistrial unless ‘the ends of

justice so require and a fair trial is no longer possible.’” State v. Trimble, 122 Ohio

St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 173, quoting State v. Franklin, 62

Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). Thus, a trial court’s decision to deny a

motion for a mistrial will not be reversed absent an abuse of discretion. State v.

Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623, 634 (1995). “The term ‘abuse of

discretion’ connotes more than an error of law or of judgment; it implies that the

court's attitude is unreasonable, arbitrary or unconscionable.” State v. Ortega, 3d

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Case Nos 9-17-08 and 9-17-09


Dist. Hancock No. 5-16-17, 2017-Ohio-239, ¶ 10, quoting State v. Adams, 62 Ohio

St.2d 151, 157, 404 N.E.2d 144, 149 (1980). “When applying the abuse of

discretion standard, a reviewing court is not free to merely substitute its judgment

for that of the trial court.” State v. Thompson, 2017-Ohio-792, 85 N.E.3d 1108, ¶

11, quoting In re Jane Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991).

                                  Legal Analysis

      {¶30} In this argument, the appellant asserts that the trial court should have

declared a mistrial after the prosecution requested a recess to speak with Thomas,

alleging that the State coached Thomas during the recess. First, we note that the

trial was an adversarial proceeding in “which the defense counsel was free to

explore upon examination any coaching or preparation of the [S]tate’s witnesses.”

State v. King, 3d Dist. Seneca No. 13-01-20, 2002 WL 479159, *3 (March 29, 2002).

      The opposing counsel in the adversary system is not without
      weapons to cope with ‘coached’ witnesses. A prosecutor may
      cross-examine a defendant as to the extent of any ‘coaching’
      during a recess, subject, of course, to the control of the court.
      Skillful cross-examination could develop a record which the
      prosecutor in closing argument might well exploit by raising
      questions as to the defendant’s credibility, if it had developed that
      defense counsel had in fact coached the witness as to how to
      respond on the remaining direct examination and on cross-
      examination.

(Emphasis added.) King at *3-4, quoting Geders v. United States, 425 U.S. 80, 89-

90, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).




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       {¶31} Second, the record does not suggest that Thomas was coached during

the recess. See State v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-Ohio-

1647, ¶ 51-52. On cross examination, the Defense questioned Thomas about the

terms of his plea agreement and his reluctance to testify. Trial Tr. 409-410. In this

process, the Defense questioned Thomas about whether his plea agreement was

discussed during the recess, but the Defense did not ask questions inquiring into

whether Thomas was coached during the recess. Id. For this reason, there is no

evidence in the record that suggests that Thomas was coached during the recess.

While the Defense alleges on appeal that the purpose of the recess was to coach

Thomas, this assertion is speculative as no facts in the record support this claim. On

direct appeal, our review is limited to matters in the record. State v. Martin, 3d Dist.

Putnam No. 12-02-01, 2003-Ohio-735, ¶ 53. We cannot reverse a trial court on the

basis of speculation about matters outside of the record. Id.

       {¶32} Third, we note that the trial court is given “control [of] all proceedings

during a criminal trial * * *.” R.C. 2945.03. The trial judge had the discretion to

order a recess to ensure that the trial unfolded in an orderly process. State v.

Heiberger, 6th Dist. Erie No. E-84-54, 1985 WL 7544, *2 (July 19, 1985). We do

not find evidence in the record that suggests the trial court abused this discretion in

ordering the recess or in denying Randle’s motion for a mistrial. For these reasons,

Randle’s third assignment of error is overruled.

                             Fourth Assignment of Error

                                         -19-
Case Nos 9-17-08 and 9-17-09


       {¶33} In his fourth assignment of error, Randle asserts that the verdict in this

case was against the manifest weight of the evidence. In support of this contention,

he points to the testimony of several of the State’s witnesses. Much of this argument

focuses on Thomas’s credibility as a witness and on one alleged inconsistency in

Bullion’s testimony. Based on these “holes” in the State’s case, he argues that his

conviction was against the manifest weight of the evidence and should, therefore,

be reversed.

                                   Legal Standard

       {¶34} “In a manifest weight analysis, ‘the appellate court sits as a ‘thirteenth

juror’ * * *.’” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 17,

quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       On appeal, courts “must review the entire record, weigh the
       evidence and all of the reasonable inferences, consider the
       credibility of witnesses, and determine whether in resolving
       conflicts in the evidence, the factfinder ‘clearly lost its way and
       created such a manifest miscarriage of justice that the conviction
       must be reversed and a new trial ordered.’”

Brentlinger, supra, at ¶ 36, quoting Thompkins at 387. “A reviewing court must,

however, allow the trier of fact appropriate discretion on matters relating to the

weight of the evidence and the credibility of the witnesses.” State v. Sullivan, 3d

Dist. Hancock No. 5-17-09, 2017-Ohio-8937, ¶ 38, quoting State v. Coleman, 3d

Dist. Allen No. 1-13-53, 2014-Ohio-5320, 2014 WL 6725795, ¶ 7. “Only in

exceptional cases, where the evidence ‘weighs heavily against the conviction,’


                                         -20-
Case Nos 9-17-08 and 9-17-09


should an appellate court overturn the trial court's judgment.” State v. Haller, 2012-

Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶ 119.

                                   Legal Analysis

       {¶35} The State, at trial, introduced a security camera recording that showed

two men robbing Al’s Country Market and kidnapping Bullion. Ex. 1. The State

also called Bullion to testify about the robbery and the kidnapping. Trial Tr. 149-

167. Thomas’s testimony, however, is what identified Randle as one of the two men

who perpetrated the offenses in the store. Id. at 322, 325. Thomas’s testimony also

provided evidence that substantiated each of the essential elements of aggravated

robbery and kidnapping. Id. at 322-323, 327, 349-351. Several other witnesses

were able to connect Randle to Thomas on the day of the incident and were, thus,

able to corroborate aspects of Thomas’s account. Hopkins testified that he saw

Randle and Thomas together before the incident at Al’s Country Market. Id. at 445.

Flores testified that he saw Randle on the day of the incident at the location on

Cherry Street where Thomas was arrested. Id. at 438, 442. Rogers testified that

Randle and Thomas were at her house on the day of the incident, which

corresponded to Thomas’s account of what transpired on July 22, 2016. Id. at 427.

Finally, Romine testified that Randle deposited funds into Thomas’s commissary

account while Thomas was in jail. Id. at 271-272.



                                        -21-
Case Nos 9-17-08 and 9-17-09


       {¶36} The Defense, while cross examining Thomas, introduced the false

statements that Thomas had made to the grand jury. Id. at 398-407. These

statements showed that Thomas’s description of his involvement in this crime at

trial and his description of his involvement in this crime to the grand jury were

inconsistent. Id. Thomas admitted that he had lied to the grand jury and to the

police immediately after his arrest. Id. at 338, 368. Further, Thomas also admitted

that he had a conviction for domestic violence, a conviction for possession of heroin,

and a conviction for obstruction of justice. Id. at 383. Finally, the Defense

questioned Thomas about his reluctance to testify and the terms of his plea

agreement. Id. at 386-394, 409-410. Similarly, the Defense, while cross examining

Bullion, questioned her about whether one of the perpetrators had a foreign accent.

Id. at 180. In response, Bullion explained that she told the police that the man

sounded as though he was trying to disguise his voice with an accent and that he got

easier to understand as he spoke. Id. at 178, 180.

       {¶37} After reviewing all of the evidence in the record, we do not find that

that the verdict was against the manifest weight of the evidence. The jurors, as the

finders of fact in this case, could have reasonably found that Thomas’s testimony

provided an accurate account of Randle’s actions on July 22, 2016. Similarly, the

jurors could have accepted the explanation that Bullion provided for the alleged

contradiction between her statement to the police and her testimony at trial. After



                                        -22-
Case Nos 9-17-08 and 9-17-09


examining the record, we do not find evidence in the record that the jury lost its

way. For these reasons, Randle’s fourth assignment of error is overruled.

                                   Conclusion

       {¶38} This Court has found no error prejudicial to the appellant in the

particulars assigned and argued in appellate case number 9-17-08. In appellate case

9-17-09, Randle was sentenced for violation of the terms of his community control

due to the conviction in appellate case 9-17-08. As his assignments of error in

appellate case 9-17-08 have been overruled, the trial court did not err in revoking

his community control in appellate case number 9-17-09. For these reasons, the

judgments of the Marion County Court of Common Pleas are affirmed.

                                                             Judgments Affirmed

SHAW and PRESTON, J.J., concur.

/hls




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