[Cite as State v. Tackett, 2013-Ohio-4098.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2012-L-130
        - vs -                                    :

JEREMY P. TACKETT,                                :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 12 CR 000311.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).

R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Jeremy P. Tackett, appeals the judgment of conviction entered

by the Lake County Court of Common Pleas, following a jury trial, on one count of

aggravated robbery, one count of kidnapping, and one count of theft of drugs, each with

firearm specifications. Appellant claims the trial court erred when it failed to grant a

motion for a mistrial on the basis of impermissible “other acts” testimony and when it

failed to deliver a cautionary instruction concerning the calling of a witness as a court’s
witness. Appellant further contends the verdict is against the manifest weight of the

evidence. Finally, appellant argues the crimes of aggravated robbery and kidnapping

are allied offenses of similar import which should have merged for the purposes of

sentencing. For the following reasons, the judgment is affirmed.

       {¶2}   Appellant was indicted on one count of aggravated robbery, a first-degree

felony in violation of R.C. 2911.01(A)(1); one count of kidnapping, a first-degree felony

in violation of R.C. 2905.01(A)(2); and one count of theft of drugs, a fourth-degree

felony in violation of R.C. 2913.02(A)(4). Each count contained a firearm specification

pursuant to R.C. 2941.145. The matter proceeded to a jury trial where the following

facts were adduced through testimony.

       {¶3}   Appellant, a tattoo artist, agreed to give the victim a tattoo. The victim,

who lived with his aunt, arranged for appellant to come to his aunt’s private residence to

work on the tattoo. The victim did not have any money for the tattoo, but informed

appellant he was anticipating cash gifts for his upcoming birthday. The pair agreed that

the victim would subsequently tender payment once he received the cash gifts.

       {¶4}   Thus, on April 18, 2012, appellant and his girlfriend, Angela Prince, went

to the residence to initiate the transaction, arriving in Ms. Prince’s automobile, a Pontiac

G5 sedan. Upon arrival, appellant explained he did not have his equipment, and the

tattoo would need to be given at another location. The victim was reluctant to leave his

home as he was confined to a wheelchair, having previously broken both his legs and

ankles after unsuccessfully attempting a back flip on St. Patrick’s Day. Nonetheless,

the victim acquiesced and was lifted into the driver-side backseat of Ms. Prince’s sedan.

Appellant explained that the automobile did not have enough room for the wheelchair;




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thus, the wheelchair was not brought into the car, leaving the victim completely

incapacitated.

       {¶5}   Testimony differs at this point. The victim testified that, as the trio started

en route to appellant’s residence, appellant initiated a conversation concerning the

victim’s injuries and whether he had been taking any pain medication.            The victim

confirmed that he had just been to the pharmacy earlier in the day to refill his

prescription and had about 80 pain pills on his person. The victim’s prescription and his

receipt, dated April 18, 2012, were admitted into evidence. The victim testified that he

kept these pills in his backpack or on his person on a consistent basis because he did

not trust leaving them out at his aunt’s house. Appellant asked to examine the pills, and

the victim complied. Appellant suggested that the victim immediately tender payment

for the tattoo with some of the pain pills. The victim explained this method of payment

was unacceptable because he needed the pills for the immense pain in his legs.

       {¶6}   According to the victim, appellant directed Ms. Prince to turn around and

pull over into a nearby abandoned gravel lot. Ms. Prince obeyed, pulled into the lot, and

turned off the vehicle according to appellant’s instruction.      The victim testified that

appellant turned around, brandished a firearm, and demanded his cellular phone. After

appellant assured the victim that it was not a prank, the victim complied with the

demand and turned over his phone. The victim testified that appellant then dragged him

from the back of the automobile to the middle of the gravel lot and then left with his pills

and cell phone.     The victim testified he painfully trudged to a nearby roadway,

eventually flagging down two cyclists who dialed 9-1-1. The 9-1-1 tape was played for

the jury and admitted into evidence. On the tape, the victim detailed the above-framed

narrative and informed the operator that appellant was the perpetrator.


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       {¶7}   Appellant took the stand to offer a different version of events. According

to appellant, the victim revealed himself to be a drug dealer who was attempting to sell

pain pills and, at some point, brandished a box cutter while in the automobile. Appellant

explained he was so upset with the victim’s audacious behavior that he ejected him

from the automobile. Appellant’s girlfriend, Ms. Prince, testified in a similar fashion,

though was impeached by her prior statements to police and her prior grand jury

testimony.

       {¶8}   The jury returned a guilty verdict on all counts. The trial court merged the

aggravated robbery and theft of drugs convictions, and sentenced appellant to an

aggregate of 10 years in prison: four years for aggravated robbery and four years for

kidnapping, to be served concurrently, plus two consecutive three-year terms for the

respective gun charges.

       {¶9}   Appellant appeals and raises four assignments of error for review by this

court. Appellant’s first assignment of error states:

              The trial court erred to the prejudice of the Defendant-Appellant
              when it failed to give an instruction to the jury after calling one of
              the state’s witnesses as a court’s witness, in violation of the
              Defendant-Appellant’s due process rights and rights to fair trial as
              guaranteed by the Sixth and Fourteenth Amendments to the United
              States Constitution and Sections 5 and 10, Article I of the Ohio
              Constitution.

       {¶10} In his first assignment of error, appellant argues the trial court erred in

failing to issue a cautionary instruction to the jury regarding its calling of a state’s

witness, Ms. Prince, as a court’s witness. The state noted on the record it anticipated

Ms. Prince to be a hostile witness, given that she was uncooperative with trial

preparation efforts and had continued a relationship with appellant.          After some

discussion, and with the state’s suggestion and defense’s consent, the trial court


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determined it would call the witness as a court’s witness. Appellant speculates the jury

may have been inclined to believe the trial court was vouching for the witness because

it was the trial court who called the witness. Appellant contends the trial court needed

to provide guidance by instructing that the testimony of the court’s witness should not be

given more credibility than the testimony from others.

       {¶11} At the outset, we note appellant did not object to Ms. Prince being called

as a court’s witness but, as noted above, consented to it. Moreover, appellant failed to

request any cautionary instruction or object to the omission of such an instruction.

Accordingly, he has waived all but plain error on appeal.         Crim.R. 52(B) provides:

“[p]lain errors or defects affecting substantial rights may be noticed although they were

not brought to the attention of the court.” “Plain error is present only if the error is

obvious and, but for the error, the outcome of the trial clearly would have been

different.” State v. Turner, 11th Dist. Ashtabula No. 2010-A-0060, 2011-Ohio-5098,

¶34, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶108. This court

will recognize plain error, “‘with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.’” State v. Landrum, 53 Ohio St.3d

107, 111 (1990), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the

syllabus.

       {¶12} Here, appellant has not demonstrated plain error. First, though called as a

court’s witness, the trial court did not question Ms. Prince. Rather, the two parties

examined the witness pursuant to Evid.R. 614(A). In calling the witness, the trial court

simply stated, “[a]t this time Miss Angela Prince is going to be called as a witness in this

matter.” Thus, appellant’s speculation that the jury may have believed the trial court

was somehow vouching for the witness is unfounded. Further, it is not possible to


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determine that the failure to request an instruction was error at all; rather, it could have

been trial strategy. Indeed, Ms. Prince’s testimony at trial was favorable to appellant

and is even used later in his merit brief to support his manifest weight argument.

Though Ms. Prince’s trial testimony was impeached by her prior statements to police

and prior grand jury testimony, the jury could have still believed her recent recounting of

events, thereby working to appellant’s benefit.

       {¶13} Appellant’s first assignment of error is without merit.

       {¶14} Appellant’s second assignment of error states:

              The trial court erred to the prejudice of the Defendant-Appellant by
              overruling his motion for mistrial when a witness testified that he
              previously had been incarcerated, in violation of the Defendant-
              Appellant’s due process rights and rights to fair trial as guaranteed
              by the Sixth and Fourteenth Amendments to the United States
              Constitution and Sections 5 and 10, Article I of the Ohio
              Constitution.

       {¶15} During the state’s examination, Ms. Prince briefly mentioned—without

solicitation—that appellant was incarcerated. Appellant then moved for a mistrial, which

was denied. Appellant argues the trial court abused its discretion by overruling his

motion for a mistrial.      Specifically, appellant contends Ms. Prince’s mention of

appellant’s incarceration is inadmissible testimony of “other acts” under Evid.R. 404(B);

i.e., the jury was permitted to infer appellant must have committed wrongful acts in the

past that led to his incarceration.

       {¶16} “‘The trial judge is in the best position to determine whether the situation in

[the] courtroom warrants the declaration of a mistrial.’” State v. Ahmed, 103 Ohio St.3d

27, 2004-Ohio-4190, ¶92, quoting State v. Glover, 35 Ohio St.3d 18, 19 (1988).

Accordingly, a trial court’s decision on whether to grant or deny a motion for a mistrial

lies within its discretion. See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶192.


                                             6
A reviewing court will not second-guess a trial court’s decision unless there is an abuse

of discretion. Ahmed at ¶92. An abuse of discretion is the trial court’s “‘failure to

exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist.

Clark No. 09-CA-54, 2010-Ohio-1900, ¶61-62, quoting Black’s Law Dictionary 11 (8th

Ed.2004). The Supreme Court of Ohio has cautioned that “[m]istrials are necessary

‘only when the ends of justice so require and a fair trial is no longer possible.’” State v.

Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, ¶105, quoting State v. Garner, 74 Ohio

St.3d 49, 59 (1995).

       {¶17} As a preliminary matter, we note that evidence of appellant’s other crimes

ultimately came out when he took the stand in his own defense. In fact, during direct

examination, he explained he was in jail prior to this incident. In any respect, Ms.

Prince’s statement was not permitted by the trial court and was stricken from the record.

The trial court immediately instructed the jury to disregard this portion of Ms. Prince’s

testimony, explaining, “[y]ou are not to consider her response for any reason.” Thus,

the statement regarding appellant’s prior incarceration was not before the jury for its

consideration.

       {¶18} Appellant acknowledges the trial court gave a cautionary instruction, but

argues the instruction was insufficient to remedy the error. However, a trial court’s

action of instructing a jury to disregard a comment is sufficient to render a purported

error harmless because a jury is presumed to follow the instructions of the court. See

State v. Griesmar, 11th Dist. Lake No. 2009-L-061, 2010-Ohio-824, ¶31-32, and State

v. Adams, 11th Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-1603, ¶58. As held in

Adams, supra, which similarly addressed a purported Evid.R. 404(B) violation under a




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mistrial claim, “[t]here is nothing in the record to indicate that the trial court’s instruction

was not followed in this matter.” Id.

          {¶19} Appellant’s second assignment of error is without merit.

          {¶20} Appellant’s third assignment of error states:

          {¶21} “The trial court erred to the prejudice of the Defendant-Appellant when it

returned a verdict of guilty against the manifest weight of the evidence.”

          {¶22} To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact “lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio

St.3d 380, 387 (1997).        In weighing the evidence submitted at a criminal trial, an

appellate court must defer to the factual findings of the trier of fact regarding the weight

to be given the evidence and credibility of the witnesses. State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus. Further, no conviction resulting from a

trial by jury shall be reversed on the weight of the evidence except by the concurrence

of all three judges hearing the appeal. Thompkins at 386.

          {¶23} Here, we cannot conclude the jury lost its way in returning a verdict of

guilty.     The victim’s version of events—which supports a conviction under each

charge—was corroborated by the 9-1-1 recording, where he excitedly recounted the

events that had just transpired, explaining that appellant pointed a gun (either a .25 or

.38 caliber) right in his face.      Conversely, Ms. Prince, who testified favorably to

appellant, was impeached by her prior inconsistent statements to the police and her

prior inconsistent grand jury testimony. In fact, Ms. Prince ultimately presented three


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versions of the same event since the investigation commenced. Appellant’s credibility

was also affected by the admission of jail-call recordings, authenticated by Detective

Brian Butler, between himself and Ms. Prince. The recordings detail the duo attempting

to “get the story straight,” with appellant explaining that he has “a pretty rock solid story

put together now.”

       {¶24} Despite this evidence, appellant nonetheless exhausts the remainder of

his argument contending that his version of events was “more rational” than the victim’s

account, detailing the numerous ways in which the victim’s testimony contradicts

appellant’s testimony. This court, in State v. Williams, 11th Dist. Lake No. 2012-L-078,

2013-Ohio-2040, recently addressed an identical contention.          There, the defendant

highlighted inconsistent testimony in the record, arguing his version of events was more

credible than another witness’s account, just as in the case sub judice. We noted that

the jury, as the trier of fact, is entitled to believe all, part, or none of a witness’s

testimony. Id. at ¶21. Moreover, “[t]he trier of fact is in the best position to evaluate

inconsistencies in testimony by observing the witness’s manner and demeanor on the

witness stand—attributes impossible to glean through a printed record.” Id.; see also

State v. Barnes, 11th Dist. Portage No. 2012-P-0133, 2013-Ohio-2836, ¶49 (“we must

defer to the weight and credibility the jury gave to the evidence in this case”).

       {¶25} Appellant’s third assignment of error is without merit.

       {¶26} Appellant’s fourth and final assignment of error states:

              The trial court erred to the prejudice of the Defendant-Appellant
              when it failed to merge his convictions [for] aggravated robbery
              and kidnapping, in violation of his rights against double jeopardy
              under the Fifth and Fourteenth Amendment[s] to the United States
              Constitution and Article I, Section 10 of the Ohio Constitution.




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       {¶27} In his fourth assignment of error, appellant alleges the offenses of

aggravated robbery and kidnapping were allied and should have merged for the

purpose of sentencing.

       {¶28} R.C. 2941.25(A) codifies the doctrine of merger, explaining that, “[w]here

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.”

       {¶29} R.C. 2941.25(B) provides the converse:

              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.

       {¶30} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio

Supreme Court set forth the current standard for determining whether merger is

apposite, holding that, “[w]hen determining whether two offenses are allied offenses of

similar import subject to merger under R.C. 2941.25, the conduct of the accused must

be considered.” Id. at syllabus. In making such a determination, a court must consider

whether it is possible to commit the offenses by the same conduct and, if so, whether

the offenses were, in fact, committed by the same conduct: i.e., “‘a single act committed

with a single state of mind.’” Id. at ¶49, quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, ¶50 (Lanzinger, J., concurring in judgment only). If both questions are

answered affirmatively, then merger is appropriate. The results of the analysis will vary

by case, as the examination of the defendant’s conduct is necessarily non-formulaic and

inherently subjective. Id. at ¶52.



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       {¶31} “An appellate court should apply a de novo standard of review in reviewing

a trial court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, ¶28.

       {¶32} The offenses of aggravated robbery and kidnapping are not allied offenses

of similar import in this case. The conviction for aggravated robbery was premised upon

appellant taking the victim’s pain medication, brandishing a firearm, and demanding the

victim’s cell phone at gunpoint while inside a car. The conviction for kidnapping was

premised upon appellant putting the victim in the car, effectively trapping him there,

driving him to a remote area, then forcing the victim out of the vehicle and leaving him

incapacitated in a gravel pit. The victim had to painfully crawl to the roadway and yell for

help. The act of taking the medication and demanding the cell phone from the victim at

gun point and the acts related to the kidnapping charge are two separate and distinct

acts that were not committed with a single state of mind. We therefore cannot conclude

the trial court erred in its sentencing.

       {¶33} Appellant’s fourth assignment of error is without merit.

       {¶34} The judgment of the Lake County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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