[Cite as State v. Watts, 2020-Ohio-3282.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                            No. 108707
                 v.                               :

GREGORY WATTS,                                    :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 11, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-627798-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
                 Attorney, for appellee.

                 Christopher M. Kelley, for appellant.


MARY J. BOYLE, P.J.:

                   Defendant-appellant, Gregory Watts, appeals his convictions and

sentence. He raises four assignments of error for our review:
      1. Appellant’s convictions are against the manifest weight of the
      evidence.

      2. Appellant’s convictions are not supported by sufficient evidence.

      3. The trial court erred in failing to merge appellant’s kidnapping and
      aggravated murder convictions as allied offenses of similar import.

      4. Appellant was denied the effective assistance of counsel when trial
      counsel stipulated that appellant’s kidnapping and aggravated murder
      convictions were not allied offenses of similar import.

               Finding no merit to his appeal, we affirm.

I. Procedural History and Factual Background

               In April 2018, Watts was indicted on six counts: Count 1, aggravated

murder in violation of R.C. 2903.01(B); Count 2, aggravated murder in violation of

R.C. 2903.01(A); Count 3, aggravated burglary in violation of R.C. 2911.11(A)(1);

Count 4, kidnapping in violation of R.C. 2905.01(A)(3); Count 5, murder in violation

of R.C. 2903.02(B); and Count 6, felonious assault in violation of R.C. 2903.11(A)(1).

Watts waived his right to a jury trial, and the case proceeded to the bench. The state

informed the trial court that it was proceeding on alternate theories that Watts was

complicit in the crimes or was the principal offender. The state presented the

following evidence to the trial court.

               In the early morning hours of March 6, 2018, the victim in this case

was beaten to death in the home of Steven Dabrowski. The victim had been living

with Dabrowski for approximately one year before her death. Dabrowski discovered

the victim’s body in his laundry room when he arrived home from work around 1:45

p.m. that day. The medical examiner said that the victim had been dead for several
hours when she was found. The victim had been beaten so badly that her facial

bones had separated from her skull bones. She also had injuries all over her body,

including defensive injuries to the back of her left hand and wrist. The medical

examiner testified that the victim had several drugs in her system when she was

killed, including enough fentanyl in her blood that it could have killed her, but he

said that was not the cause of her death. The medical examiner ruled her death to

be a homicide as a result of blunt force trauma to her neck and head.

              Dabrowski stated that when he left for work around 4:30 a.m., he

thought he saw the victim sleeping under some blankets on the couch. But he

admitted that he only saw the blankets and did not actually see the victim.

Dabrowski worked at the post office in downtown Cleveland and normally left for

work around that time. When he got home from work, the door to his house was

locked. The victim had a key to his house, so he did not think anything of the door

being locked. He said that there were no signs of forced entry into his home.

Dabrowski discovered that his 32-inch television and two cameras were missing.

The victim’s key to Dabrowski’s house was never found.

              Police obtained surveillance footage from a nearby business for the

hours of 4:00 a.m. to 2:00 p.m. on March 6, which showed Dabrowski’s vehicle

leaving his home at the time he said he did and returning at the time he said he

returned. Dabrowski called 911 soon after arriving home. Police also swabbed and

photographed Dabrowski’s hands, which had no injuries on them. They also towed
his vehicle and processed it for evidence, eventually eliminating Dabrowski as a

suspect.

              The surveillance footage further showed that approximately two

minutes after Dabrowski left for work, at 4:35 a.m. on March 6, another vehicle

pulled into his driveway. The footage shows that vehicle leaving Dabrowski’s house

at 5:48 a.m. Police were never able to determine what kind of vehicle pulled into

Dabrowski’s house at 4:35 a.m., although they attempted to do so. All they could

determine was that it was a “boxy” vehicle. Based upon the surveillance footage and

the medical examiner’s conclusion that the victim had been dead for at least several

hours, police surmised that the victim was killed between 4:35 a.m. and 5:48 a.m.

              Detective Raymond Diaz, the lead detective assigned to the case,

testified that he and his partner, Detective Jody Remington, arrived at the scene

around 2:30 p.m. on March 6. Police officers from the crime scene investigation

unit took photos of the crime scene and gathered evidence.

              Detective Diaz and Detective Remington investigated other suspects

after they eliminated Dabrowski, including the victim’s boyfriend, Thomas

Maczadlo. Police also investigated Ricardo Dean (also known as “JR”) and his

associate, Donnell Palmore.     Detective Diaz testified that police received an

anonymous call from a woman who told them that Dean punched her and

threatened her that if he caught her buying drugs from someone else, he would “kill

her like [the victim].” Dean also drove “an older-style white mini-van,” which was

similar to the “boxy” vehicle they saw on the surveillance footage. Despite this tip
and the “older-style white mini-van,” Detective Diaz said that they eliminated Dean

because his DNA was not found at the scene and they could not find any connections

relating Dean to the victim. Police also ruled out Palmore as a suspect.

               Detective Diaz explained that two days after the victim was murdered,

he received another anonymous tip. The tipster turned out to be Terry Harrah. As

a result of the tip, Detective Diaz spoke with Terry Harrah and Michella Belle.

               Belle testified that she had known Watts since 2010. Around the time

of the victim’s murder, Belle said that Watts was living with her part-time. She said

that when he was not at her house, he stayed at empty houses that he was painting.

Belle testified that Watts was “the best friend [she] ever had” in her “whole 59 years.”

Belle stated that Watts was a “wonderful person, * * * kind and lovable,” whether he

was “high or sober.” Belle loved Watts and she “never” wanted to “see anything bad

happen to him.”

               Belle testified that Watts was at her house and trying to leave so that

he “could get high.” Although Belle did not state when this happened, other evidence

established that it was the evening of March 6, 2018. Belle testified that she was

“trying to block him and hold him in the house.” She said that Watts told her that

he “killed a girl.” She said that although she did not know that a woman had been

murdered, it had been on the news and “most people knew about it.” She said Watts

“just threw that up in the air” to get out of her house. After he told her that he “killed

a girl,” he left. After he left, she saw on the news that a woman had been murdered.
               Belle stated that she did not believe Watts when he said that he killed

someone. She said that he would not do something like that.

               After Watts left her house, Belle called Terry Harrah, who was one of

Watts’s bosses. She said that Watts is a painter and works “with a lot of different

people painting houses.” Belle testified that she called Harrah because he was

worried that he had not seen Watts for a couple of days. Belle explained that it was

normal for Watts to disappear for several days. Belle stated that she also called

Harrah because she knew that Harrah and Watts were close; Watts always told Belle

that Harrah was “like family to him.” Belle testified that she felt bad that she told

Harrah what Watts told her because if she had not done so, then she would not have

to testify “against [her] great friend.”

               Belle testified that a few days later, Watts came back to her house and

told her that he did not kill anyone. Belle said that Watts told her that he was just

trying to get out of her “house to get high.” Belle stated that she did not call police

because she did not believe that Watts murdered anyone, and Watts “cleared it up

and said he didn’t do it.”

               Belle testified that about a week after Watts told her that he “killed a

girl,” he went into “rehab.”

               Belle stated that she had talked to Watts since he had been in jail. She

agreed that Watts told her that she did not have to go to court to testify against him,

but Belle said that Watts only told her that because he was worried about her health

because she is “a very sick person.”
               Belle did not know the victim or Demetrius Smith (whose DNA was

found on the victim’s left hand).

               Belle testified that when police interviewed her, she told them that

she did not want to be involved in the case. She stated that she told police that

because she did not know what happened and she did not “want to be a part of

hurting [her] good friend, Gregory Watts.” She “prayed to god” that her testimony

did not hurt Watts.

               Harrah testified that he has been a painting contractor since 1985. At

the time of trial, he was working a job in Philadelphia, Pennsylvania. He drove to

Ohio to testify in Watts’s trial. When he was done testifying, he was going to drive

back to Philadelphia to complete his job.

               Harrah stated that he had known Watts since the 1980s, soon after

Harrah started working. Harrah said that he considered Watts to be “his best

friend.” Harrah stated that Watts was an “excellent” worker. When he needed Watts

for a job, Harrah would “track him down in the neighborhood.” Harrah said that

Watts was not technically his employee, but Harrah would pay him to do a job.

Harrah rated Watts a “15” as a worker on a scale of one to ten. Harrah “was not very

happy” about testifying in Watts’s trial.

               Harrah testified that Watts had a “crack cocaine” problem. Watts had

admitted it to him.

               Harrah said that he lived in Florida. Over the years, he and Watts had

“dinner a couple of times down in Florida,” but Harrah said that he does not
normally “fraternize like that.” Harrah explained that he had helped Watts in the

past when he got in trouble, including paying Watts’s bond to get out of jail, giving

him money when he needed it, and finding more work for him.

              Harrah testified that in early March 2018, he was working on a project

in Willoughby and Mentor. Harrah said that Watts worked with him on both

projects. He said that although Watts was “a solid man,” Watts had not been himself

during the two weeks before the murder. Harrah could tell that Watts’s “crack

usage” was up, and although Watts was still performing on the job, he appeared to

be “very tired” and not thinking properly. Harrah said that Watts had “a lot of slip-

ups” during that time.

              Harrah knew that Watts was “staying” with Belle. Harrah was not

friends with Belle, but she was an acquaintance of his. Harrah said that Watts gave

Belle’s phone number to Harrah so that Harrah could get in touch with Watts “when

[Watts’s] phone would disappear.”

              Harrah said that he bought Watts’s cell phone for him. Harrah stated

that Watts’s phone would disappear sometimes. Harrah figured that when Watts

purchased crack cocaine, he would give the dealer his phone to get more drugs.

Harrah explained that he had purchased five phones for Watts in the previous six to

eight months, all under Watts’s name, and they all disappeared.

              Harrah testified that he had not be able to find Watts around the time

of the murder. He called Watts’s phone at least 3o times and did not receive an

answer. Harrah then called Belle to ask her if she had seen him. Three days later,
Belle called Harrah. Harrah said that she was very upset. She told him what Watts

had said to her and gave her the victim’s name. He did not think anything of it until,

as Belle told him the victim’s name, his significant other saw on Facebook that the

victim had been murdered.

              The next day, on March 7, 2018, Harrah said that he picked Watts up

at a house on “Maurice off of East 55th.” He had picked Watts up from this house

in the past. At some point that day, he spoke with Watts about the murder. Harrah

was “mortified.” Harrah told Watts to “level with [him]” and asked him, “What the

hell is going on here?” Harrah testified that Watts told him, “We fucked the bitch

up.” Harrah asked him why. Harrah said that Watts replied, “Took my phone and

my money, and it’s happened on more than one occasion.” Harrah said that he could

tell by Watts’s “body language, his attitude, and everything else” that “something

was wrong.” He then continued to work with Watts and talk to him about what had

happened. Harrah said that based on Watts’s answers, he knew that Watts had

killed the woman. Harrah eventually told Watts that they were “done” and that he

never wanted to see him again. Harrah stated that it was “very difficult” to say that

to Watts because he cared about him.

              Harrah testified that he knew that he had to call the police. He said

that he told Detective Diaz everything that he knew.

              On cross-examination, Harrah agreed that if Detective Diaz’s

summary report of his interview with Harrah stated that Harrah told him, “The bitch

did me wrong,” and not, “We fucked the bitch up,” that the report was probably
correct. Harrah testified, “To me, they both sound the same.” Harrah agreed that

Watts admitted to killing the victim on March 7, 2018, but that the next day, on

March 8, Watts denied being involved in the homicide.

              After speaking with both Harrah and Belle, Detective Diaz obtained

an arrest warrant for Watts. Detectives Diaz and Remington interviewed Watts.

Watts denied that he killed the victim but admitted that he did drugs with her. He

told police that the last time he saw the victim was two days before she got murdered.

Watts also told police that his cell phone was stolen before the murder. Watts stated

that the last time he saw his phone was the last time he saw the victim, two days

before her death. Watts told the detectives that he had been at a house on Maurice

Avenue for several days around the time of the murder.

              In September 2018, Detective Diaz testified that they received a

CODIS hit on the DNA swab taken from the back of the victim’s left hand. It

matched that of Demetrius Smith. Smith had gotten out of jail in March 2017 and

was arrested on March 8, 2018, in another case. Detective Diaz interviewed Smith

on September 19, 2018, the day that Smith was sentenced to nine years in prison for

aggravated robbery in another case. Smith denied knowing the victim but admitted

that he knew Watts from the neighborhood. Smith gave Detective Diaz several

phone numbers, including his, his mother’s, and his girlfriend’s. Detective Diaz

stated that they were still investigating Smith regarding his involvement in the

victim’s murder.
              Detective Diaz testified that police never found the victim’s or Watts’s

cell phones. Despite that, Detective Diaz obtained cell phone records for Smith, the

victim, and Watts. At first, he focused on the time just before and after the murder.

He later retrieved cell-tower records for Smith and Watts and cell phone records for

Watts from December 2017 to June 2018.

              From these records, Detective Diaz found another phone number that

Smith’s, Watts’s, and the victim’s cell phones communicated with frequently.

Detective Diaz stated that he tried everything he could to determine who that

number belonged to, but he was never able to do so. He stated that he believed it

was a “burner” phone that drug dealers use so that police cannot trace who owns the

phone. He learned that the burner phone made frequent calls to Smith’s mother’s

cell phone and the cell phone belonging to Smith’s girlfriend, who was also the

mother of his child. Detective Diaz stated that the burner phone probably belonged

to Smith or someone close to him.

              Detective Diaz testified that there was no activity for Watts’s, Smith’s,

or the victim’s cell phones between 4:35 and 5:48 a.m. on March 6, 2018. The last

call that the victim’s phone made was at 4:08 a.m. on March 6, 2018, to Watt’s

phone. The call lasted 263 seconds. Detective Diaz testified that in the 10 days

before the murder, the burner phone communicated with Watts 18 times and the

victim 19 times.     In the hours before the murder, the burner phone also

communicated with Watts’s and the victim’s phones.
              Detective Diaz explained that the cell phone records also show that

on March 5 and March 6, 2018, Harrah tried to call Watts. On March 6, 2018, Belle

tried to call Watts at 6:54 a.m. and Harrah tried to call him at 7:14 a.m. Detective

Diaz stated that the cell phone records show that Belle and Harrah continued to call

Watts most of the day on March 6, 2018.

              Detective Diaz testified that someone continued to use the victim’s

phone after her death; it called the burner phone at 3:38 and 4:34 p.m. on March 6

and another number that he did not know at 4:08 p.m. that day (“the 338 number”).

Detective Diaz learned that a person in jail, Erin Finkl, called the 338 number on

March 6, 2018. Detective Diaz obtained the visitor log for Erin Finkl and learned

that someone named Frank Webb visited Erin Finkl in jail and used the 338 number

as his number on the visitor log. Webb also gave his address as a home on Maurice

Avenue, the same address where Watts told Detective Diaz he had been staying

around the time of the murder. During the March 6, 2018 phone call from Finkl to

Webb, Finkl asked Webb what was going on at the house, and Webb replied that

“Greg was there.” Detective Diaz was never able to interview Finkl or Webb because

they both died of drug overdoses before he was able to talk to them.

              Detective Diaz testified that between December 2017 and May 2018,

Watts’s phone contacted the 338 number at least eight times, Smith’s number 11

times, and the burner phone 19 times.

              Detective Diaz also obtained the cell-tower records for the victim’s,

Smith’s, and Watts’s cell phones. They showed that they were bouncing off of the
same cell phone tower a day before the murder and that tower was 0.7 miles from

the address on Maurice Avenue.

               The state rested. Watts moved for a Crim.R. 29 acquittal, which the

trial court denied. Watts did not present any evidence on his behalf. Watts again

moved for a Crim.R. 29 acquittal. The trial court stated that it was having trouble

with “prior calculation and design” in Count 2 and that it would reserve judgment

on that issue until after closing arguments.

               The trial court found Watts guilty of Counts 1 (aggravated murder), 3

(aggravated burglary), 4 (kidnapping), 5 (felony murder), and 6 (felonious assault).

The trial court also found Watts guilty of the lesser-included offense of murder

under Count 2 in violation of R.C. 2903.02(A).

               The trial court found that Count 2 merged into Count 1, Count 6

merged with Count 5, and Count 5 merged with Count 1. The state elected for the

court to sentence Watts on Count 1. The trial court found that Counts 3 and 4 did

not merge. The trial court sentenced Watts to life in prison with parole eligibility

after 25 full years of prison for Count 1, 10 years for Count 3, and 10 years for Count

4. The trial court ordered that the sentences for Counts 1, 3, and 4 be served

concurrently. The trial court also imposed a mandatory five years of postrelease

control for Count 3 and a mandatory five years of postrelease control for Count 4. It

is from this judgment that Watts now appeals.
II. Sufficiency and Manifest Weight of the Evidence

               In his first and second assignments of error, Watts argues that his

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence. Watts does not contend that the state failed to establish the

elements of each offense beyond a reasonable doubt. Rather, in both assignments

of error, Watts focuses his arguments on the state’s theory of complicity to commit

the crimes. Thus, we will limit our discussion to that of complicity.

               “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins,

78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. As a

matter of appellate review, they involve different means and ends. Id. at 386-389.

They also invoke different inquiries with different standards of review. Id.; State v.

Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). The difference, in the simplest

sense, is that sufficiency tests the burden of production while manifest weight tests

the burden of persuasion. Thompkins at 390 (Cook, J., concurring).

               “‘[S]ufficiency’ is a term of art meaning that legal standard which is

applied to determine whether the case may go to the jury or whether the evidence is

legally sufficient to support the jury verdict as a matter of law.” Id. at 386, quoting

Black’s Law Dictionary 1433 (6th Ed.1990). When an appellate court reviews a

record upon a sufficiency challenge, “the 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.

                Unlike sufficiency of the evidence, a challenge to the manifest weight

of the evidence attacks the credibility of the evidence presented. Thompkins at 387.

Because it is a broader review, a reviewing court may determine that a judgment of

a trial court is sustained by sufficient evidence, but nevertheless conclude that the

judgment is against the weight of the evidence. Id., citing State v. Robinson, 162

Ohio St. 486, 487, 124 N.E.2d 148 (1955).

                In determining whether a conviction is against the manifest weight of

the evidence, the court of appeals functions as a “thirteenth juror.” Id. In doing so,

it must review the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of witnesses and determine “‘whether in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.’” Id., quoting

State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Reversing a

conviction as being against the manifest weight of the evidence and ordering a new

trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

                R.C. 2923.02 sets forth the statute for complicity. It provides:

      (A) No person, acting with the kind of culpability required for the
      commission of an offense, shall do any of the following:

      (1) Solicit or procure another to commit the offense;

      (2) Aid or abet another in committing the offense;
      (3) Conspire with another to commit the offense in violation of section
      2923.01 of the Revised Code;

      (4) Cause an innocent or irresponsible person to commit the offense.

      (B) It is no defense to a charge under this section that no person with
      whom the accused was in complicity has been convicted as a principal
      offender.

              The state presented the theory that Watts aided and abetted the

principal offender. To prove complicity by aiding and abetting, the state had to

prove beyond a reasonable doubt “that the defendant supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of

the crime, and that the defendant shared the criminal intent of the principal. Such

intent may be inferred from the circumstances surrounding the crime.” State v.

Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. The criminal intent

of the aider and abettor “can be inferred from the presence, companionship, and

conduct of the defendant before and after the offense is committed.” In re T.K., 109

Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, ¶ 13, citing Johnson.

              Watts maintains that the state failed to prove that he had the same

criminal intent as the principal offender or that he intended to help the principal

offender. Watts asserts that the evidence established that it was Smith who beat the

victim and that his DNA was not found anywhere in Dabrowski’s home, despite the

fact that blood was spattered everywhere.

              As with proof of any element of an offense, complicity may be proved

by circumstantial evidence, which has the same probative value as direct evidence.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the syllabus. Here,
the state presented evidence that Watts admitted to his friend on the day of the

murder that “he killed a girl,” and the following day, he admitted the same thing to

his boss. When Belle called Harrah to tell him what Watts told her, she gave the

name of the victim to Harrah. At the same time that Belle was telling him the

victim’s name, Harrah’s significant other also saw on Facebook that the victim had

been murdered and told Harrah about it.

               Watts contends that his remark to Belle was “flippant,” and that he

only said it to her to get her out of his way so that he could leave her house and get

high. But it was clear from the transcript that Belle took Watts’s remark very

seriously and that she was not happy about testifying against Watts because she did

not want him to go to prison. It was also evident from the transcript that after

Harrah initially confronted Watts and Watts admitted that “we f*cked the bitch up”

or “the bitch did me wrong,” that Harrah continued to discuss the matter with Watts

throughout the day. Although Harrah could not testify as to what Watts said to him

about the murder, Harrah was positive after talking to Watts that Watts took part in

killing the victim. Harrah also had a hard time testifying against Watts because he

still cared about him.

               Watts further contends that the state focused on “trying to

manufacture some kind of link between Smith and [Watts],” and “failed to fully

investigate obvious suspects.” Watts points to the fact that an anonymous caller

reported that Dean told her that if she purchased drugs from someone else, “he

would kill her like he did [the victim.]” What the caller said that Dean said, however,
was, “I’ll kill you like [the victim],” not that he actually killed the victim.

Nonetheless, police investigated Dean. They obtained Dean’s DNA, which did not

match any of the samples collected from the crime scene. Further, Detective Diaz

explained that police could not connect Dean to the murder through any of the other

evidence. Therefore, Dean was excluded as a possible suspect.

               Watts further argues that the state’s case relies predominantly on

“metadata” obtained from cellular companies that merely suggested that Smith,

Watts, and the victim “were in contact with each other,” which he maintains was not

surprising because they all used drugs. We would agree with Watts if the state had

only presented the cell phone records, but the state also presented Belle and Harrah,

who testified that Watts told them that he participated in the murder. Moreover,

the cell phone records do not just show that Smith, Watts, and the victim were in

contact with each other. They also show that the victim was in close contact with

Smith and Watts in the days and hours preceding her murder.

               Thus, although the state did not present direct evidence that Watts

aided and abetted Smith, it presented sufficient circumstantial evidence that he did.

We further find, after reviewing the record and weighing the evidence and all

reasonable inferences, considering the credibility of witnesses and determining

whether the factfinder clearly lost its way in determining that Watts was guilty of

aiding and abetting, we find that it did not.

               Accordingly, Watts’s first and second assignments of error are

overruled.
III. Allied Offenses of Similar Import

              In his third assignment of error, Watts argues that the trial court

erred when it did not merge his kidnapping and aggravated murder convictions. In

his fourth assignment of error, he argues that his counsel was ineffective for

stipulating that the offenses were not allied offenses. Watts contends that because

his trial counsel stipulated that the kidnapping and aggravated murder offenses

were not allied offenses, the trial court committed plain error.

              Pursuant to R.C. 2941.25(A), “[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.” However,

      [w]here 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(B).

              “At its heart, the allied-offense analysis is dependent upon the facts of

a case because R.C. 2941.25 focuses on the defendant’s conduct.” State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 26. In Ruff, the Supreme Court

held that if a defendant’s conduct supports multiple offenses, the defendant can be

convicted of all of the offenses if any one of the following is true: (1) the conduct

constitutes offenses of dissimilar import or significance, (2) the conduct shows the
offenses were committed separately, or (3) the conduct shows the offenses were

committed with separate animus or motivation. Id., at paragraph three of the

syllabus, citing R.C. 2941.25(B).

               Two or more offenses are of dissimilar import within the meaning of

R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving

separate victims or if the harm that results from each offense is separate and

identifiable.” Ruff at paragraph two of the syllabus.

               When determining whether two offenses are allied offenses of similar

import, we apply a de novo standard of review. State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

               Aggravated murder under R.C. 2903.01(B) provides:

       No person shall purposely cause the death of another * * * while
      committing or attempting to commit, or while fleeing immediately
      after committing or attempting to commit kidnapping, rape,
      aggravated arson, arson, aggravated robbery, robbery, aggravated
      burglary, burglary, trespass in a habitation when a person is present or
      likely to be present, terrorism, or escape.

               Watts was convicted of kidnapping under R.C. 2905.01(A)(3), which

states sets forth the elements of kidnapping as: “[n]o person, by force, threat, or

deception, * * * by any means, shall remove another from the place where the other

person is found or restrain the liberty of the other person * * * [t]o terrorize, or to

inflict serious physical harm on the victim or another[.]”

               There is no question that Watts’s conduct in this case supports his

aggravated murder and kidnapping convictions. Therefore, we must determine if
any of the three Ruff factors are present such that the trial court could sentence

Watts on both offenses. In answering this question, we turn to a case that was

decided over 40 years ago, State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345

(1979). In Logan, the Supreme Court held the following:

       In establishing whether kidnapping and another offense of the same or
       similar kind are committed with a separate animus as to each pursuant
       to R.C. 2941.25(B), this court adopts the following guidelines:

       (a) Where the restraint or movement of the victim is merely incidental
       to a separate underlying crime, there exists no separate animus
       sufficient to sustain separate convictions; however, where the restraint
       is prolonged, the confinement is secretive, or the movement is
       substantial so as to demonstrate a significance independent of the
       other offense, there exists a separate animus as to each offense
       sufficient to support separate convictions;

       (b) Where the asportation or restraint of the victim subjects the victim
       to a substantial increase in risk of harm separate and apart from that
       involved in the underlying crime, there exists a separate animus as to
       each offense sufficient to support separate convictions.

Id., at the syllabus.

                Watts contends that any restraint of the victim was “merely incidental

to her murder.” We disagree. The facts established that the victim was severely

beaten such that she “had many fractures” in her face. It was so bad that the victim’s

facial bones had separated from the rest of her skull bones. She also had injuries to

her scalp, neck, chest, abdomen, both arms and legs, and her upper back. She had

bruises, scrapes, and abrasions all over her body. Her nose and lips were sunken

into her head due to the fact that the integrity of her face had been compromised.

She had a pattern of small “dimples” all over her body, leading the medical examiner
to think that the perpetrators may have used an iron to beat the victim. The victim

also had a fracture to her “hyoid bone,” which is a “u-shaped bone right above the

larynx or the voice box,” due to the “impact from a blow” or strangulation.

               Based upon the extent and severity of the victim’s injuries, we agree

with the trial court that Watts’s restraint of the victim was prolonged such that there

exists a separate animus sufficient to sustain separate convictions for kidnapping

and aggravated murder. Therefore, Watts’s aggravated murder and kidnapping

offenses were not allied offenses of similar import, and Watts’s trial counsel was not

ineffective when he stipulated to the same.

               Watts’s third and fourth assignments of error are overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant 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

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
