[Cite as State v. Miller, 2013-Ohio-1185.]


                       [Vacated Opinion. Please see 2013-Ohio-1651.]

                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98574




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    JESSE MILLER, JR.
                                                      DEFENDANT-APPELLANT




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



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-560247

        BEFORE:           Celebrezze, P.J., Rocco, J., and McCormack, J.
      RELEASED AND JOURNALIZED:   March 28, 2013



ATTORNEY FOR APPELLANT

Mark DeFranco
Mark A. DeFranco Law Offices
55 Public Square
Suite 1600
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Nicole Ellis
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant, Jesse Miller, Jr., appeals his convictions stemming from the

assault and robbery of a female. He argues that his convictions are unsupported by

sufficient evidence, are against the manifest weight of the evidence, that he was

compelled to wear his jail clothes during trial, and that the state committed prosecutorial

misconduct during closing arguments by vouching for the credibility of a witness and

asking the jury to imagine themselves in the victim’s position. After a thorough review

of the record and law, we affirm appellant’s convictions, but remand the case for

resentencing so the court can properly merge allied offenses.

                            I. Factual and Procedural History

       {¶2} Elizabeth Williams testified that on May 3, 2011, she was walking down

Coarth Avenue in Cleveland, Ohio, toward a friend’s house. She heard someone riding a

bike up to her from behind and heard the cyclist shout at her, “I thought I told you not to

be around here no more. I don’t want you around here.” She recognized the voice as

that of “Mookie” or “Mook,” someone she had issues with in the past. She testified that

at an earlier point in time, “Mook” had tried to grope her and she told him to leave her

alone. He responded that he better not see her in the neighborhood again.

       {¶3} Williams testified that the assailant rode the bike up to her, then got off of it,

shouting at her. He put his left forearm around her neck and with his right hand, reached
into her pockets and removed $47, shouting at her all the while. She testified that, after

taking the money from her, the assailant retrieved a gun from behind him in his waistband

and hit her in the face with the grip. She fell to the ground unconscious. She woke a

short time later and saw him peddling away, and then he entered a house just down the

street.

          {¶4} Williams got up shaken and bloody and began banging on the doors of homes

nearby for help. Odie Cooper answered his door to find Williams dripping blood all over

his porch. He ushered her inside and gave her a towel and some ice. He also called

911.

          {¶5} Police and paramedics arrived a short time later, and Williams was

transported to the hospital. The cut just above her left eye was treated with 11 stitches —

five applied inside the wound to deal with a piece of flesh that was removed by the blow,

and six applied to her skin to properly close the wound. A CT scan also revealed

fractured bones in her face.

          {¶6} Officer Kevin Walker of the Cleveland police department was first to arrive.

He found a badly bleeding and hysterical Williams.          She told him that “Mook” or

“Mookie” had hit her and had taken her money. Officer Walker generated a report that

indicated Williams did not allege that a gun was used, but that she was hit with an

unknown hard object.

          {¶7} Detective John Kraynik, also with the Cleveland police, was assigned to

investigate the incident. He initially had a phone conversation with Williams where he
learned that the individual who assaulted her went by the name of “Mook” or “Mookie.”

Det. Kraynik also reviewed a supplemental report that indicated the assailant was possibly

known as “Kaliffe.”

         {¶8} Det. Kraynik ran those aliases through a computer database to attempt to

determine the assailant’s real identity. The database contained a match to appellant.

Det. Kraynik constructed a photo lineup using six photographs. He arranged for Williams

to view the photographs with a police officer who was unfamiliar with the case and did

not know the identity of the suspect. Williams picked appellant’s photograph from this

array.

         {¶9} Appellant was eventually arrested and charged with two counts of

kidnapping, two counts of aggravated robbery, two count of felonious assault, and one

count of having a weapon while under disability. The first six counts also included one-

and three-year firearm specifications, repeat violent offender specifications, and notices

of prior conviction.    A jury trial commenced on May 29, 2012, on the counts of

kidnapping, aggravated robbery, and felonious assault. The weapon while under disability

charge, repeat violent offender specification, and prior conviction specification were tried

to the bench. The three-day trial concluded in guilty verdicts on two first-degree felony

counts of kidnapping (R.C. 2905.01(A)(2) and (A)(3)), one first-degree felony count of

aggravated robbery (R.C. 2911.01(A)(3)), and one second-degree felony count of

felonious assault (R.C. 2903.11(A)(1)). The jury found appellant did not possess a gun,

and therefore, found appellant not guilty of all gun specifications. The trial court found
appellant guilty of the notice of prior conviction specification, but not guilty of the

remaining matters tried to the bench.

       {¶10} At sentencing, on June 6, 2012, appellant raised the merger of allied

offenses, arguing that all the offenses should merge.          The state agreed that the

kidnapping, aggravated robbery, and felonious assault charges should merge. The court,

in pronouncing sentence, indicated that the kidnapping counts merged with each other

and with the aggravated robbery and felonious assault counts. The state elected to

proceed with sentencing on the first kidnapping count. After reviewing appellant’s

lengthy criminal history, the court ordered him to serve a ten-year prison sentence for this

count, but also imposed a ten-year sentence on the merged aggravated robbery count and

an eight-year sentence on the merged felonious assault count. The court ordered all

prison terms to be served concurrently to each other. The court waived fines and costs

and informed appellant of postrelease control.

       {¶11} Appellant then perfected a timely appeal raising four assignments of error:

       I.    The trial court erred when it denied the motion for acquittal under
       Crim.R. 29 because the state failed to present sufficient evidence of serious
       physical harm beyond a reasonable doubt.

       II.    The state committed prosecutorial misconduct by bolstering the
       credibility of the victim and asking the jury to place themselves in the
       victim’s shoes during closing arguments.
       III.   The trial court denied appellant the right to a fair trial by compelling
       him to wear his jail clothing and by failing to address the jury or give a
       limiting instruction.

       IV. Appellant’s convictions are against the manifest weight of the
       evidence.
                                 II. Law and Analysis

                                   A. Allied Offenses

      {¶12} Appellant first argues that his convictions for kidnapping, aggravated

robbery, and felonious assault are unsupported because the state failed to offer evidence

of serious physical harm. Although not raised by the parties, it must be noted that the

charges of aggravated robbery and felonious assault merged with the kidnapping charge

for sentencing purposes and were inappropriately assigned sentences. When merging

allied offenses, the trial court must consider them as if they were a single offense.

Therefore, a sentence may only be imposed on the offenses that survive merger. “When a

defendant has been found guilty of offenses that are allied offenses, * * * a trial court

must merge the crimes into a single conviction and impose a sentence that is appropriate

for the offense chosen for sentencing.”       State v. Damron, 129 Ohio St.3d 86,

2011-Ohio-2268, 950 N.E.2d 512, ¶ 17. “[F]or purposes of R.C. 2941.25, a ‘conviction’

is the combination of a guilt determination and a sentence or penalty.” Id. “Because

there may be only one conviction under R.C. 2941.25(A), ‘[a] defendant may be indicted

and tried for allied offenses of similar import, but may be sentenced on only one of the

allied offenses.’” State v. Bowman, 8th Dist. No. 97165, 2012-Ohio-1355, ¶ 29, quoting

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 17.

      {¶13} Here, the trial court mistakenly imposed sentence on offenses the court

indicated merged. Therefore, the trial court erred, and the case must be remanded for

resentencing where the trial court should impose a sentence on only those counts that
survive after proper merger. Accordingly, only the conviction for kidnapping will be

addressed in appellant’s first assignment of error.      State v. Hoang, 9th Dist. No.

09CA0061-M, 2010-Ohio-6054.          See also Bowman, 2012-Ohio-1355 (this court

addressed only the kidnapping conviction in a manifest weight challenge where the

defendant was found guilty of kidnapping and felonious assault, but the trial court merged

the two offenses for sentencing).

                                      B. Sufficiency

      {¶14} Under Crim.R. 29, a trial court “shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions as

to whether each material element of a crime has been proved beyond a reasonable doubt.”

 State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), at the syllabus. “A

motion for judgment of acquittal under Crim.R. 29(A) should be granted only where

reasonable minds could not fail to find reasonable doubt.” State v. Apanovitch, 33 Ohio

St.3d 19, 23, 514 N.E.2d 394 (1987). Thus, the test an appellate court must apply in

reviewing a challenge based on a denial of a motion for acquittal is the same as a

challenge based on the sufficiency of the evidence to support a conviction.

      {¶15} The Ohio Supreme Court has set forth the test an appellate court should

apply when reviewing the sufficiency of the evidence supporting a conviction:

      [T]he relevant inquiry on appeal is whether any reasonable trier of fact
      could have found the defendant guilty beyond a reasonable doubt. In other
      words, an appellate court’s function when reviewing the sufficiency of the
      evidence to support a criminal conviction is to examine the evidence
      admitted at trial to determine whether such evidence, if believed, would
      convince the average mind of the defendant’s guilt beyond a reasonable
      doubt.

State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991), citing State v. Eley, 56

Ohio St.2d 169, 383 N.E.2d 132 (1978).

      {¶16} R.C. 2905.01(A)(2) defines kidnapping, as it relates to this case, as the

restraint of one’s liberty of movement by force, threat, or deception to facilitate the

commission of any felony. The state alleged at trial that appellant did this to Williams in

order to commit the felony offenses of aggravated robbery or felonious assault. Both of

those predicate felonies require a showing of serious physical harm. R.C. 2911.01(A)(3);

R.C. 2903.11(A)(1). Appellant claims the record lacks evidence of serious physical

harm to the victim. This court disagrees.

      {¶17} Serious physical harm is defined to mean any of the following:

      (a) Any mental illness or condition of such gravity as would normally
      require hospitalization or prolonged psychiatric treatment;

      (b) Any physical harm that carries a substantial risk of death;

      (c) Any physical harm that involves some permanent incapacity, whether
      partial or total, or that involves some temporary, substantial incapacity;

      (d) Any physical harm that involves some permanent disfigurement or that
      involves some temporary, serious disfigurement;

      (e) Any physical harm that involves acute pain of such duration as to result
      in substantial suffering or that involves any degree of prolonged or
      intractable pain.

R.C. 2901.01(A)(5).
       {¶18} “The degree of harm that rises to the level of ‘serious’ physical harm is not

an exact science, particularly when the definition includes such terms as ‘substantial,’

‘temporary,’ ‘acute,’ and ‘prolonged.’”       State v. Irwin, 7th Dist. No. 06MA20,

2007-Ohio-4996, ¶ 37. Where a victim’s injuries included “two black eyes, a broken

nose, bruising and bleeding on her right temple, deep bruising to her upper body, and a

mild concussion which caused vomiting and headaches[,]” the Second District found

sufficient evidence of serious physical harm.      State v. Bootes, 2d Dist. No. 23712,

2011-Ohio-874, ¶ 20.

      {¶19} This court has also found sufficient evidence of serious physical harm in

cases with similar injuries. State v. Melendez, 8th Dist. No. 97175, 2012-Ohio-2385, ¶

14. There, this court affirmed its position that “when a victim’s injuries are serious

enough to cause the victim to seek medical treatment, it may be reasonably inferred that

the force exerted on the victim caused serious physical harm.”         Id., citing State v.

Wyland, 8th Dist. No. 94463, 2011-Ohio-455, ¶ 32; State v. Walker, 8th Dist. No. 52391,

1987 Ohio App. LEXIS 7570 (June 18, 1987).

      {¶20} Williams testified that she was knocked unconscious by a blow to her head

inflicted by appellant. She testified that she was bleeding significantly from a laceration

on her face. Cooper testified appellant was bleeding significantly from her face and that

blood soaked through the towel he gave her. Officer Walker testified that Williams was

covered with blood when he arrived on the scene. Williams testified that she received a

number of stitches, including stitches inside the wound because the blow to her head had
removed a chunk of flesh from her face. Her medical records indicate she received a

total of 11 stitches and followed up with a plastic surgeon, although further treatment was

deemed unnecessary. Williams also has a scar, which she pointed out to the jury while

testifying.

       {¶21} Appellant points to the testimony of Officer Jonathan Schafer of the

Cleveland police department as evidence that Williams did not suffer serious physical

harm. However, Officer Schafer, who interviewed Williams the day after the incident,

could not recall her injuries. He did not testify that Williams had no injuries, as appellant

intimates.

       {¶22} Appellant argues this case is similar to State v. Addison, 8th Dist. No.

96514, 2012-Ohio-260. There, this court found the evidence presented at trial did not

sufficiently demonstrate serious physical harm.      Id. at ¶ 26. However, the result in

Addison was due to the fact that the victim, “Anthony Brown[,] failed to testify against

Addison and, because Anthony refused medical treatment at the hospital[.]” Id. at ¶ 28.

In that case, the only evidence in the record of serious physical harm was photographs

showing the victim and the testimony of the victim’s brother.

       There was no evidence that Anthony suffered prolonged intractable pain,
       that he had any permanent disfigurement, or that the injury caused him
       substantial temporary incapacity. Anthony’s refusal of medical treatment
       deprives this court of any medical documentation of Anthony’s alleged
       injuries.

Id. at ¶ 29-30.
      {¶23} The present case is distinguishable because Williams testified that she was

knocked unconscious by a blow to her head from a gun wielded by appellant. This is a

temporary substantial incapacity. She further testified that she was taken to the hospital

by ambulance where she received treatment for skull fractures and a cut to her face that

required several stitches — a laceration from which she still has a scar — a permanent

disfigurement. Serious physical harm has been established in this record.

      {¶24} Appellant’s conviction for kidnapping is supported by sufficient evidence.

The rest of appellant’s sufficiency arguments hinge on a lack of serious physical harm.

Having found sufficient evidence of serious physical harm in the record, appellant’s

remaining arguments are likewise overruled.

                                   C. Manifest Weight

      {¶25} Appellant also claims his conviction for kidnapping is against the manifest

weight of the evidence. He points to alleged inconsistencies in Williams’s testimony.

This argument

      addresses the evidence’s effect of inducing belief. [State v. Thompkins, 78
      Ohio St.3d 380, 386-387, 1997-Ohio-52, 678 N.E.2d 541]. In other words,
      a reviewing court asks whose evidence is more persuasive — the state’s or
      the defendant’s? We went on to hold that although there may be sufficient
      evidence to support a judgment, it could nevertheless be against the
      manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. “When a
      court of appeals reverses a judgment of a trial court on the basis that the
      verdict is against the weight of the evidence, the appellate court sits as a
      ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the
      conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida
      (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
       {¶26} Williams certainly had credibility issues.         She acknowledged that she

currently resided in prison on drug charges at the time of her testimony. Her prior

criminal convictions were also used during direct and cross-examination. However, she

never wavered in her description of the events of May 3, 2011, and the jury must have

found that significant.

       {¶27} Williams testified that she was assaulted that day by the person she knew as

“Mook” or “Mookie” — a person she had known for a number of years. She picked

appellant out of a photo array after those aliases were matched to appellant. Cooper

witnessed the injuries to Williams shortly after they were inflicted and corroborated their

severity.   During the 911 call placed by Cooper, Williams can be heard in the

background proclaiming “Mookie” was the individual that assaulted her.

       {¶28} The record in this case does not clearly demonstrate that the jury lost its way

in convicting appellant of kidnapping. Therefore, appellant’s fourth assignment of error

is overruled.

                                  D. Prosecutorial Misconduct

       {¶29} Appellant next claims that, during closing arguments, the state committed

prosecutorial misconduct by vouching for the credibility of Williams and by asking the

jury to place itself in her situation.

       “The test regarding prosecutorial misconduct in closing arguments is
       whether the remarks were improper and, if so, whether they prejudicially
       affected substantial rights of the defendant.” State v. Smith, 14 Ohio St.3d
       13, 14, 470 N.E.2d 883 (1984). Prosecutors are granted wide latitude in
       closing argument, and the effect of any conduct of the prosecutor during
       closing argument must be considered in light of the entire case to determine
       whether the accused was denied a fair trial. State v. Maurer, 15 Ohio St.3d
       239, 266, 269, 473 N.E.2d 768 (1984). The touchstone of the analysis “is
       the fairness of the trial, not the culpability of the prosecutor.” Smith v.
       Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149.

       {¶30} However, no objection was raised during these comments, so this court must

determine if the state’s comments constitute plain error.

       {¶31} To constitute plain error, the error must be obvious on the record, palpable,

and fundamental, so that it should have been apparent to the trial court without objection.

 See State v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th Dist.1995).

Moreover, plain error does not exist unless the appellant establishes that the outcome of

the trial clearly would have been different but for the trial court’s allegedly improper

actions. State v. Waddell, 75 Ohio St.3d 163, 166, 1996-Ohio-100, 661 N.E.2d 1043.

Notice of plain error is to be taken with utmost caution, under exceptional circumstances,

and only to prevent a manifest miscarriage of justice. State v. Phillips, 74 Ohio St.3d 72,

83, 1995-Ohio-171, 656 N.E.2d 643.

       {¶32} Here, the state went through Williams’s testimony and opined that it found

her story credible. The state also asked the jury to imagine themselves in Williams’s

position to explain why she avoided contact with Det. Kraynik for two months during the

investigation of the incident. These issues must have been apparent to the trial court

because immediately following the state’s initial closing arguments, the court gave the

following instructions:
       Ladies and gentlemen, before [appellant] gives his closing argument, I have
       two instructions for you just briefly. One is which [sic] the Prosecutor and
       the Court do not vouch for the credibility of witnesses, all right? So
       credibility is your province solely, all right?

       So what anybody else thinks at this point does not matter. It is up to you.
       Does everybody understand that?

       In addition to that, ladies and gentlemen, I do not want you to put yourself
       in the position of the victim in this case, or anybody else.

       It is your decision to review the evidence and decide credibility and your

       perspective on this evidence, but I do not want you to put yourself in the

       position of the victim. Do you understand?

       {¶33} In light of the trial court’s instruction, which the jury is presumed to follow,

it cannot be said that appellant’s ability to receive a fair trial was compromised as he

claims. See State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168, 656 N.E.2d 623.

The instruction given by the trial court was clear and specifically addressed the arguments

appellant now makes on appeal. With only a bald assertion that the state’s comments

prejudiced appellant, and in light of the curative instruction given by the trial court,

appellant has not demonstrated that plain error occurred that would necessitate a new

trial. Therefore, appellant’s second assignment of error is overruled.

                                E. Clothing of the Accused

       {¶34} In his third assignment of error, appellant claims that he did not receive a

fair trial because he was compelled to wear his jail uniform rather than street clothes

during trial.
       {¶35} There is no basis in the record to support this assigned error. The trial court

put forth an order the day before trial that appellant was to be dressed in normal clothes

for trial. Appellant refused to change his clothes and was satisfied with his appearance.

The court offered to continue trial so that appellant could change, but appellant again

refused. There is no appealable issue here. Accordingly, this assignment of error is

overruled.

                                       III. Conclusion

       {¶36} Appellant’s conviction for kidnapping is supported by sufficient evidence

and is not against the manifest weight of the evidence.            The alleged instances of

prosecutorial misconduct during closing arguments do not rise to the level of plain error,

especially in light of the limiting instruction given by the trial court after the prosecutor’s

statements. Also, appellant’s informed decision to remain in his jail uniform during trial

cannot seriously be argued here where the trial court counseled appellant on the

importance of wearing street clothes and allowed appellant time to change clothes.

When appellant refused such an offer, he invited any resultant harm. However, the trial

court erred when imposing sentence on offenses that merged. The court must remove

those sentences and only impose sentence on those counts that survive after merger.

       {¶37} This cause is affirmed in part, reversed in part, and remanded to the lower

court for further proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the 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 appellant’s conviction having

been affirmed, any bail pending appeal is terminated.

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

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KENNETH A. ROCCO, J., and
TIM MCCORMACK, J., CONCUR
