[Cite as State v. Clark, 2014-Ohio-5101.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                  No. 14AP-142
v.                                                :             (C.P.C. No. 12CR-2587)

Antonio M. Clark,                                 :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :
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                                            D E C I S I O N

                                 Rendered on November 18, 2014
                              ___

                 Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
                 for appellee.

                 Clark Law Office, and Toki Michelle Clark, for appellant.
                           ____
                   APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

        {¶ 1} Antonio M. Clark is appealing from his multiple convictions of felony
charges following a jury trial. He assigns six errors for our consideration:
                 [I.] THE VERDICT OF GUILTY IS NOT SUPPORTED BY
                 LEGALLY SUFFICIENT EVIDENCE.

                 [II.] THE CONVICTION OF APPELLANT IS AGAINST THE
                 MANIFEST WEIGHT OF THE EVIDENCE.

                 [III.] THE TRIAL COURT ERRED WHEN IT FAILED TO
                 GRANT THE DEFENDANT'S MOTION FOR ACQUITTAL.

                 [IV.] JUROR MISCONDUCT IS PRESENT WHERE JURY
                 FOREMAN DISTRIBUTES HIS OWN WRITTEN INSTRUC-
                 TIONS WITH THREE JURORS PRESENT IN THE
                 DELIBERATION ROOM.
No. 14AP-142                                                                                 2


              [V.] THE RULE OF COMPLETENESS IS VIOLATED IN A
              CRIMINAL CASE WHEN SELECTIVE INFORMATION IS
              INTRODUCED IN A MANNER PLACING EVIDENCE IN A
              FALSE LIGHT.

              [VI.] THE MERGER OF AGGRAVATED ROBBERY, AGGRA-
              VATED BURGLARY, AND KIDNAPPPING IS PERMISSIBLE.

       {¶ 2} There is no serious debate that on March 6, 2011, two Ohio State University
("OSU") students were robbed at gunpoint, and the residence of one of the students was
burglarized. At trial, Clark argued that he was not one of the robbers. One of the robbers,
Alvin Meeks, testified at trial that Clark was, in fact, part of the group of three who did the
robbing and burglarizing.
       {¶ 3} One of the items taken was an iPhone with tracking capability. The phone
was soon tracked to a Waffle House on the east side of Columbus. This led Columbus
police to encounter Meeks and the gold-colored car he owned.
       {¶ 4} The police followed Meeks and soon realized that he no longer had the
iPhone. Police then tracked the phone to a nearby golf course and encountered two men
dressed in black. Upon realizing that police were present, the two men fled. Later, the
iPhone was found abandoned.
       {¶ 5} Meeks was arrested and, after attempting to exonerate himself with lies,
reached an agreement with the prosecutor to be debriefed as to the robberies and to
testify at trial against Antonio Clark.
       {¶ 6} Meeks claimed that he helped rob the students along with Clark and a friend
of Clark's known as "Fuzz." Meeks claimed that Clark had a .38 caliber handgun and that
Fuzz had a 9 mm. pistol.
       {¶ 7} After the robbery and burglary, the group went to the Waffle House where
they encountered the numerous police officers who responded. Meeks claimed that Clark
said it was "every man for himself" and grabbed the iPhone before fleeing.
       {¶ 8} Based upon Meeks' claims that Clark was involved, police created a photo
array and presented it to one of the OSU students. The student was 70 to 80 percent
certain that Clark was one of the robbers.
No. 14AP-142                                                                                3


         {¶ 9} Based upon Meeks' claims, Clark was indicted. The case proceeded to a jury
trial twice. No verdicts were reached at the first trial because the first jury could not
agree.
         {¶ 10} The case was tried a second time, and the second jury found Clark guilty of
all the charges and specifications in the indictment. Following sentencing, this appeal was
initiated.
         {¶ 11} The evidence presented at the second trial was sufficient to support the
conviction.     Meeks' description of what occurred, coupled with the OSU students'
identification of Clark as one of the robbers, was more than sufficient to support the
convictions under the legal standard we must apply in addressing the sufficiency of the
evidence.
         {¶ 12} Sufficiency of the evidence is the legal standard applied to determine
whether the case should have gone to the jury. State v. Thompkins, 78 Ohio St.3d 380,
386 (1997). In other words, sufficiency tests the adequacy of the evidence and asks
whether the evidence introduced at trial is legally sufficient as a matter of law to support a
verdict. Id. "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 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307
(1979). The verdict will not be disturbed unless the appellate court finds that reasonable
minds could not reach the conclusion reached by the trier of fact. Jenks at 273. If the
court determines that the evidence is insufficient as a matter of law, a judgment of
acquittal must be entered for the defendant. See Thompkins at 387.
         {¶ 13} The first assignment of error is overruled.
         {¶ 14} For a Crim.R. 29 motion for a judgment of acquittal to be sustained, the
evidence must have been insufficient to convict. As noted earlier, the evidence was more
than sufficient to convict. Therefore, the trial court was correct to overrule the motion for
judgment of acquittal.
         {¶ 15} The third assignment of error is overruled.
No. 14AP-142                                                                               4


       {¶ 16} The standard for assessing the weight of the evidence is different from the
standard for assessing the sufficiency.
       {¶ 17} As this court has previously stated, "[w]hile the jury may take note of the
inconsistencies and resolve or discount them accordingly, see [State v.] DeHass [10 Ohio
St.2d 230 (1967)], such inconsistencies do not render defendant's conviction against the
manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
1236 (May 28, 1996). It was within the province of the jury to make the credibility
decisions in this case. See State v. Lakes 120 Ohio App. 213, 217 (4th Dist.1964) ("It is the
province of the jury to determine where the truth probably lies from conflicting
statements, not only of different witnesses but by the same witness.").
       {¶ 18} See State v. Harris, 73 Ohio App.3d 57, 63 (10th Dist.1991), (even though
there was reason to doubt the credibility of the prosecution's chief witness, he was not so
unbelievable as to render verdict against the manifest weight).
       {¶ 19} We are not in a position to weigh the evidence in the way the second jury
did, especially the testimony of Alvin Meeks. We did not see the live testimony. We can
only review transcripts and exhibits. This case does not present one of the rare occasions
where we can find the jury's verdicts were against the manifest weight of the evidence
because the weight of the evidence totally rests on the credibility of Alvin Meeks.
       {¶ 20} The second assignment of error is overruled.
       {¶ 21} The fourth assignment of error discusses the way the trial court handled an
instance of what could be considered jury misconduct.
       {¶ 22} The foreman of the jury brought documents into the room where the jury
deliberations were to be conducted. The documents were viewed by the trial court as
"completely innocuous." The documents contained information about how to conduct an
effective meeting. The focus included insights on how to allow each juror to present his or
her point of view on the evidence presented. Clark's trial counsel indicated to the court
that the trial counsel viewed the situation to be non-problematic. Given this opinion
expressed by trial counsel, plain error had to exist for us to overturn the conviction. We
cannot find that plain error is present.
No. 14AP-142                                                                               5


       {¶ 23} To constitute plain error, the error must be obvious on the record, palpable,
and fundamental such that it should have been apparent to the trial court without
objection. See State v. Tichon, 102 Ohio App.3d 758, 767 (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). 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); State v. Ospina, 81 Ohio App.3d
644, 647 (10th Dist.1992).
       {¶ 24} We overrule the fourth assignment of error.
       {¶ 25} The fifth assignment of error addresses the appropriate interpretation of
Evid.R. 106, which reads:
              When a writing or recorded statement or part thereof is
              introduced by a party, an adverse party may require the
              introduction at that time of any other part or any other
              writing or recorded statement     which    is   otherwise
              admissible and which ought in fairness to be considered
              contemporaneously with it.

       {¶ 26} Clark was interviewed by the police on two occasions. The State of Ohio
wanted the jury to hear the second interview. Counsel for Clark wanted the jury to also
hear the first interview. The State resisted, arguing that the interview was not "otherwise
admissible" and, therefore, not something to be placed before the jury.
       {¶ 27} As noted in the State's brief, Evid.R. 106 addresses only the timing of when
admissible evidence is presented ("to be considered contemporaneously"), not the
admissibility per se. Clark's first interview with the police was clearly an exculpatory
statement and, therefore, not admissible hearsay. We cannot say that the trial court
abused its discretion in refusing the effort of Clark's counsel to place Clark's first
statement to police before the jury.
       {¶ 28} The fifth assignment of error is overruled.
       {¶ 29} The sixth assignment of error addresses what it usually referred to as
merger of offenses. In reality, the issue is the interpretation of the multiple-counts
statute, R.C. 2941.25, which reads:
No. 14AP-142                                                                               6


              (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.

       {¶ 30} This court has " 'consistently applied the two-part test set forth in [State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314] plurality opinion when conducting allied-
offense analysis.' " State v. Phipps, 10th Dist. No. 13AP-640, 2014-Ohio-2905, ¶ 62,
quoting State v. Damron, 10th Dist. No. 12AP-209, 2012-Ohio-5911, ¶ 11, citing State v.
Carson, 10th Dist. No. 11AP-809, 2012-Ohio-4501, ¶ 16.             Johnson stands for the
proposition 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.
       {¶ 31} Under the two-part Johnson analysis, "we first examine whether the
offenses are able to be committed with the same conduct." Damron at ¶ 11. If it is
possible for an offender to commit both offenses with the same conduct, the Johnson test
then requires the court to determine whether the offenses were, in fact, committed by the
same conduct. Phipps at ¶ 63. The "same conduct" is " 'a single act, committed with a
single state of mind.' " Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, ¶ 50. If the answer to both inquiries is yes, the court must merge the
offenses as allied offenses of similar import prior to sentencing. Phipps at ¶ 63, citing
Johnson at ¶ 50. Conversely, the offenses will not merge if the court determines "that the
commission of one offense will never result in the commission of the other, or if the
offenses are committed separately, or if the defendant has separate animus for each
offense." (Emphasis sic.) Johnson at ¶ 51.
       {¶ 32} Applying the statute and the two-part Johnson test, we agree with the
rulings of the trial court, which merged several of the convictions but not all of them.
No. 14AP-142                                                                              7


       {¶ 33} The trial court merged Counts 2, 3, and 4 of the indictment. The trial court
also merged Counts 6, 7, and 8 of the indictment. Counts 2, 3, and 4 of the indictment are
all robbery charges out of an event and involving a single victim. Counts 6, 7, and 8 of the
indictment are likewise charges out of a single event and involving a victim.
       {¶ 34} The trial court did not merge the remaining robbery charge with an
aggravated burglary charge and kidnapping charge with respect to each victim. However,
the trial court sentenced Clark for kidnapping concurrent with the associated robbery.
       {¶ 35} The trial court did not merge the aggravated burglary charge with the other
charges. Aggravated robberies were completed before the group of men decided to enter
the residence of one of the OSU students and began participating in an aggravated
burglary. The two OSU students were restrained at gunpoint in the house and forced to
lie facedown on the kitchen floor. More and different property was taken from the house,
specifically a television and digital camera.
       {¶ 36} The length of time involved in the burglary made merger inappropriate.
Further, the burglary was not incident to the theft at gunpoint, which occurred outside the
house. As a result, the trial court could view the robberies and the burglaries as separate
crimes, not allied offenses of similar import.
       {¶ 37} The sixth assignment of error is overruled.
       {¶ 38} All six assignments of error having been overruled, the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.

                         O'GRADY and LUPER SCHUSTER, JJ., concur.

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