[Cite as State v. Cremeans, 2016-Ohio-7930.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :   Hon. John W. Wise, J.
                                               :   Hon. Patricia A. Delaney, J.
 -vs-                                          :
                                               :   Case No. CT2015-0062
                                               :
 RANDALL K. CREMEANS, JR.                      :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Muskingum County
                                                   Court of Common Pleas, Case No.
                                                   CR2015-0160



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            November 17, 2016




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 D. MICHAEL HADDOX                                 TONY A. CLYMER
 MUSKINGUM CO. PROSECUTOR                          1420 Matthias Drive
 GERALD V. ANDERSON, II                            Columbus, OH 43224
 27 North Fifth St., P.O. Box 189
 Zanesville, OH 43702-0189
Muskingum County, Case No. CT2015-0062
                                                                                       2

Delaney, J.

      {¶1} Defendant-appellant Randall K. Cremeans, Jr. appeals from the judgment

entries of conviction and sentence entered in the Muskingum County Court of Common

Pleas. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} The following evidence is adduced from the record of appellant’s jury trial.

                              Hendricks Accuses Appellant of Theft

      {¶3} On April 17, 2015, around 6:00 p.m., Tameka Alexander was at home in

Zanesville with her two minor children, “Jane Doe” and “Mary Doe,” when several friends

stopped by, including minors “B.B.” and “C.C.,” Jeremiah Marple, and Samantha Evans.

Tameka was pregnant at the time. Tameka’s boyfriend Brent Mayle also lives at the home

but was not present during these events. Mayle knows appellant and appellant had been

to the house several times.

      {¶4} The day before, appellant purportedly met Christopher Hendricks for the

first time. On April 17, Hendricks confronted appellant about stolen items in appellant’s

possession, including two T.V.s and a game system.1 The stolen items belonged to

Hendricks.    Hendricks said Tameka and Mayle told him appellant stole the items.

Appellant denied the theft and asserted he bought the items from Mayle. Hendricks told

appellant they were going to Tameka’s house to “straighten this out.”




1At trial a question arose whether the stolen items included a locked safe; appellant
denied knowledge of a safe and other witnesses mentioned only the electronics as the
disputed items.
Muskingum County, Case No. CT2015-0062
                                                                                         3

                           Appellant and Hendricks Confront Tameka

       {¶5} Around 6:00 p.m., Tameka, her daughters, and the friends were inside the

house when appellant walked in the door, closely followed by Hendricks, who shut and

locked the door behind him. Appellant told Tameka to tell Hendricks appellant didn’t take

his stuff. The scene became chaotic.

       {¶6} Hendricks’ purpose was to find Mayle. He immediately became irate and

confrontational; he pulled a gun and “waved it around,” yelling. Hendricks pointed his gun

at everyone present, including at Jane and Mary Doe and at Tameka’s stomach.

Hendricks told Tameka and the children to sit down on the couch.

       {¶7} Hendricks took Tameka’s cell phone, put his gun to Jane Doe’s head and

told Tameka to give him her password. Hendricks called Mayle using the phone and told

him he had until 10:00 p.m. to get home “and deal with his shit” or he wouldn’t have a

home to return to. B.B. heard him ask Mayle where he was and where his money was.

       {¶8} Meanwhile, appellant grabbed Tameka’s daughter and called Tameka a

“stupid bitch” for putting her kids through this and not cooperating with Hendricks fast

enough. He also tried to kick Tameka.

       {¶9} Appellant told Hendricks they should leave because Mayle was probably

calling the police, and the victims heard the two discussing whether they should bring the

victims with them. B.B. heard appellant tell Hendricks there wasn’t enough room to take

all of the victims. Appellant suggested instead that they take the victims’ cell phones and

I.D.s. Hendricks told appellant to “tie them up.”

       {¶10} Accounts varied as to whether appellant had a gun. Tameka said he had a

gun which he sometimes put in his pocket and at other times waved in the air. Tameka
Muskingum County, Case No. CT2015-0062
                                                                                          4

testified she did not remember a description of appellant’s gun, although it was smaller

than Hendricks,’ which was gray and black and “pocket size.” She did not see the gun

well enough to describe it. B.B. agreed that both appellant and Hendricks had “small”

guns and both yelled at Tameka about tracking down Mayle. B.B. described appellant’s

gun as black and gray.

       {¶11} C.C., Evans, Marple, and B.B. were tied up with phone charging cords and

electronics cords. Accounts varied as to which suspect tied up the victims. Tameka

testified both appellant and Hendricks tied people up, but did not recall which suspect tied

which victim. B.B. only saw Hendricks tying people up but acknowledged she was terrified

and only focused on what was happening to her, not the others.

       {¶12} Tameka and her daughters remained on the couch while the friends, now

tied up, sat against the stairs. B.B. testified Hendricks told the group not to say anything

because “they got money and money gets you what you want,” which she took as a threat.

       {¶13} Appellant and Hendricks left the house and got in Hendricks’ car, but

Hendricks came back inside because he forgot his keys. C.C., B.B., Marple, and Evans

untied themselves in the meantime and ran to their own car. Appellant went to the victims’

car and took the keys out of the ignition, telling them not to leave until he and Hendricks

were gone.

       {¶14} Hendricks returned to the car and drove off with appellant.

       {¶15} C.C. testified reluctantly at trial. She said appellant was in shock during the

incident and she believes he only helped to tie up one victim other than her. C.C. said

appellant hugged her and tried to untie her. C.C. also testified, however, that it was

appellant’s idea to take the victims’ I.D.s “in case anyone snitched.” C.C. said appellant
Muskingum County, Case No. CT2015-0062
                                                                                        5

tried to calm the situation and she only saw one gun during the entire incident, which was

brandished by Hendricks.

       {¶16} Samantha Evans also testified only Hendricks showed a gun. She did not

recall who tied up the victims. She recalled Hendricks threatening them not to snitch

because he “has money and money can get him what he wants.” Hendricks also said he

had seven bullets, or one for everyone in the house. She testified that appellant and

Hendricks discussed taking the victims with them, but appellant suggested they should

take their cell phones and I.D.s instead. Appellant asked Evans for her I.D. and she said

it was outside in the car, in her jacket pocket. Appellant left the house and brought the

jacket back in for Evans to hand over the I.D.

       {¶17} Evans further testified that appellant and Hendricks left the house but were

still outside in their car when she and the others ran outside to their own car. Evans

testified appellant came over to their car, took the keys out of the ignition and dropped

them inside the car, telling them to wait until he and Hendricks left.

                    Appellant’s Testimony, Cross Examination, and Rebuttal

       {¶18} Appellant testified on his own behalf at trial. He acknowledged his record

of felony convictions. Appellant said his plan in taking Hendricks to Tameka’s house on

April 17 was simply to ask her why she told Hendricks appellant stole his stuff. He walked

into the house without knocking because he was accustomed to doing so and the door

was unlocked.

       {¶19} Appellant testified he was shocked that Hendricks immediately became

angry, pulling a gun and threatening Tameka. Hendricks locked the door and said no one
Muskingum County, Case No. CT2015-0062
                                                                                          6

was leaving until he got his stuff. Appellant said he was trying to calm the frightened kids

and victims as Hendricks yelled, waved a gun and threatened everyone.

       {¶20} Appellant admitted he argued with Tameka, that he told her to tell Hendricks

where Mayle was and asked whether she loved her kids. Appellant insisted Hendricks

alone tied the victims up while appellant walked around aimlessly, not knowing what to

do. He heard Hendricks call Mayle from Tameka’s phone, and heard Mayle say he wasn’t

returning to the house. In response Hendricks told Mayle he would kill everyone in the

house. Mayle hung up on Hendricks, and appellant testified he tried to get Hendricks to

leave by warning him Mayle was probably calling police. Hendricks was irate and said

they were taking everyone with them, to which appellant suggested they take the I.D.s

instead. Appellant said he tried to untie one of the victims but Hendricks stopped him,

saying they had to leave immediately. Appellant got in the car with Hendricks because

he was scared. Hendricks realized he left his car keys in the house and went back in.

       {¶21} Appellant said it was Hendricks who went to the victims’ car and removed

the keys from the ignition, telling the victims not to leave until they were gone.

       {¶22} Appellant said he was trying to reason with Hendricks throughout the

incident, telling him he had “nothing to do with it,” meaning the theft of Hendricks’ items.

Appellant said Hendricks dropped him off and the two never spoke again.

       {¶23} Appellant insisted he did not have a gun on April 17, never displayed a gun,

and never claimed he had a gun or bullets. He only suggested taking the victims’ I.D.s

so that Hendricks would not feel it necessary to take the victims with them when they fled

the house. Appellant denied taking anyone’s phones and denied tying anyone up. He

said he had no idea what Hendricks planned to do when they went to Tameka’s house.
Muskingum County, Case No. CT2015-0062
                                                                                              7

He was “in shock” throughout the incident but couldn’t stop Hendricks because Hendricks

had a gun.

       {¶24} Appellant testified he turned himself in to police shortly after he heard police

were looking for him, although he admitted he was “too scared” to go to the police on his

own immediately after the incident.

       {¶25} On cross-examination, appellant was queried about events leading up to

the incident at Tameka’s house. He claimed that Hendricks was “not aggressive” when

he confronted appellant about his stolen belongings, but he also said that the night before,

Hendricks’ “crew” had marched appellant through a dark alley and he thought they would

shoot him. Appellant continued the next day to insist he hadn’t stolen Hendricks’ items,

and Hendricks then told him they were going to Tameka’s house to “straighten this out.”

Appellant testified he did not tell Detective Hill, the lead investigator, that Hendricks called

him the next day and “wanted to go do it again.”

       {¶26} Appellee called Hill as a rebuttal witness. Hill testified that during the

interview, appellant told him Hendricks called him the next day and “wanted me to go

again, bro.”

                                  Indictment, Trial, and Conviction

       {¶27} Appellant was charged by indictment as follows:             Count I, aggravated

burglary pursuant to R.C. 2911.11(A)(2), a felony of the first degree; Counts II through V,

kidnapping pursuant to R.C. 2905.01(A)(2), all felonies of the first degree; Counts VI

through VIII, kidnapping pursuant to R.C. 2905.01(A)(3), all felonies of the first degree;

Counts IX through XIII, aggravated robbery pursuant to R.C. 2911.01(A)(1), all felonies
Muskingum County, Case No. CT2015-0062
                                                                                        8

of the first degree; and Counts XIV2 and XV, having weapons while under disability

pursuant to R.C. 2923.13(A)(2) and (A)(3), both felonies of the third degree. Counts I

through XIII are accompanied by firearm specifications pursuant to R.C. 2941.145.

      {¶28} Appellant entered pleas of not guilty and waived his right to trial by jury as

to Count XV, weapons under disability, only.

      {¶29} The remaining counts proceeded to trial by jury and appellant was found

guilty upon Counts I through XI.3 The trial court found appellant guilty upon Count XV,

weapons under disability. Both parties submitted sentencing memoranda. A sentencing

hearing was held on November 4, 2015 and by entry dated November 19, 2015, the trial

court imposed a total aggregate prison term of 30 years.

      {¶30} Appellant now appeals from the judgment entries of his convictions and

sentence.4

      {¶31} Appellant raises four assignments of error:

                             ASSIGNMENTS OF ERROR

      {¶32} “I.     THE    APPELLANT WAS          DEPRIVED OF         THE    EFFECTIVE

ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL

CONSTITUTIONS WHEN, AMONG OTHER THINGS, HE DID NOT REQUEST A JURY

INSTRUCTION ON THE AFFIRMATIVE DEFENSES OF DURESS AND NECESSITY.”


2       The Entry of appellant’s arraignment notes appellant was indicted upon each count
absent Count XIV, having weapons while under disability. Appellant did not enter a not
guilty plea to Count XIV and no further mention of Count XIV is contained in the record.
3       Appellee’s brief states two counts of aggravated robbery were nolled.
4       Appellant filed a pro se motion for new trial on January 5, 2016, supplemented by
counsel on March 17, 2016. The trial court held an evidentiary hearing and overruled the
motion for new trial by judgment entry dated April 5, 2016. Appellant has also filed a
notice of appeal from that judgment entry. See, Fifth District Court of Appeals,
Muskingum County Case No. CT2016-0018.
Muskingum County, Case No. CT2015-0062
                                                                                         9

       {¶33} “II.    THE GUILTY VERDICTS FOR AGGRAVATED BURGLARY,

AGGRAVATED ROBBERY WITH A FIREARM SPECIFICATION, KIDNAPPING WITH A

FIREARM SPECIFICATION, AND HAVING A WEAPON WHILE UNDER DISABILITY

AGAINST APPELLANT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

AND CONTRARY TO LAW.”

       {¶34} “III.   THE TRIAL COURT VIOLATED APPELLANT’S STATE AND

FEDERAL DOUBLE JEOPARDY PROTECTIONS, STATE AND FEDERAL RIGHTS TO

DUE PROCESS, AND R.C. 2941.25 BY FAILING TO MERGE THE ALLIED OFFENSES

OF AGGRAVATED BURGLARY, AGGRAVATED ROBBERY, AND KIDNAPPING

WHICH WERE BASED ON THE SAME ACT OF VIOLENCE.”

       {¶35} “IV. THE TRIAL COURT PLAINLY ERRED IN IMPOSING CONSECUTIVE

SENTENCES FOR APPELLANT’S SEPARATE CONVICTIONS RENDERING THE

SENTENCES CONTRARY TO LAW.”

                                       ANALYSIS

                                            I.

       {¶36} In his first assignment of error, appellant argues defense trial counsel was

ineffective in failing to request jury instructions upon the affirmative defenses of duress

and necessity. We disagree.

       {¶37} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In

assessing such claims, “a court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the defendant
Muskingum County, Case No. CT2015-0062
                                                                                          10

must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S.

91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

       {¶38} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶39} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       {¶40} Appellant refers to duress and necessity interchangeably.             Both are

affirmative defenses. See, State v. Sappienza, 84 Ohio St. 63, 95 N.E. 381 (1911); Takacs

v. Engle, 768 F.2d 122, 126 (6th Cir.1985); State v. Cross, 58 Ohio St.2d 478, 487-488,

391 N.E.2d 317 (1979). As such, the defendant carries the burden of going forward with

evidence of duress or necessity, and the burden of proving either by a preponderance of

the evidence. See R.C. 2901.05(A).        If the defendant makes such a showing by a

preponderance of the evidence, he is entitled to be acquitted.

       {¶41} To establish either affirmative defense, appellant would have to

demonstrate he was under an immediate, continuous threat of serious physical injury.

“One of the essential features of a necessity or duress defense is the sense of present,

imminent, immediate and impending death, or serious bodily injury.” State v. Cross, 58
Muskingum County, Case No. CT2015-0062
                                                                                          11

Ohio St.2d 478, 487-488, 391 N.E.2d 317 (1979), citations omitted. “In order for duress

to be a defense, the force which is claimed to have compelled criminal conduct against

the will of the actor must be immediate and continuous during all the time the act is being

committed.” State v. Dapice, 57 Ohio App.3d 99, 106-07 566 N.E.2d 1261 (9th Dist.1989).

The defendant claiming duress must show “he honestly believes and has good reason to

believe that he is in immediate danger of death or great bodily harm, and that there was

no reasonable opportunity to escape[.]” 4 Ohio Jury Instructions 73, Section 411.20(1)

(1996). To prove the defense of necessity, the following elements must be established:

“(1) the harm must be committed under pressure of physical or natural force, rather than

human force; (2) the harm sought to be avoided is greater than, or at least equal to that

sought to be prevented by the law defining the offense charged; (3) the actor reasonably

believes at that moment that his act is necessary and is designed to avoid the greater

harm; (4) the actor must be without fault in bringing about the situation; and (5) the harm

threatened must be imminent, leaving no alternative by which to avoid the greater harm.”

State v. Mogul, 11th Dist. Trumbull Nos.2003–T–0177 & 2003–T–0174, 2006-Ohio-1878,

2006 WL 988081, ¶ 44, quoting State v. Prince, 71 Ohio App.3d 694, 699, 595 N.E.2d

376 (4th Dist.1991). As cautioned by the Ohio Supreme Court, the defense of necessity

“is strictly and extremely limited in application and will probably be effective in very rare

occasions.” Cross, supra, 58 Ohio St.2d at 488.

       {¶42} Appellant argues defense trial counsel's failure to request a jury instruction

on duress or necessity is reversible error. However, the trial court's charge to the jury

must be governed by the evidence presented. Dapice, supra, 57 Ohio App.3d at 106,

citing State v. Loudermill, 2 Ohio St.2d 79, 206 N.E.2d 198 (1965). The record in the
Muskingum County, Case No. CT2015-0062
                                                                                          12

instant case does not support an instruction on either affirmative defense. No evidence

exists appellant was threatened by Hendricks. Instead, appellant brought Hendricks into

the house, participated in the acts of threatening, intimidating, and tying the victims, and

then left with Hendricks. Further, at least one victim testified appellant prevented them

from leaving by removing the keys from the ignition of their vehicle. There is no evidence

Hendricks compelled criminal conduct against appellant’s will “immediate[ly] and

continuous[ly] during all the time the act [was] committed.” Dapice, supra. Moreover, as

to the elements of necessity, appellant was at fault in creating the situation by bringing

Hendricks into the house in the first place. Although he insists he tried to calm the

explosive situation, he brought Hendricks to the house to deflect blame from himself for

the theft of Hendricks’ items. The night before, he thought Hendricks’ crew might shoot

him; the next day, appellant attempted to deliver Mayle to Hendricks instead.

       {¶43} Defense trial counsel may have realized the futility of a necessity or duress

defense, especially in light of appellant’s own testimony.        “The trial strategy to be

employed is trial counsel's bailiwick, which this court will not readily invade.”   State v.

Sonko, 9th Dist. Lorain No. 95CA006181, 1996 WL 267749 (May 22, 1996). Having

considered the facts of the instant case at the time of counsel's conduct, failure to request

a duress instruction was a matter of trial strategy within trial counsel's discretion. Id.

“Because the evidence did not support a jury instruction on duress, and because, in light

of the evidence, there is no reasonable probability an instruction on duress would have

changed the outcome of [appellant's] trial, counsel's failure to request a duress instruction

did not constitute ineffective assistance.” Id.
Muskingum County, Case No. CT2015-0062
                                                                                            13

       {¶44} In our evaluation of appellant’s assignment of error, we must determine

whether trial counsel's performance fell below an objective standard of reasonable

representation. Strategic and tactical decisions of trial counsel fall within the scope of

objectionably reasonable judgment, and generally, “[a]n attorney's decision not to request

a particular jury instruction is a matter of trial strategy and does not establish ineffective

assistance of counsel.” State v. Morris, 9th Dist. Summit No. 22089, 2005-Ohio-1136,

2005 WL 605441, ¶ 100. If evidence is adduced to meet the burden of production of an

affirmative defense, it is difficult to characterize trial counsel's failure to formally assert

the defense and request a corresponding instruction as trial strategy. See, State v.

Vandergriff, 11th Dist. Ashtabula No. 99–A–0075, 2001 WL 1117182 (Sept. 21, 2001). In

the instant case, however, appellant’s evidence, including testimony through cross and

direct examinations, did not meet the burden of production by establishing a sufficient

evidentiary basis necessary to warrant an instruction on duress or necessity. See, State

v. Barnes, 11th Dist. Portage No. 2012-P-0133, 2013-Ohio-2836, 994 N.E.2d 925.

       {¶45} We also find there is no reasonable probability that, but for counsel's alleged

error, the result of the proceeding would have been different. If counsel had asserted

either defense and requested instructions, there is no reasonable probability appellant

would have been acquitted.

       {¶46} Appellant’s first assignment of error is overruled.

                                                  II.

       {¶47} In his second assignment of error, appellant argues his convictions are

against the manifest weight of the evidence. We disagree.
Muskingum County, Case No. CT2015-0062
                                                                                           14

       {¶48} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541. 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.

       {¶49} Appellant was convicted of multiple counts of kidnapping pursuant to R.C.

2905.01(A)(2) and (3):

                     (A) No person, by force, threat, or deception, or, in the case

              of a victim under the age of thirteen or mentally incompetent, by any

              means, shall remove another from the place where the other person

              is found or restrain the liberty of the other person, for any of the

              following purposes:

                     * * * *.

                     (2) To facilitate the commission of any felony or flight

              thereafter;

                     (3) To terrorize, or to inflict serious physical harm on the victim

              or another;

                     * * * *.
Muskingum County, Case No. CT2015-0062
                                                                                       15

             {¶50} Appellant was also convicted upon multiple counts of

      aggravated robbery pursuant to R.C. 2911.01(A)(1), which states in

      pertinent part: (A) No person, in attempting or committing a theft offense, as

      defined in section 2913.01 of the Revised Code, or in fleeing immediately

      after the attempt or offense, shall do any of the following: (1) Have a deadly

      weapon on or about the offender's person or under the offender's control

      and either display the weapon, brandish it, indicate that the offender

      possesses it, or use it[.]

      {¶51} Appellant was convicted of one count of aggravated burglary pursuant to

R.C. 2911.11(A)(2), which states:

                     (A) No person, by force, stealth, or deception, shall trespass

             in an occupied structure or in a separately secured or separately

             occupied portion of an occupied structure, when another person

             other than an accomplice of the offender is present, with purpose to

             commit in the structure or in the separately secured or separately

             occupied portion of the structure any criminal offense, if any of the

             following apply:

                     * * * *.

                     (2) The offender has a deadly weapon or dangerous ordnance

             on or about the offender's person or under the offender's control.
Muskingum County, Case No. CT2015-0062
                                                                                        16

       {¶52} Finally, appellant was found guilty of two firearms specifications pursuant to

R.C. 2941.1455 and one count of having weapons while under disability pursuant to R.C.

2923.13(A)(3), which states:

                    (A) Unless relieved from disability under operation of law or

             legal process, no person shall knowingly acquire, have, carry, or use

             any firearm or dangerous ordnance, if any of the following apply:

                    * * * *.

                    (3) The person is under indictment for or has been convicted

             of any felony offense involving the illegal possession, use, sale,

             administration, distribution, or trafficking in any drug of abuse or has

             been adjudicated a delinquent child for the commission of an offense

             that, if committed by an adult, would have been a felony offense

             involving   the   illegal   possession,   use,   sale,   administration,

             distribution, or trafficking in any drug of abuse.

       {¶53} Appellant argues the jury lost its way in finding him guilty of the charged

offenses because the testimony of the victims varied as to whether he brandished a

weapon or personally tied up any of the victims or took their cell phones. Moreover,

appellant argues he was actually trying to help the victims by calming the situation.

Appellant’s argument rests upon a distortion of the context in which this incident arose.




5      R.C. 2941.145(A) requires imposition of a three-year mandatory prison term upon
an offender pursuant to R.C. 2929.14(B)(1)(a)(ii) of the Revised Code if the count in the
indictment charging the offense specifies that the offender had a firearm on or about the
offender's person or under the offender's control while committing the offense and
displayed the firearm, brandished the firearm, indicated that the offender possessed the
firearm, or used it to facilitate the offense.
Muskingum County, Case No. CT2015-0062
                                                                                          17

       {¶54} Appellant is responsible for bringing Hendricks to Tameka’s house and for

telling him Mayle was responsible for the theft. Appellant’s motive was to deflect blame

from himself. In his statement of facts, appellant misstates how the dispute arose, casting

the circumstances in a less-menacing light: “Apparently, Hendricks had sold some

personal items to [* * * Mayle * * *] and that he evidently owed Hendricks payment for this

property.” (Brief, 3). In fact, as the testimony of appellant established, Hendricks accused

appellant of stealing his stuff. This “stuff” included expensive electronics, but may also

have included a safe or some other item Hendricks was willing to go to great lengths to

get back. Hendricks and his “crew” confronted appellant the night before, intimidating

him to the extent that by his own admission, he thought he was going to be shot. When

Hendricks accused appellant of the theft the next day, appellant responded that he only

bought the items from Mayle and he didn’t know why Tameka and Mayle would have told

Hendricks he was the thief.

       {¶55} Hendricks thus instructed appellant they would track down Mayle and

“straighten this out.” The ensuing confrontation at Tameka’s house then arose from

considerably more antagonistic circumstances than appellant represents in his brief.

       {¶56} Appellant now claims his convictions are against the manifest weight of the

evidence because the victims’ testimony varied and he was trying to defuse the situation.

“The weight of the evidence concerns the inclination of the greater amount of credible

evidence offered in a trial to support one side of the issue rather than the other.” State v.

Brindley, 10th Dist. Franklin No. 01AP–926, 2002–Ohio–2425, ¶ 16. We defer to the trier

of fact as to the weight to be given the evidence and the credibility of the witnesses. State

v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraph one of the syllabus.
Muskingum County, Case No. CT2015-0062
                                                                                         18

When assessing witness credibility, “[t]he choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d

120, 123, 489 N.E.2d 277 (1986). “Indeed, the factfinder is free to believe all, part, or

none of the testimony of each witness appearing before it.” State v. Pizzulo, 11th Dist.

Trumbull No. 2009-T-0105, 2010-Ohio-2048, ¶ 11.          Furthermore, if the evidence is

susceptible to more than one interpretation, a reviewing court must interpret it in a manner

consistent with the verdict. Id.

       {¶57} Appellant points out that some witnesses testified he tried to defuse the

volatile situation with Hendricks to some extent. Other witnesses, however, unequivocally

testified appellant also had a gun and participated in the threats and taunts. A defendant

is not entitled to a reversal on manifest weight grounds simply because there was

inconsistent evidence presented at trial. State v. Raver, 10th Dist. Franklin No. 02AP–

604, 2003–Ohio–958, ¶ 21. The trier of fact is in the best position to take into account any

inconsistencies, along with the witnesses' demeanor and manner of testifying, and

determine whether or not the witnesses' testimony is credible. See, State v. Williams, 10th

Dist. Franklin No. 02AP–35, 2002–Ohio–4503, ¶ 58.

       {¶58} We have held that the testimony of one witness, if believed by the jury, is

enough to support a conviction. See State v. Dunn, 5th Dist. Stark No.2008–CA–00137,

2009–Ohio–1688, ¶ 133. Testimony from appellee’s witnesses established appellant had

a gun, brought Hendricks into the house, took phones, grabbed one of Tameka’s young

daughters, tied up some of the victims, and took I.D.s. Appellant left the house to retrieve

one victim’s I.D., and removed the keys from the ignition of the car when the victims
Muskingum County, Case No. CT2015-0062
                                                                                          19

attempted to leave. The jury may take note of the inconsistencies and resolve or discount

them accordingly, but such inconsistencies do not render defendant's conviction against

the manifest weight of the evidence. State v. Nivens, 10th Dist. Franklin No. 95APA09–

1236, 1996 WL 284714, at *3 (May 28, 1996). A jury, as the finder of fact and the sole

judge of the weight of the evidence and the credibility of the witnesses, may believe or

disbelieve all, part, or none of a witness's testimony. State v. Antill, 176 Ohio St. 61, 67,

197 N.E.2d 548 (1964).

       {¶59} We agree with appellee that the evidence established appellant was not

threatened by Hendricks and his role in the crimes went beyond passive participation. It

was in the province of the jury to assess the credibility of the witnesses, including

appellant, and to determine which part or parts of the testimony it found to be believable.

       {¶60} Appellant’s own trial testimony, if believed by the jury, established at

minimum he was complicit in the crimes he stands convicted of. Hendricks was infuriated

that his items had been stolen. Hendricks, an evidently volatile individual whom appellant

described as a known drug dealer, accused appellant of the theft. Appellant tried to

convince Hendricks he didn’t steal his stuff but only bought it from Mayle. Under those

circumstances, appellant brought Hendricks to Tameka’s house and walked him inside.

By appellant’s own admission, he yelled at Tameka when she wasn’t responding to

Hendricks’ demands fast enough and asked her whether she loved her kids, an implied

threat. Appellant admits it was his idea to take the victims’ I.D.s, a means of later

identifying any potential snitches. Appellant’s attempts to paint himself as a peacemaker

in this scenario are unavailing. Based upon the testimony presented, we cannot find that

the jury clearly lost its way.
Muskingum County, Case No. CT2015-0062
                                                                                        20

       {¶61} Despite some of the conflicts in the evidence, this is not the exceptional

case in which the evidence weighs heavily against the convictions, and therefore, the

convictions are not against the manifest weight of the evidence. We find the jury did not

lose its way and create such a manifest miscarriage of justice that the convictions must

be overturned and a new trial ordered.

       {¶62} Appellant’s second assignment of error is overruled.

                                               III.

       {¶63} In his third assignment of error, appellant argues the trial court should have

merged the aggravated burglary, aggravated robbery, and kidnapping convictions for

sentencing. We disagree.

       {¶64} 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. Carr, 5th Dist. Perry No.

15-CA-00007, 2016-Ohio-9, 57 N.E.3d 262, ¶ 42, citing State v. Brown, 119 Ohio St.3d

447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 42. R.C. 2941.25 states:

                    (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
Muskingum County, Case No. CT2015-0062
                                                                                          21

              contain counts for all such offenses, and the defendant may be

              convicted of all of them.

       {¶65} The trial court’s R.C. 2941.25 determination is subject to de novo review.

State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.

       {¶66} Appellant argues the counts of aggravated burglary, aggravated robbery,

and kidnapping should merge because they were committed with a single animus, at the

same time, and with the same conduct. The question of whether offenses merge for

sentencing depends upon the subjective facts of the case in addition to the elements of

the offenses charged. In a plurality opinion, the Ohio Supreme Court modified the test for

determining whether offenses are allied offenses of similar import. State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Court directed us to look at the

elements of the offenses in question and determine whether or not it is possible to commit

one offense and commit the other with the same conduct. Id. at ¶ 48. If the answer to

such question is in the affirmative, the court must then determine whether or not the

offenses were committed by the same conduct. Id. at ¶ 49. If the answer to the above two

questions is yes, then the offenses are allied offenses of similar import and will be merged.

Id. at ¶ 50. If, however, the court determines that commission of one offense will never

result in the commission of the other, or if there is a separate animus for each offense,

then the offenses will not merge. Id. at ¶ 51.

       {¶67} Johnson's rationale has recently been described by the Court as

“incomplete.” State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11.

The Court has recently spoken again on merger issues and instructs us to ask three

questions when a defendant's conduct supports multiple offenses: (1) were the offenses
Muskingum County, Case No. CT2015-0062
                                                                                       22

dissimilar in import or significance? (2) were they committed separately? and (3) were

they committed with separate animus or motivation? State v. Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892, ¶ 31. An affirmative answer to any of the above will permit

separate convictions. Id. The conduct, the animus, and the import must all be considered.

Id.

       {¶68} Appellant’s argument overlooks the separate offenses against multiple

victims. Appellant argues “the convictions for aggravated burglary, aggravated robbery,

and kidnapping should merge…” without reference to the convictions imposed for each

victim. When a defendant's conduct victimizes more than one person, the harm for each

person is separate and distinct, and therefore, the defendant can be convicted of multiple

counts. Ruff, supra, 2015-Ohio-995 at ¶ 26. The answer to the second Ruff question is

yes, and “we may end our analysis upon an affirmative response to any of the three [Ruff]

questions,” therefore we need not address whether appellant committed the offenses

separately or with separate animus. State v. Potts, 3rd Dist. Hancock No. 5-16-03, 2016-

Ohio-5555, __N.E.3d__, ¶ 98, citing State v. Bailey, 1st Dist. Hamilton No. C-140129,

2015-Ohio-2997, ¶ 83.

       {¶69} Appellant argues the crimes were committed with a single animus, though,

and we disagree. In State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979),

the Ohio Supreme Court defined “animus” as follows:

                    In this sense, we believe that the General Assembly intended

             the term “animus” to mean purpose or, more properly, immediate

             motive.
Muskingum County, Case No. CT2015-0062
                                                                                            23

                     Like all mental states, animus is often difficult to prove directly,

              but must be inferred from the surrounding circumstances. [Citations

              omitted.]

                     Where an individual's immediate motive involves the

              commission of one offense, but in the course of committing that crime

              he must, A priori, commit another, then he may well possess but a

              single animus, and in that event may be convicted of only one crime.

              For example, when a person commits the crime of robbery, he must,

              by the very nature of the crime, restrain the victim for a sufficient

              amount of time to complete the robbery. Under our statutes, he

              simultaneously     commits     the   offense    of    kidnapping     (R.C.

              2905.01(A)(2) by forcibly restraining the victim to facilitate the

              commission of a felony. In that instance, without more, there exists a

              single animus, and R.C. 2941.25 prohibits convictions for both

              offenses.

       {¶70} In this case, appellant and Hendricks entered the house, drew weapons,

and threatened Tameka to force her to reveal Mayle’s whereabouts and then to get Mayle

on the phone. In the meantime, appellant and Hendricks continued to forcibly detain the

other victims by tying them up. They contemplated bringing the victims with them as they

fled, but then decided to take their cell phones and I.D.s to ascertain their identities later

if necessary. We find that a separate animus existed for the crimes appellant contends

should have merged. See, State v. Brooks, 8th Dist. Cuyahoga No. 102551, 2016-Ohio-

489, 56 N.E.3d 357, ¶ 48, appeal not allowed, 146 Ohio St.3d 1428, 2016-Ohio-4606, 52
Muskingum County, Case No. CT2015-0062
                                                                                         24

N.E.3d 1204. This ordeal was prolonged enough for the threats against Tameka and the

others, the phone call to Mayle, the restraining of the victims, and collection of the cell

phones and I.D.s. If captivity is prolonged, or the movement of the victim is so substantial

that it becomes significantly independent of any other criminal act, there exists a separate

animus to support the kidnapping conviction. See State v. Houston, 1st Dist. Hamilton

No. C–130429, 2014-Ohio-3111, 2014 WL 3516596, ¶ 22. In such cases, the kidnapping

offense ceases to be incidental to the underlying felony from which it might have

originated. See, Id. at ¶ 23 and State v. Cotton, 8th Dist. Cuyahoga No. 102581, 2015-

Ohio-5419, 55 N.E.3d 573.

       {¶71} The record supports the rationale of the trial court in opting not to merge the

convictions:

                     THE COURT: * * * *. And with regard to the issue of merger,

               it---this---this is a different case than most kidnappings that are

               associated with aggravated robberies because typically the

               aggravated robbery leads to the kidnapping. The---the reason for

               the robbery is---or the reason for the kidnapping is to facilitate the

               robbery.

                     This case was different than that where the kidnapping was

               completely and totally separate, and then the robbery at least of the

               ID’s happened after the fact of the kidnapping almost as---as an

               afterthought.   The phones were---were prior to the kidnapping

               probably. Does that—is that the way I remember it?

                     [PROSECUTOR]: That’s correct, Your Honor.
Muskingum County, Case No. CT2015-0062
                                                                                    25

                  THE COURT: I think when they entered the house, they took

           the phones when someone was texting or starting to call.

                  So anyway, I don’t believe the kidnappings and the

           aggravated robberies merge based upon that.

                  And clearly, all seven kidnappings don’t merge with one

           another because they were all separately kidnapped. There wasn’t

           a group that was kidnapped. They were tied up separately. The---

           the children were—the juveniles were---there’s several juveniles. I

           guess the toddlers were separately detained as well as the mother.

           With regard to the three aggravated robberies, it’s---I find that they

           do not merge. There were three separate—the separate animus with

           kidnapping, the robbery, and the burglary are deemed not to merge.

           The weapon under disability merges with nothing.

                  The aggravated burglary is a little more concerning in the

           sense that what was the animus associated with the entry into the

           home. And I don’t think there were any intentions to kidnap or rob

           anyone when they entered the home, but there was an intention to

           at least either find [Mayle] or force [Tameka] to tell them where he

           was.

                  So seeing that there were weapons involved, the weapons

           were drawn, I’m---I find that the aggravated burglary does not merge

           with anything either. So I find that none of these counts merge.

                  * * * *.
Muskingum County, Case No. CT2015-0062
                                                                                       26

                    T. (Sentencing), 5-7.

       {¶72} Thus, the affirmative answers to the second and third Ruff questions allow

appellant to be separately convicted of each offense, and “the trial court did not commit

plain error—and did not err at all—in not merging the convictions.” See, Earley, supra,

2015-Ohio-4615 at ¶ 16.

       {¶73} Appellant’s third assignment of error is overruled.

                                               IV.

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

imposing consecutive sentences. We disagree.

       {¶75} The presumption in Ohio is that sentences are to run concurrently unless

the trial court makes the required findings for imposing consecutive sentence set forth in

R.C. 2929.14(C)(4). See, R.C. 2929.41(A).

       {¶76} R.C. 2929.14(C) states:

                    (4) If multiple prison terms are imposed on an offender for

             convictions of multiple offenses, the court may require the offender

             to serve the prison terms consecutively if the court finds that the

             consecutive service is necessary to protect the public from future

             crime or to punish the offender and that consecutive sentences are

             not disproportionate to the seriousness of the offender's conduct and

             to the danger the offender poses to the public, and if the court also

             finds any of the following:

                    (a) The offender committed the multiple offenses while the

             offender was awaiting trial or sentencing, was under a sanction
Muskingum County, Case No. CT2015-0062
                                                                                            27

              imposed pursuant to Section 2929.16, 2929.17 or 2929.18 of the

              Revised Code, or was under post-release control for a prior offense.

                     (b) The harm caused by the multiple offenses was so great or

              unusual that no single prison terms for any of the offenses committed

              as part of a single course of conduct adequately reflects' the

              seriousness of the offender's conduct.

                     (c) The offender's history of criminal conduct demonstrates

              that consecutive sentences are necessary to protect the public from

              future crime by the offender.

       {¶77} 2011 Am.Sub.H.B. No. 86, which became effective on September 30, 2011,

revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes now require a trial court to

make specific findings when imposing consecutive sentences.

       {¶78} The Ohio Supreme Court addressed the requirements for imposing

consecutive sentences in a comprehensive fashion, finding a trial court must make the

findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its

findings into its sentencing entry, although the trial court has no obligation to state reasons

to support its findings. State v. Starcher, 5th Dist. Stark No. 2015CA00058, 2015-Ohio-

5250, 2015 WL 9078463, ¶ 31, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, 16 N.E.3d 659, syllabus. The Court further explained “a word-for-word recitation of

the language of the statute is not required, and as long as the reviewing court can discern

that the trial court engaged in the correct analysis and can determine that the record
Muskingum County, Case No. CT2015-0062
                                                                                            28

contains evidence to support the findings, consecutive sentences should be upheld.” Id.

at ¶ 29.

       {¶79} R.C. 2929.14(C)(4) thus requires the court to find that (1) consecutive

sentences are necessary to protect the public from future crime or to punish the offender,

(2) consecutive sentences are not disproportionate to the seriousness of the offender's

conduct and to the danger the offender poses to the public, and (3) at least one of the

three findings set forth in R.C. 2929.14(C)(4)(a)-(c) applies.

       {¶80} In the instant case, the trial court noted appellant had multiple prior

convictions of violent offenses, including “at least four assaults,” and took no responsibility

for his role in the crimes here. Nor did he express remorse. The trial court referred to the

parties’ sentencing memoranda and the P.S.I. in finding consecutive sentences are

necessary to protect the public and to punish the offender; are not disproportionate to the

seriousness of the conduct and the danger appellant poses to the public; and are

necessary to protect the public from future crime due to appellant’s extensive criminal

history. T. (Sentencing), 39. Further, at least two of the crimes were committed as part

of two or more courses of conduct, and the harm caused by two or more of the multiple

offenses was so great or unusual that no single prison term for any of the offenses

committed as any part of the course of conduct adequately reflects the seriousness of

appellant’s conduct. Id., 40.

       {¶81} Further, the trial court referred to the P.S.I. repeatedly in sentencing

appellant but appellant did not include the P.S.I. in the record. See, State v. Hughes, 5th

Dist. Coshocton No. 15CA00008, 2016-Ohio-880, 60 N.E.3d 765, ¶ 35. In State v. Untied,

5th Dist. Muskingum No. CT97–0018, 1998 WL 401768, *8 (Mar. 5, 1998), we noted
Muskingum County, Case No. CT2015-0062
                                                                                        29

appellate review contemplates that the entire record be presented and if portions of the

transcript necessary to resolve issues are not included, we must presume regularity in

the trial court proceedings and affirm. The P.S.I. report could have been submitted “under

seal” for our review. Id. Absent the cited information and considering “the trial court's

findings on the record, we cannot say appellant's sentence was against the manifest

weight of the evidence or ‘contrary to law.’” State v. Henderson, 5th Dist. Stark No. 2004–

CA–00215, 2005-Ohio-1644, 2005 WL 774039, ¶ 48, citing State v. Wallace, 5th Dist.

Delaware No. 03–CA–A–07–043, 2004-Ohio-1694, 2004 WL 670684 and State v. Mills,

5th Dist. Ashland No. 03–COA–001, 2003-Ohio-5083, 2003 WL 22208740.

       {¶82} The trial court did not err in ordering appellant’s sentences to be served

consecutively. Appellant’s fourth assignment of error is overruled.

                                     CONCLUSION

       {¶83} Appellant’s four assignments of error are overruled and the judgment of the

Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Wise, J., concur.
