[Cite as State v. Cleland, 2011-Ohio-6786.]


STATE OF OHIO                     )                IN THE COURT OF APPEALS
                                  )ss:             NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                      C.A. No.   09CA0070-M

        Appellee

        v.                                         APPEAL FROM JUDGMENT
                                                   ENTERED IN THE
SHAUN CLELAND                                      COURT OF COMMON PLEAS
                                                   COUNTY OF MEDINA, OHIO
        Appellant                                  CASE No.   05CR0492

                                  DECISION AND JOURNAL ENTRY

Dated: December 30, 2011



        CARR, Judge.

        {¶1}     Appellant, Shaun Cleland, appeals his conviction and sentence in the

Medina County Court of Common Pleas. This Court affirms, in part, and reverses, in

part.

                                              I.

        {¶2}     When Christina Eichelberger got home from work just after midnight on

October 2, 2005, she found her roommate and boyfriend, David Heinricht, unconscious

with a noose around his neck and a typed suicide note in his hand. Ms. Eichelberger

asked a neighbor to call 911 and returned to her apartment, where she performed CPR on

Mr. Heinricht after cutting the noose. Despite her efforts, and the efforts of the first

responders, Mr. Heinricht could not be revived. Police investigators quickly concluded

that the scene had been staged and that Mr. Heinricht had been the victim of foul play.

Upon Ms. Eichelberger’s suggestion that Cleland, her estranged husband, might be
                                             2


involved, police arrested him at Cleveland Hopkins International Airport. Cleland soon

confessed that he strangled Mr. Heinricht.

       {¶3}    Cleland was indicted on one count of aggravated murder in violation of

R.C. 2903.01(A); two counts of aggravated murder in violation of R.C. 2903.01(B); one

count of murder in violation of 2903.02(A); two counts of murder in violation of R.C.

2903.02(B); one count of aggravated burglary in violation of R.C. 2911.11(A)(1); and

one count of kidnapping in violation of R.C. 2905.01(A)(3). Before trial, Cleland moved

to suppress the statements that he made to police, arguing that under the circumstances of

this case, a single Miranda warning was not sufficient. The trial court denied the motion

to suppress, and the matter proceeded to a jury trial. The jury found Cleland guilty on all

of the charges. The trial court merged counts one through five for purposes of sentencing

and sentenced Cleland to life imprisonment with the possibility of parole after thirty

years on count one. The trial court also sentenced him to concurrent five-year sentences

for the convictions of aggravated burglary and kidnapping, but ordered the five-year

prison term to be served consecutively with the term imposed for count one. Cleland

timely appealed, raising five assignments of error which this Court has rearranged to

facilitate disposition.

                                             II.

                              ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’S MOTION
       TO SUPPRESS, WHERE THE POLICE FAILED TO RE-ADVISE HIM OF HIS
       MIRANDA RIGHTS PRIOR TO RESUMPTION OF THE CUSTODIAL
       INTERROGATION AND WHERE THE ALLEGED WAIVER OF THOSE
       MIRANDA RIGHTS AND THE ALLEGED CONFESSION WAS
                                              3


       INVOLUNTARY,    IN VIOLATION OF THE DEFENDANT’S
       CONSTITUTIONAL RIGHTS UNDER THE U.S. AND OHIO
       CONSTITUTIONS.”

       {¶4}   Cleland’s first assignment of error is that the trial court should have

suppressed the statements that he made to police officers after his first interview because

his statements were not voluntarily made and because the investigating officer did not

provide Miranda warnings before interviewing him again. We disagree.

       {¶5}   Because our review of a motion to suppress involves issues of law and fact,

this Court accepts a trial court’s findings of fact if supported by competent, credible

evidence, but reviews the trial court’s legal conclusions de novo. See State v. Burnside,

100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8.             Whether a confession is obtained

voluntarily is determined by a two-part analysis.           Because the key element in

constitutional violations is state action, the first consideration is whether the police used

inherently coercive tactics in the course of the interview. See Colorado v. Connelly

(1986), 479 U.S. 157, 166. In other words, “coercive police activity is a necessary

predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due

Process Clause of the Fourteenth Amendment.” Connelly, 479 U.S. at 167.

       {¶6}   If there is evidence that police used inherently coercive interrogation

tactics, courts evaluate the totality of the circumstances surrounding the interrogation to

determine whether the defendant confessed voluntarily. State v. Treesh (2001), 90 Ohio

St.3d 460, 472. “Evidence of use by the interrogators of an inherently coercive tactic

(e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger

the totality of the circumstances analysis. Accordingly, we need not assess the totality of
                                             4


the circumstances unless we find that the tactics used by the detectives were coercive.”

(Internal citations omitted.) Id., citing State v. Clark (1988), 38 Ohio St.3d 252, 261.

       {¶7}   We note that our review of the trial court decision regarding Cleland’s

motion to suppress does not encompass the evidence that was adduced at trial after the

fact. Consequently, to the extent that Cleland’s arguments refer to evidence in the trial

record, those arguments are not well taken.         With respect to the voluntariness of

Cleland’s statements, the trial court concluded that “[a]t no time during these interactions

with police officers was Cleland threatened, or deprived of food, drink, or use of

restroom facilities.” This finding is supported by clear and convincing evidence in the

record, which contains no indication that inherently coercive tactics were used in the

course of Cleland’s interrogation. In the absence of such tactics, we need not evaluate

the totality of the circumstances with respect to Cleland’s state of mind. See Treesh, 90

Ohio St.3d at 472.

       {¶8}   Cleland has also argued that his statements during the second interrogation

on the morning of October 2nd should be suppressed because the Miranda warnings

administered before the first interrogation had grown stale at that point. When a suspect

is given adequate Miranda warnings before a custodial interrogation, further warnings are

not required before additional interrogation occurs. Id. at 470, citing Wyrick v. Fields

(1982), 459 U.S. 42, 48-49, and State v. Barnes (1986), 25 Ohio St.3d 203, 208. “Police

are not required to re-administer the Miranda warnings when a relatively short period of

time has elapsed since the initial warnings.         Courts look to the totality of the

circumstances when deciding whether initial warnings remain effective for subsequent
                                             5


interrogations.” (Internal citations omitted.) Treesh at 470. In applying this test, courts

consider the length of time between the Miranda warning and later interrogations;

whether the suspect was interrogated in a different location or by different police officers;

the extent to which the suspect’s statements differ between interrogations; and the

suspect’s intellectual and emotional state. State v. Roberts (1987), 32 Ohio St.3d 225,

232, citing State v. McZorn (1975), 288 N.C. 417, 434. “Miranda warnings are sufficient

if they are read within a sufficiently proximate time and place to the interrogation to

insure that the suspect is protected from coercive pressures.” State v. Snow (May 24,

2000), 9th Dist. No. 19742, citing Roberts at 232.

       {¶9}   As the trial court found, Detective Dean Weinhardt orally informed Cleland

of his Miranda rights at the beginning of his first interview and, at approximately 6:00

a.m., Cleland executed a waiver of rights form that contained the same information in

written form. At 6:48 a.m., Cleland executed another acknowledgement of his Miranda

rights contained on the form onto which he reduced a confession to writing. Detective

Weinhardt interviewed Cleland again at 9:12 a.m. He did not re-Mirandize Cleland then,

but did ask whether he still understood his rights as they were explained earlier. The

record from the suppression hearing differs from the trial court’s findings of fact on this

sequence of events.     Specifically, the trial court incorrectly concluded that Cleland

executed a written waiver of his Miranda rights and completed a written statement at the

conclusion of the second interview. The record actually indicates that Cleland provided a

written statement that contained a waiver of his Miranda rights at the conclusion of the
                                            6


first interview, followed by a second interview that was not prefaced by a complete

statement of his rights.

       {¶10} Nonetheless, it was not error for the trial court to deny the motion to

suppress.   The second interview was conducted in the same location by the same

investigating officer only two and one-half hours later.         According to Detective

Weinhardt’s testimony, Cleland never asked for food or drink or complained about lack

of sleep. Although Detective Weinhardt learned during the first interview that Cleland

had consumed alcohol the previous evening, Cleland did not appear to be intoxicated or

hampered in his ability to communicate. Some details of the second interview differ

from the written statement that Cleland provided after the first, but the substance of his

confession was materially consistent. Our consideration of the Roberts factors, therefore,

leads to the conclusion that the initial Miranda warnings had not grown stale before the

second interview.

       {¶11} Cleland’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR II

       “THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE
       PREJUDICE OF DEFENDANT BY EXCLUDING, ON GROUNDS OF
       RELEVANCE, EVIDENCE AND TESTIMONY FAVORABLE AND
       POTENTIALLY EXCULPATORY TO THE DEFENDANT CONCERNING
       THE VICTIM’S PENDING FELONY DRUG CASE AND THE MYSTERIOUS
       VEHICLES SEEN IN THE VICINITY OF THE HOMES OF DEFENDANT’S
       SISTER AND MOTHER AT THE TIME OF THE HOMICIDE OFFENSE,
       WHICH EVIDENCE SUPPORTED DEFENDANT’S POSITION THAT
       ANOTHER UNIDENTIFIED MAN, WHO HAD THREATENED TO HARM
       HIS YOUNG NIECE IF DEFENDANT DID NOT TAKE BLAME FOR THE
       OFFENSE, ACTUALLY KILLED THE VICTM.”
                                            7


      {¶12} Cleland’s second assignment of error is that the trial court abused its

discretion by determining that evidence offered by the defense was irrelevant and

excluding it under Evid.R. 401 and 402. The trial court, however, did not exclude any

evidence under Evid.R. 401 and 402, and so there is no error apparent from the record.

      {¶13} According to Cleland, the trial court should have admitted police reports by

his mother and sister about suspicious automobiles that were made soon after Mr.

Heinricht’s death. He maintains that this evidence was relevant to his own theory of the

case, which is that an unidentified masked man actually killed Mr. Heinricht and

threatened his own family if he did not confess. As far as can be determined from the

record, however, no such police reports exist. It appears instead that Cleland has in mind

police reports about suspicious vehicles that were made not by his family, but by Ms.

Eichelberger and Mr. Heinricht’s mother, Gloria Clancy. To the extent that he challenges

the trial court’s determination that this evidence was inadmissible, we note that the trial

court’s determination was actually that the content of the reports in the context of

Detective Weinhardt’s testimony would be hearsay, and we note that neither the State nor

Cleland inquired about the reports when Ms. Eichelberger testified.

      {¶14} Cleland has also argued that the trial court erred by excluding evidence of

Mr. Heinricht’s own criminal background. Again, however, the trial court did not do so.

The record indicates that Cleland’s attorney asked the coworker of Mr. Heinricht who

drove him home on the night he died whether she was aware that Mr. Heinricht had

“issues.” At sidebar, Cleland’s attorney explained that he meant whether she knew that

he was living with a married woman. Nonetheless, the witness answered the question in
                                            8


the negative; the State withdrew its objection; and the testimony moved forward without

further elaboration and without a ruling from the Court.

      {¶15} This Court has engaged in an exhaustive review of the voluminous trial

record in this case and, simply put, the record does not substantiate the basis for

Cleland’s second assignment of error. As he has not argued any other trial court error

with respect to the admission or exclusion of evidence, we decline to “create argument

where none is made.” Deutsche Bank Natl. Trust Co. v. Taylor, 9th Dist. No. 25281,

2011-Ohio-435, at ¶7, citing Cardone v. Cardone (May 6, 1998), 9th Dist. No. 18349.

Cleland’s second assignment of error is overruled.

                             ASSIGNMENT OF ERROR IV

      “THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
      SUPPORT THE GUILTY VERDICTS AS TO ALL SEVEN COUNTS OF THE
      INDICTMENT, AND DEFENDANT’S CONVICTIONS FOR AGGRAVATED
      MURDER, AGGRAVATED BURGLARY, AND KIDNAPPING WERE
      AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

      {¶16} Cleland’s fourth assignment of error is that there is insufficient evidence

supporting his convictions and that his convictions are against the manifest weight of the

evidence. Specifically, with respect to each of his convictions, Cleland has argued that

there is insufficient evidence that he was the perpetrator. He has also argued that the

manifest weight of the evidence demonstrates that someone else killed David Heinricht.

We disagree.

      {¶17} “Whether a conviction is supported by sufficient evidence is a question of

law that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–

Ohio–6955, at ¶18, citing State v. Thompkins (1997), 78 Ohio St.3d 380, 386. The
                                            9


relevant inquiry is whether the prosecution has met its burden of production by

presenting sufficient evidence to sustain a conviction. Thompkins, 78 Ohio St.3d at 390

(Cook, J., concurring). In reviewing the evidence, we do not evaluate credibility, and we

make all reasonable inferences in favor of the State. State v. Jenks (1991), 61 Ohio St.3d

259, 273. The State’s evidence is sufficient if it allows the trier of fact to reasonably

conclude that the essential elements of the crime were proven beyond a reasonable doubt.

Id.

      {¶18} The identity of a perpetrator must be proved by the State beyond a

reasonable doubt. State v. Flynn, 9th Dist. No. 06CA0096-M, 2007-Ohio-6210, at ¶12.

As with any other element, identity may be proved by direct or circumstantial evidence,

which do not differ with respect to probative value. State v. Gibson, 9th Dist. No. 23881,

2008-Ohio-410, at ¶8.

      {¶19} According to the testimony at trial, Cleland pursued reconciliation with Ms.

Eichelberger persistently in the weeks before Mr. Heinricht’s murder. She resisted his

attempts. After he asked whether she was intimate with Mr. Heinricht and she responded

in the affirmative, Cleland replied, “[t]hat’s all I needed to know.” Mr. Heinricht’s

employer received an anonymous call inquiring where Mr. Heinricht lived, and a male

caller contacted the leasing office at Clearbrooke Apartments to find out who else was on

Ms. Eichelberger’s lease. Cleland booked a last-minute trip to Ohio, leaving him AWOL

from his military base in Hawaii. Once in Ohio, Cleland found that he did not have a

rental car reservation. According to the employee of Alamo Rental Car who dealt with

Cleland that morning, his behavior was volatile. After he arrived in Ohio, Cleland
                                            10


contacted Ms. Eichelberger, but left her with the impression that he was calling from

Hawaii instead. He also purchased an air gun, BBs, a hunting knife, binoculars, and

cigarettes.

       {¶20} Cleland went to the apartment Ms. Eichelberger shared with Mr. Heinricht,

leading Mr. Heinricht to contact the police. As Cleland admitted, he provided his own

driver’s license to the police officer who responded, but lied about his relationship to Ms.

Eichelberger. When he left the apartment complex, Cleland drove to the bar where Ms.

Eichelberger worked as a bartender. According to her testimony, Cleland told her that he

had come to Ohio to convince her to return to Hawaii with him and was adamant that she

would do so. Ms. Eichelberger testified that during their conversation, he asked whether

she would reconcile with him if Mr. Heinricht were to “disappear.” Over the course of

several hours, Cleland drank beer and Ms. Eichelberger engaged him in conversation

because she wanted to keep track of his whereabouts.

       {¶21} Ms. Eichelberger testified that Cleland left the bar around 8:10 p.m. Mr.

Heinricht was also working that evening.         Tamara Simak, who worked with Mr.

Heinricht at Starbucks, testified that he worked from 6:00 p.m. until 11:30 p.m. that

evening.      Although Mr. Heinricht ordinarily walked to and from work, Ms. Simak

recalled that he asked her for a ride home that night “because he didn’t want to get

jumped.” Ms. Simak dropped him off at 11:45 p.m. She is the last person who saw Mr.

Heinricht alive.

       {¶22} Ms. Eichelberger returned home from work shortly after 12:30 a.m. on

October 2nd to a darkened apartment. She found Mr. Heinricht on the futon adjacent to
                                             11


the pass-through wall between the living room and kitchen areas in the apartment. He

was unconscious, with a noose around his neck attached to a rope that led to the kitchen.

Ms. Eichelberger cut the rope, asked a neighbor to call 911, and attempted to resuscitate

Mr. Heinricht. According to the testimony of the officers who soon arrived at the scene,

Ms. Eichelberger was hysterical to the point of physical distress. She told the officers

that she believed Cleland was responsible and that he would be boarding a plane for

Hawaii first thing that morning.      The officers also testified that Ms. Eichelberger

recognized the knot in the noose as “military” in nature. Residents of a neighboring

apartment building testified that they saw a male of Cleland’s build walking along the

rooftop of Ms. Eichelberger’s building shortly before midnight on the night of Mr.

Heinricht’s death.

       {¶23} In the meantime, Cleland purchased gas for his rental car at 12:14 a.m. and

drove to Cleveland Hopkins International Airport, where he sat in the waiting area and

passed the time by sending flirtatious text messages to his girlfriend, Jessica Guzetti,

which she agreed were like as “playing back and forth.” Around 3:00 a.m., Cleveland

police officers found Cleland sleeping in the waiting area. Officer Daniel Hayes testified

that when they arrested Cleland, he was “very [] quiet, just calm.” Over the course of

three interviews with the Brunswick police department, Cleland confessed that he had

typed the fake suicide note in Hawaii as an attempt to scare Mr. Heinricht and that he

broke into Mr. Heinricht and Ms. Eichelberger’s apartment, choked Mr. Heinricht, and

staged the scene to look like a suicide attempt.
                                               12


       {¶24} With this evidence in mind, a reasonable trier of fact could conclude

beyond a reasonable doubt that Cleland was the perpetrator, and his convictions are not

based on insufficient evidence.

       {¶25} When considering whether a conviction is against the manifest weight of

the evidence, this Court applies a different standard. We must:

       “review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact clearly lost its way and created such a manifest
       miscarriage of justice that the conviction must be reversed and a new trial
       ordered.” State v. Otten (1986), 33 Ohio App.3d 339, 340.

Cleland’s arguments regarding the weight of the evidence concern the lack of physical

evidence corroborating his confession and the reliability of the confessions themselves

and his own contradictory testimony at trial to the effect that an unknown person

committed the crime, forcing him to watch and, ultimately, to confess falsely.

       {¶26} As an initial matter, this Court must emphasize that our consideration of the

weight of the evidence is by necessity limited to the trial court record. Consequently,

although Cleland’s appellate brief emphasizes many facts related to Mr. Heinricht’s

alleged criminal history which, according to him, cast doubt on the identity of the killer,

those facts were not in evidence in the trial court, despite citations to the record that make

it appear that they were. These statements must be disregarded in our analysis.

       {¶27} According to Cleland’s testimony at trial, a masked man was lying in wait

for him in his rental car when he left the bar where Ms. Eichelberger worked. Although

Cleland stated that the unidentified man always wore a mask, he was also able to describe

him at trial. Cleland testified that the stranger forced him to drive to Hinckley Lake,
                                            13


where he removed him from the car, secured his wrists behind his head with tape, and

threatened his young niece if Cleland refused to cooperate with him by telling the police

what he was told to say. The masked man then drove him back to Brunswick, parked in

an adjacent apartment complex, and walked with Cleland to Mr. Heinricht’s apartment

building. Despite testimony that no tape residue was found on Cleland’s clothing and that

Detective Weinhardt did not observe any areas on his wrists where tape may have

removed hair, Cleland testified that once they were inside the apartment, the man taped

his wrists and ankles, and they waited for Mr. Heinricht. When he returned home from

work, the stranger choked him, staged the suicide scene, and told Cleland to take the

blame.

         {¶28} Cleland maintains that the physical evidence collected by police supports

his version of events, but this argument mischaracterizes the testimony at trial regarding

that evidence. For example, Cleland has argued that the signature on the typewritten

suicide note could not be linked to him and that police erred by failing to submit any

other exemplars for comparison. In actual fact, Andrew Szymanski, who conducted the

handwriting analysis, testified that the single handwritten word on the suicide note was an

insufficient sample for comparison under any circumstances, and that it would not have

mattered if other exemplars had been submitted for comparison. Similarly, testimony

about the absence of fingerprints that could be identified as Cleland’s occurred in the

context of testimony from police officers that few fingerprints at the scene were of a

quality that could be submitted for analysis. Finally, although the State’s DNA expert

could not testify to a reasonable degree of scientific certainty that Cleland’s DNA was on
                                            14


the rope found around Mr. Heinricht’s neck, she did testify that a mixture of DNA was

found on the rope and that there was a statistical probability that elements of the DNA

profile were consistent with Cleland, Ms. Eichelberger, and Mr. Heinricht.

       {¶29} Our thorough review of the record leads to the conclusion that this is not

the exceptional case in which the evidence weighs heavily in favor of Cleland. Instead,

the weight of the evidence supports the conclusion that Cleland committed the crimes in

this case rather than an unidentified individual. Cleland’s convictions are not against the

manifest weight of the evidence.

       {¶30} Cleland’s fourth assignment of error is overruled.

                             ASSIGNMENT OF ERROR III

       “PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT AT
       TRIAL DENIED APPELLANT SHAUN M. CLELAND A FAIR TRIAL, AS
       GUARANTEED UNDER THE DUE PROCESS CLAUSE OF THE
       FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
       AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHERE
       THE PROSECUTOR ACCUSED APPELLANT’S TRIAL COUNSEL OF
       LYING TO THE JURY.”

       {¶31} Cleland’s third assignment of error is that the State’s remarks at the

beginning of closing argument disparaged trial counsel in such a way that the jury was

predisposed against Cleland and that, consequently, they denied him a fair trial. We

disagree.

       {¶32} When a defendant alleges that remarks by the prosecutor during closing

argument denied him a fair trial, we consider “whether the remarks were improper and, if

so, whether they prejudicially affected substantial rights of the defendant.” State v. Smith

(1984), 14 Ohio St.3d 13, 14, citing United States v. Dorr (C.A. 5, 1981), 636 F.2d 117.
                                               15


In so doing, we are mindful that while some latitude is afforded to the State in closing

arguments,

       “[a] prosecutor is at liberty to prosecute with earnestness and vigor, striking hard
       blows, but may not strike foul ones. * * * The prosecutor is a servant of the law
       whose interest in a prosecution is not merely to emerge victorious but to see that
       justice shall be done. It is a prosecutor’s duty in closing arguments to avoid
       efforts to obtain a conviction by going beyond the evidence which is before the
       jury.” (Internal citations omitted.) Smith, 14 Ohio St.3d at 14.

Allegedly improper comments by the prosecutor are considered in the context of the whole trial,

and “[a]n improper comment does not affect a substantial right of the accused if it is clear

beyond a reasonable doubt that the jury would have found the defendant guilty even without the

improper comments.” Treesh, 90 Ohio St.3d at 464, citing Smith at 15.

       {¶33} In this case, Cleland points to a single instance of alleged misconduct by

the prosecutor. Because the prosecutor’s statements followed close on the heels of a

statement by Cleland’s own attorney, it is important to consider them together.

       “[BY DEFENSE COUNSEL:]              Reasonable doubt. I believe you people will
       be able to do and come back with a verdict consistent with the evidence as you’ve
       determined in this case.

       “As the prosecutor argues to you, I want you to think about some of the things
       that I brought up and see whether or not he can answer those questions because
       those questions must be answered by the State of Ohio because if you have doubt
       then by law, then by law you must vote not guilty.”

       “***

       “[BY THE STATE:] Folks, what [defense counsel] just said is clearly wrong.
       It’s not if you have doubt. That’s not the law and you’ll hear from Judge Kimbler
       in a few minutes it’s if you have a reasonable doubt, a doubt based on reason and
       common sense. So you should ask yourself * * * why did you just tell us
       something that’s wrong? * * * [H]ow can you stand in this court and say these
       things with a straight face[?]
                                             16


The prosecutor, therefore, did go beyond responding to defense counsel’s statement to implying

dishonesty on his part. When a prosecutor accuses defense counsel of lying during closing

arguments, it is misconduct. State v. Sanders (2001), 92 Ohio St.3d 245, 270, citing State v.

Keenan (1993), 66 Ohio St.3d 402, 405-406.

       {¶34} Although a strong curative instruction can mitigate the prejudicial effect of

the misconduct, Sanders at 270, no curative instruction was given in this case, and we

note that the trial record is confusing at this point. Defense counsel objected to the

prosecutor’s statement and a sidebar was had on the record. As the two lawyers argued

among themselves, the transcript reflects that the prosecuting attorney said, “You know

what, withdrawn. * * * Let him say what he wants to say.” In the presence of the jury,

the prosecutor then said, “All right, the objection’s withdrawn, Your Honor” and

continued his closing argument. Taking the transcript at face value, it appears that the

prosecutor withdrew the statement to which Cleland had objected and Cleland offered no

other objection. Neither, however, did the trial court instruct the jury to disregard the

prosecutor’s statement or offer any other instruction on the subject.

       {¶35} Nonetheless, when viewed in the context of the entire trial, the prosecutor’s

single statement did not cause substantial prejudice to Cleland because it is clear beyond

a reasonable doubt that the jury would have found Cleland guilty regardless. See Treesh,

90 Ohio St.3d at 464. Cleland’s third assignment of error is overruled.
                                             17


                              ASSIGNMENT OF ERROR V

       “THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES
       FOR DEFENDANT’S KIDNAPPING AND AGGRAVATED BURGLARY
       CONVICTIONS ON THE ONE HAND, AND THE AGGRAVATED MURDER
       CONVICTION [ON] THE OTHER HAND, WHERE THOSE KIDNAPPING
       AND AGGRAVATED BURGLARY OFFENSES WERE ALLIED OFFENSES
       OF SIMILAR IMPORT TO THE FIVE ALTERNATIVELY-CHARGED
       AGGRAVATED MURDER AND MURDER OFFENSES WHICH MERGED
       FOR PURPOSES OF SENTENCING PURSUANT TO R.C. 2941.25.”


       {¶36} Cleland’s final assignment of error is that the trial court erred by sentencing

him for allied offenses of similar import. Specifically, he maintains that his convictions

for kidnapping and aggravated burglary should have merged into the remaining

conviction for purposes of sentencing.

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

Supreme Court held 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. Since then, this Court has consistently remanded cases for

further proceedings in the trial court to apply Johnson for the first time. In light of our

precedent, it is therefore appropriate to remand this case so that the trial court can apply

Johnson in the first instance. Cleland’s third assignment of error is sustained.

                                            III.

       {¶38} Cleland’s first, second, third, and fourth assignments of error are overruled.

His fifth assignment of error is sustained. This matter is affirmed, in part, and reversed,

in part, and is remanded to the trial court for consideration of whether Cleland’s

convictions should merge for purposes of sentencing under Johnson.
                                                18


                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     DONNA J. CARR
                                                     FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR


APPEARANCES:

FRANK C. GASPER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.
