[Cite as State v. Russell, 2019-Ohio-692.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   JUDGES:
                                                 Hon. William B. Hoffman, P.J
         Plaintiff – Appellee                    Hon. Patricia A. Delaney, J.
                                                 Hon. Craig R. Baldwin, J.
 -vs-
                                                 Case No. 18-COA-021
 RODNEY W. RUSSELL

        Defendant – Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                       Appeal from the Ashland County Court of
                                                 Common Pleas, Case No. 16-CRI-112



 JUDGMENT:                                       Affirmed

 DATE OF JUDGMENT ENTRY:                         February 25, 2019


 APPEARANCES:


 For Plaintiff-Appellee                          For Defendant-Appellant

 CHRISTOPHER R. TUNNELL                          BRIAN A. SMITH
 VICTOR R. PEREZ                                 Brian A. Smith Law Firm, LLC
 COLE F. OBERLI                                  755 White Pond Drive, Suite 403
 Ashland County Prosecutor’s Office              Akron, Ohio 44320
 110 Cottage Street, 3rd Floor
 Ashland, Ohio 44805
Ashland County, Case No. 18-COA-021                                                        2

Hoffman, P.J.
       {¶1}   Appellant Rodney Russell appeals the judgment entered by the Ashland

County Common Pleas Court convicting him of three counts of rape (R.C. 2907.02(A)(2)),

two counts unlawful sexual conduct with a minor (R.C. 2907.04(A)), kidnapping (R.C.

2905.01(A)(4)), abduction (R.C. 2905.02(A)(2)), and burglary (R.C. 2911.12(A)(3)), and

sentencing him to an aggregate prison term of forty years. Appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On May 27, 2016, J.G., a thirteen-year-old girl, was spending the day at the

home of a family friend, known as “Boonie.” J.G. spent the day with Boonie’s sons, G.S.

and B.S. Other people were in the house, including Appellant.

       {¶3}   Boonie left the house in the evening to purchase marijuana. Appellant

previously told Boonie he was leaving and his mother had come to pick him up. However,

Appellant came back in the house after Boonie left. Appellant walked into the room where

J.G. was staying, and tried to grab her foot. When J.G. attempted to use her cell phone,

Appellant threw the phone into a fish tank. J.G. ran downstairs. Appellant threatened the

lives of J.G., G.S., and B.S., and the lives of their families. He ordered all three children

into a closet, and destroyed B.S.’s phone before he could call 911.

       {¶4}   Appellant grabbed J.G. and told her to get in the bathroom. She told him

no. Appellant picked J.G. up, threw her against a wall, choked her, and threatened to kill

her if she didn’t listen to him. She continued to fight, throwing a hair spray bottle at him.

He picked her up and started choking her again. He told J.G. to take off her clothes.

Initially she resisted, but eventually complied as his threats continued. Appellant removed

J.G.’s pants and underwear, and put his tongue in her vagina. He put his penis in J.G.’s
Ashland County, Case No. 18-COA-021                                                         3


mouth, and then placed his finger in her vagina. Appellant then bent J.G. over the tub

and turned on the water so no one could hear.

        {¶5}   At this point, Boonie returned to the home. Appellant fled the house. J.G.

wrapped herself in a towel and ran to Boonie, screaming Appellant had raped her. B.S.

and G.S. came out of the closet, shocked, hysterical, and scared to death. Boonie

immediately called 911.

        {¶6}   In the early morning hours of May 28, 2016, the alarm at a home at 1289

County Road 1356, near Boonie’s home, was triggered.              Ashland County Sheriff’s

Deputies Randy Wood and Randy Welch responded, along with Deputy Welch’s K-9

partner, Eto. They discovered the basement door of the home had been kicked in and

the alarm pad in the kitchen was ripped off the wall. Eto was sent into the attic during the

search, and began barking. The deputies heard someone yelling to call off the dog. Upon

entering the attic, they found Appellant hiding under a pile of items, with his leg in the

dog’s mouth.

        {¶7}   Appellant was indicted by the Ashland County Grand Jury with four counts

of rape, three counts of unlawful sexual conduct with a minor, kidnapping, abduction,

burglary, and two counts criminal damaging or endangering. Appellant pled Not Guilty

By Reason of Insanity (NGRI), and asked for a competency evaluation. On September

19, 2016, Appellant was found incompetent to stand trial and committed to Heartland

Behavioral Healthcare. Appellant was found restored to competency on November 29,

2016.

        {¶8}   The matter proceeded to jury trial on August 22, 2017. Just prior to trial, the

court denied Appellant’s NGRI plea based on lack of evidence, as Appellant refused to
Ashland County, Case No. 18-COA-021                                                      4


participate in an evaluation for purposes of the plea and for a redetermination of

competency. Following trial the jury found Appellant guilty of three of the four counts of

rape, two of the three counts of unlawful sexual conduct with a minor, abduction,

kidnapping, and burglary. The trial court merged the two counts of unlawful sexual

conduct with a minor with two of the counts of rape. Appellant was sentenced to an

aggregate prison term of forty years. It is from the October 2, 2017 judgment of conviction

and sentence Appellant prosecutes his appeal, assigning as error:




             I. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE

      PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO

      THE UNITED STATE CONSTITUTION, AND ARTICLE I OF THE OHIO

      CONSTITUTION, IN FINDING APPELLANT COMPETENT TO STAND

      TRIAL WITHOUT CONDUCTING AN EVIDENTIARY HEARING.

             II. THE FAILURE OF APPELLANT’S COUNSEL TO REQUEST AN

      EVIDENTIARY HEARING ON APPELLANT’S COMPETENCY TO STAND

      TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

             III.   APPELLANT’S      CONVICTIONS        WERE      AGAINST      THE

      MANIFEST WEIGHT OF THE EVIDENCE.

             IV. APPELLANT’S SENTENCE WAS CONTRARY TO LAW DUE

      TO THE KIDNAPPING AND RAPE COUNTS BEING ALLIED OFFENSES

      OF SIMILAR IMPORT, BUT NOT BEING MERGED FOR PURPOSES OF

      SENTENCING.
Ashland County, Case No. 18-COA-021                                                        5


                                                I.

      {¶9}   In his first assignment of error, Appellant argues the court erred in failing to

conduct an evidentiary hearing on his competence to stand trial.

      {¶10} R.C. 2945.37(B) provides:



             In a criminal action in a court of common pleas, a county court, or a

      municipal court, the court, prosecutor, or defense may raise the issue of the

      defendant's competence to stand trial. If the issue is raised before the trial

      has commenced, the court shall hold a hearing on the issue as provided in

      this section. If the issue is raised after the trial has commenced, the court

      shall hold a hearing on the issue only for good cause shown or on the court's

      own motion.



      {¶11} The standard for competence is set forth in R.C. 2945.37(G):




             A defendant is presumed to be competent to stand trial. If, after a

      hearing, the court finds by a preponderance of the evidence that, because

      of the defendant's present mental condition, the defendant is incapable of

      understanding the nature and objective of the proceedings against the

      defendant or of assisting in the defendant's defense, the court shall find the

      defendant incompetent to stand trial and shall enter an order authorized by

      section 2945.38 of the Revised Code.
Ashland County, Case No. 18-COA-021                                                          6


       {¶12} If the issue of competence is raised prior to trial, it is mandatory for the court

to hold a hearing on the issue. State v. Were, 94 Ohio St.3d 173, 761 N.E.2d 591, 2002–

Ohio–481. The determination whether to conduct a mid-trial competency hearing is

normally a matter committed to the sound discretion of the trial court. State v. Berry, 72

Ohio St.3d 354, 1995-Ohio-310, 650 N.E.2d 433, citing State v. Rahman, 23 Ohio St.3d

146, 156, 23 OBR 315, 323, 492 N.E.2d 401, 410 (1986).

       {¶13} Appellant filed a plea of not guilty by reason of insanity prior to trial, also

raising his competence to stand trial. Appellant argues the court failed to conduct an

evidentiary hearing on competence at this time. While we do not have a transcript of the

initial competency hearing, the judgment of the court filed September 19, 2016, provides

in pertinent part as follows:



              This matter came before the Court for consideration of the

       Defendant’s psychological evaluation to determine his competency to stand

       trial. Present for the hearing were Assistant Ashland County Prosecuting

       Attorney Christopher Ballard, the Defendant, and Attorney for Defendant,

       R. Rolf Whitney. The hearing was conducted by video with a full and

       complete record being made, and the Defendant participated from the

       Ashland County jail.

              The Court proceeded with a hearing on the issue of Defendant’s

       incompetency, and all parties stipulated to the admission of the Forensic

       Diagnostic Center Psychological Evaluation dated August 29, 2016

       pursuant to R.C. 294.37 [sic]. No other evidence was offered by the parties.
Ashland County, Case No. 18-COA-021                                                     7


      Based upon the evidence before the Court, as well as the recommendations

      of Dr. Brian O’Reilly of the Forensic Center, the Court finds that the

      Defendant, Rodney W. Russell is incompetent to stand trial, and there is a

      substantial probability that the Defendant will become competent to stand

      trial within one year if the Defendant is provided with a course of treatment.



      {¶14} The record therefore does not support Appellant’s claim the court failed to

hold a hearing on the issue of competency.

      {¶15} A restoration to competency hearing was held on November 29, 2016, at

which the parties stipulated to the restoration to competency report, filed under seal

December 2, 2016.

      {¶16} On April 17, 2017, the court held a hearing on Appellant’s plea of not guilty

by reason of insanity.   Appellant was represented by new counsel at this hearing.

Counsel expressed concerns Appellant had fallen back to incompetency and requested

a new competency evaluation. Counsel told the court Appellant would not meet with him,

and would not cooperate with the NGRI evaluation. Appellant adamantly asserted his

own competence at the hearing in a profanity-laced diatribe to the court, insisting, “I am

very fucking competent.” 4/17/17 Tr. 12-13.

      {¶17} After Appellant was dismissed from the hearing, the court expressed

concerns about Appellant’s competence. The court represented he was inclined to send

Appellant back to Heartland or have an independent examiner sent to the jail, as the court

needed information.
Ashland County, Case No. 18-COA-021                                                        8


           {¶18} On April 21, 2017, the court ordered Appelant admitted to Heartland

Behavioral Healthcare for an assessment for both NGRI and competency. A warrant for

his removal to Heartland was filed April 25, 2017. Counsel for Appellant filed a second

motion for a competency evaluation on May 5, 2017.

           {¶19} A judgment filed May 17, 2017, reflects the court held a NGRI and

competency hearing on May 15, 2017. Appellant had been evaluated at Heartland by Dr.

Noffsinger1.        The State stipulated to the report, but Appellant did not stipulate and

requested an evidentiary hearing. The Court advised Appellant he was responsible for

issuing subpoenas for any necessary witnesses for said hearing, and scheduled the

motion for competency and NGRI for evidentiary hearing on May 30, 2017.

           {¶20} On June 8, 2017, the court issued judgment concerning a hearing on June

7, 2017. The judgment recites at the hearing, counsel for Appellant stated he had no

basis to challenge the findings of Dr. Noffsinger and advised he would file a motion for a

second evaluation by District V Forensic Diagnostic Center. The court subsequently

ordered a forensic evaluation be conducted on Appellant at the jail related to the motions

for a competency evaluation and his NGRI plea.

           {¶21} The trial court held a hearing on August 17, 2017. At the hearing, the court

noted Appellant refused to cooperate with the expert evaluation at the jail, and therefore

the court found Appellant competent to stand trial, based on the latest expert evaluations

filed with the court.

           {¶22} The record demonstrates the trial court went to great lengths to protect

Appellant’s rights with regard to his competence to stand trial. However, when Appellant



1   Dr. Noffsinger’s report is not part of the record before this Court on appeal.
Ashland County, Case No. 18-COA-021                                                    9


was unwilling to cooperate with the evaluation at the jail, the only evidence before the

court was the stipulated report filed December 2, 2016, representing Appellant had been

restored to competency, and the report of Dr. Noffsinger, which from the record we

presume found Appellant competent, and which ultimately Appellant determined he could

not challenge.    Appellant was given an opportunity for an evidentiary hearing on his

second request for a competency evaluation, but ultimately decided to accept the report

of Dr. Noffsinger. When Appellant refused to cooperate with the independent evaluation,

the court did not err in proceeding to trial.

       {¶23} Appellant argues his conduct at trial bears indicia of incompetence. The

decision whether to hold a competency hearing mid-trial lies within the discretion of the

court. Berry, supra. Appellant’s behavior when he initially chose to participate was

profane and disruptive. He subsequently chose not to be present. However, Appellant’s

unwillingness to cooperate with counsel and behave appropriately in court does not

demonstrate he was incapable of understanding the nature and objective of the

proceedings against him or of assisting in his own defense. We find the court did not

abuse its discretion in failing to hold a competency hearing sua sponte mid-trial.

       {¶24} The first assignment of error is overruled.

                                                II.

       {¶25} In his second assignment of error, Appellant argues counsel was ineffective

for failing to request an evidentiary hearing on competency at the August 17, 2017

hearing.

       {¶26} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio
Ashland County, Case No. 18-COA-021                                                      10

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.

       {¶27} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,

693 N.E.2d 267 (1998). In addition, the United States Supreme Court and the Ohio

Supreme Court have held a reviewing court “need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland

at 697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do not constitute

ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189

(1980).

       {¶28} Appellant has not demonstrated prejudice from counsel’s decision not to

request an evidentiary hearing on competence at the August 17, 2017 hearing. Counsel

previously requested an evidentiary hearing on competence, but ultimately determined

he could not challenge the findings of Dr. Noffsinger. He requested an evaluation of
Ashland County, Case No. 18-COA-021                                                       11


Appellant at the jail, and the court granted his request. However, Appellant refused to

participate in said evaluation. At the time of the August 17, 2017, hearing, counsel had

no expert basis on which to request an evidentiary hearing due to Appellant’s

unwillingness to participate. All the evidence available to counsel and the court on August

17, 2017, appears to indicate Appellant was competent to stand trial. Appellant has not

demonstrated had counsel requested a hearing, he would have been found incompetent

to stand trial.

          {¶29} The second assignment of error is overruled.

                                                III.

          {¶30} Appellant argues his convictions are against the manifest weight of the

evidence. Specifically, he argues the convictions of rape and burglary are against the

manifest weight of the evidence.

          {¶31} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).

          {¶32} Appellant was convicted of three counts of rape in violation of R.C.

2907.02(A)(2), which provides, “No person shall engage in sexual conduct with another

when the offender purposely compels the other person to submit by force or threat of

force.”
Ashland County, Case No. 18-COA-021                                                         12


       {¶33} Appellant argues J.G.’s timeline of events is not believable, as she originally

testified Appellant first approached her at “maybe 9:00,” which was not consistent with

Boonie’s testimony he arrived home at midnight. When cross-examined as to whether the

attack went on for three hours, J.G. explained she watched a movie for an hour and a

half, then went upstairs and was on her phone, which is when the attack happened. When

asked if she was mistaken when she mentioned 9:00, she testified, ‘Best guess because

I don’t know.” Appellant argues this inconsistency calls her reliability into question. He

further argues the State failed to establish a complete chain of custody for the rape kit

after its delivery to BCI and subsequent internal handling at BCI. He argues the DNA

evidence was inconclusive as to specific contact between Appellant and J.G.

       {¶34} J.G.’s inability to recall the exact time Appellant began the attack does not

render her testimony completely unreliable. She testified Appellant walked into the room

where J.G. was staying, and tried to grab her foot. When J.G. attempted to use her cell

phone, Appellant threw the phone into a fish tank. J.G. ran downstairs. She testified

Appellant threatened the lives of J.G., G.S., and B.S., and the lives of their families. He

ordered all three children into a closet, and destroyed B.S.’s phone before he could call

911.

       {¶35} J.G. testified while the boys were in the closet, Appellant grabbed her, and

told her to get in the bathroom. She told him no. Appellant picked J.G. up, threw her

against a wall, choked her, and threatened to kill her if she didn’t listen to him. She

continued to fight, throwing a hair spray bottle at him. He picked her up and started

choking her again. He told J.G. to take off her clothes. Initially she resisted, but eventually

complied as his threats continued. Appellant removed her pants and underwear, and put
Ashland County, Case No. 18-COA-021                                                        13


his tongue in her vagina. He put his penis in J.G.’s mouth, and then placed his finger in

her vagina. Appellant then bent J.G. over the tub and turned on the water so no one

could hear. She testified at this point Boonie returned, and Appellant fled.

       {¶36} Her testimony was corroborated by the testimony of B.S.             He testified

Appellant made J.G., B.S. and G.S. get in the closet. After Appellant took J.G. to the

bathroom, B.S. heard Appellant say, “Suck it harder, harder.” Tr. 93. He heard J.G. ask

Appellant, “What if I get pregnant,” and Appellant respond she was too pretty to get

pregnant. Tr. 93. Boonie testified J.G. ran out of the house wearing a towel, screaming

Appellant had raped her. He testified B.S. and G.S. were hysterical and scared when

they came out of the closet. We find the jury did not lose its way in finding J.G.’s testimony

credible despite her inability to remember the exact time of the rape.

       {¶37} Appellant also argues the DNA evidence taken from the rape kit is entitled

to little weight because of the failure of the State to prove an unbroken chain of custody.

While every witness at BCI who might have handled the evidence did not testify, Andrea

Dennis, the forensic scientist at BCI who tested the evidence in the kit, testified the packet

is received by BCI “receiving personnel,” given a barcode, and put in an evidence vault.

When the analyst is ready to test the evidence, he or she takes the packet out of the vault

and scans it into his or her personal custody. Tr. 254. Nothing in the record suggests

BCI’s internal procedures were not followed in this case. The fact not every witness who

might have handled the evidence at BCI testified does not render the evidence completely

unreliable.

       {¶38} Further, the DNA results were not inconclusive as Appellant argues in his

brief. While not every swab produced a conclusive result, a DNA profile taken from J.G.’s
Ashland County, Case No. 18-COA-021                                                      14


inner thigh was consistent with Appellant’s DNA profile with a rarity of one in 537 million,

and DNA found on the swab taken from Appellant’s penis was consistent with J.G.’s

profile with a rarity of one in 4,737. The DNA evidence further corroborates J.G.’s

testimony concerning the rape.

       {¶39} From the physical evidence and testimony in the case, we find the jury did

not lose its way in finding Appellant guilty of the charges of rape against J.G., and the

judgment of conviction is not against the manifest weight of the evidence.

       {¶40} Appellant further argues the State failed to prove the elements of burglary

beyond a reasonable doubt. Specifically, he argues the State failed to prove he entered

the home at 1289 County Road 1356 with intent to commit a criminal offense therein.

       {¶41} Appellant’s argument as to burglary is the conviction is not supported by

sufficient evidence, rather than a claim the judgment is against the manifest weight of the

evidence. An appellate court's function when reviewing the sufficiency of the evidence is

to determine whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

       {¶42} Appellant was convicted of burglary in violation of 2911.12(A)(3):



              (A) No person, by force, stealth, or deception, shall do any of the

       following:

              (3) Trespass in an occupied structure or in a separately secured or

       separately occupied portion of an occupied structure, with purpose to
Ashland County, Case No. 18-COA-021                                                      15


       commit in the structure or separately secured or separately occupied portion

       of the structure any criminal offense.



       {¶43} “For purposes of defining the offense of aggravated burglary pursuant to

R.C. 2911.11, a defendant may form the purpose to commit a criminal offense at any

point during the course of a trespass.” State v. Fontes, 87 Ohio St.3d 527, 2000–Ohio–

472 721 N.E.2d 1037, syllabus.         Because the language concerning “purpose to

commit…any criminal offense” is also found in R.C. 2911.12, defining burglary, the rule

of law set forth in Fontes also applies to the offense of burglary. See State v. Evett, 9th

Dist. Medina No. 14CA0008-M, 2015-Ohio-2722, ¶ 16; State v. Tyson, 10th Dist. Franklin

No. 10AP–830, 2011–Ohio–4981, ¶ 31; State v. Moore, 12th Dist. Butler No. CA2205–

06–148, 2006–Ohio–2800, ¶ 8.

       {¶44} The State presented evidence the motion detector alarm was set off in the

home where Appellant was later found hiding in the attic. Upon entering the home,

officers and the homeowner discovered the key pad and siren of the alarm system were

torn from the wall. The key pad and batteries were lying in the house, and the siren box

had been ripped off the wall, with wires sticking out of the wall. The siren box was located

in the bathtub upstairs. The homeowner was required to replace the alarm system at a

cost of $800.00. From this evidence, the jury could find during the time he trespassed in

the home, Appellant formed the purpose to commit a criminal offense, i.e. criminal

damaging or endangering (R.C. 2909.06).         The burglary conviction is supported by

sufficient evidence.

       {¶45} The third assignment of error is overruled.
Ashland County, Case No. 18-COA-021                                                   16


                                                  IV.

      {¶46} In his fourth assignment of error, Appellant argues the offenses of

kidnapping and rape are allied offenses of similar import.

      {¶47} 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 contain counts for all such

      offenses, and the defendant may be convicted of all of them.



      {¶48} In the syllabus of State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34

N.E.2d 892, the Ohio Supreme Court revised its allied-offense jurisprudence:



             1. In determining whether offenses are allied offenses of similar

      import within the meaning of R.C. 2941.25, courts must evaluate three

      separate factors-the conduct, the animus, and the import.

             2. Two or more offenses of dissimilar import exist within the meaning

      of R.C. 2941.25(B) when the defendant's conduct constitutes offenses
Ashland County, Case No. 18-COA-021                                                   17


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

     separate and identifiable.

     {¶49} The Court further explained:



            A trial court and the reviewing court on appeal when considering

     whether there are allied offenses that merge into a single conviction under

     R.C. 2941.25(A) must first take into account the conduct of the defendant.

     In other words, how were the offenses committed? If any of the following is

     true, the offenses cannot merge and the defendant may be convicted and

     sentenced for multiple offenses: (1) the offenses are dissimilar in import or

     significance—in other words, each offense caused separate, identifiable

     harm, (2) the offenses were committed separately, or (3) the offenses were

     committed with separate animus or motivation.

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

     of a case because R.C. 2941.25 focuses on the defendant's conduct. The

     evidence at trial or during a plea or sentencing hearing will reveal whether

     the offenses have similar import. 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. Also, a

     defendant's conduct that constitutes two or more offenses against a single

     victim can support multiple convictions if the harm that results from each

     offense is separate and identifiable from the harm of the other offense. We

     therefore hold that two or more offenses of dissimilar import exist within the
Ashland County, Case No. 18-COA-021                                                         18


       meaning of R.C. 2941.25(B) when the defendant's conduct constitutes

       offenses involving separate victims or if the harm that results from each

       offense is separate and identifiable. Id. at ¶¶ 25–26.



       {¶50} Appellant did not raise this argument at sentencing, and therefore we must

find plain error in order to reverse. The Ohio Supreme Court has recently clarified the

standard of review for plain error:



              Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

       errors or defects affecting substantial rights” notwithstanding an accused's

       failure to meet his obligation to bring those errors to the attention of the trial

       court. However, the accused bears the burden to demonstrate plain error

       on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034,

       19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal

       rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.

       Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

              Even if the error is obvious, it must have affected substantial rights,

       and “[w]e have interpreted this aspect of the rule to mean that the trial

       court's error must have affected the outcome of the trial.” Id. We recently

       clarified in State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38

       N.E.3d 860, that the accused is “required to demonstrate a reasonable

       probability that the error resulted in prejudice—the same deferential

       standard for reviewing ineffective assistance of counsel claims.” (Emphasis
Ashland County, Case No. 18-COA-021                                                   19

      sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74,

      81–83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

             If the accused shows that the trial court committed plain error

      affecting the outcome of the proceeding, an appellate court is not required

      to correct it; we have “admonish[ed] courts to notice plain error ‘with the

      utmost caution, under exceptional circumstances and only to prevent a

      manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759

      N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

      (1978), paragraph three of the syllabus.



      {¶51} State v. Thomas, 152 Ohio St.3d 15, 92 N.E.3d 821, 2017–Ohio–8011, ¶¶

32–34.

      {¶52} In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), at the

syllabus, the Ohio Supreme Court established a framework to analyze whether

kidnapping and another offense were committed with a separate animus as to each

pursuant to R.C. 2941.25(B):



             (a) Where the restraint or movement of the victim is merely incidental

      to a separate underlying crime, there exists no separate animus sufficient

      to sustain separate convictions; however, where the restraint is prolonged,

      the confinement is secretive, or the movement is substantial so as to

      demonstrate a significance independent of the other offense, there exists a
Ashland County, Case No. 18-COA-021                                                      20


       separate animus as to each offense sufficient to support separate

       convictions;

              (b) Where the importation or restraint of the victim subjects the victim

       to a substantial increase in risk of harm separate and apart from that

       involved in the underlying crime, there exists a separate animus as to each

       offense sufficient to support separate convictions.



       {¶53} J.G. testified as follows:



              And he was like, get in the bathroom, and I said, no, and Rodney

       picked me up and threw me against the wall, and he started choking me

       and he said that you are going to listening [sic] to me or you are dying, and

       I didn’t want to die, so I said okay, and he was like, sit on the toilet, and I

       said, no, and he slammed me on the toilet, and there was a rack with

       perfume bottles and I pick up a hair spray bottle and I threw it at him and he

       picked me up again and started choking me, and I said stop because I could

       not breath [sic], and then he said take off your clothes, and I said, no.



       {¶54} Tr. 53.

       {¶55} Kathleen Hackett, the Sexual Assault Nurse Examiner who examined J.G.

at Rainbow Babies Hospital in Cleveland, noted J.G. had a red mark on her neck. Tr.

192.
Ashland County, Case No. 18-COA-021                                                      21


       {¶56} We find the restraint of the victim in this case subjected her to a substantial

increase in risk of both physical and psychological harm, separate and apart from the

rape. Physically Appellant grabbed her by the neck, holding her against the wall and

choking her, leaving a noticeable red mark on her neck. Further, he threatened her with

death, causing a risk of psychological harm separate and apart from the harm of the

sexual assault. We therefore find the court did not commit plain error in failing to merge

the kidnapping conviction with the rape convictions, as under the facts of this case, the

offenses are not allied offenses of similar import.

       {¶57} The fourth assignment of error is overruled. The judgment of the Ashland

County Common Pleas Court is affirmed.



By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
