[Cite as State v. Tolliver, 2020-Ohio-3121.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              No. 108955
                 v.                                  :

GREGORY TOLLIVER,                                    :

                 Defendant-Appellant.                :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 28, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-19-640790-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Timothy Troup, Assistant Prosecuting
                 Attorney, for appellee.

                 Christopher M. Kelley, for appellant.


KATHLEEN ANN KEOUGH, J.:

                   Defendant-appellant, Gregory Tolliver, appeals from the trial court’s

judgment, rendered after a bench trial, finding him guilty of kidnapping, felonious
assault, and domestic violence, and sentencing him to five years in prison. Finding

no merit to the appeal, we affirm.

I.   Facts and Procedural History

               Tolliver was originally indicted in February 2019, in CR-19-636111 on

two counts of felonious assault in violation of R.C. 2903.11(A)(1) and three counts of

domestic violence in violation of R.C. 2919.25(A). The charges related to incidents

that occurred on September 8, 2018, December 27, 2018, and January 5, 2019, when

Tolliver assaulted his girlfriend, Tamara Townsend.

               After rejecting all plea offers, Tolliver was reindicted on June 19,

2019, in CR-19-640790 on two counts of kidnapping in violation of R.C.

2905.01(A)(3); three counts of felonious assault in violation of R.C. 2903.11(A)(1);

three counts of domestic violence in violation of R.C. 2919.25(A); one count of

violating a protection order in violation of R.C. 2919.27(A)(1); and one count of

intimidation of a crime victim or witness in violation of R.C. 2921.04(B)(1).1

Counts 9 and 10, violating a protection order and intimidation of a crime victim or

witness, were dismissed prior to trial. Tolliver waived his right to a jury, and the

trial court commenced a bench trial on June 27, 2019.




      1The   counts related to the three incidents as follows: Count 1, kidnapping for a
daytime incident on January 5, 2019; Count 2, kidnapping for an evening incident on
January 5, 2019; Counts 3 and 4, felonious assault and domestic violence for the daytime
incident on January 5, 2019; Counts 5 and 6, felonious assault and domestic violence for
the December 27, 2018 incident; and Counts 7 and 8, felonious assault and domestic
violence for the September 9, 2018 incident.
               Townsend testified that at the time of the offenses, she had been in a

relationship with Tolliver for seven years. She said that she and Tolliver were not

living together at the time of the offenses, but had lived together for nearly a year in

2014. Townsend said that she was living with her grandmother in a duplex house

when the offenses occurred.

               Townsend testified to four separate incidents of abuse by Tolliver.

She said the first incident occurred on September 9, 2018, when Tolliver punched

her in the eye, causing a hairline fracture of her eye socket bone, and leaving her

with a black eye that was still visible at the time of trial. Townsend said that she did

not call the police after this incident, but a friend took her to the hospital for

treatment. She said that she could not remember what caused the incident, she and

Tolliver did not talk about the incident, and their relationship resumed after the

incident.

               Townsend testified that she went to the hospital again on December

27, 2018 as a result of a second incident. She said that this time, Tolliver punched

her twice in the nose with a closed fist because he was angry at her for “not listening;

for not hearing what [he] said the first time.” Townsend said she again did not call

the police, but took the bus to the hospital, where she was treated for a fractured

nose and pain. Townsend said that she stayed with her aunt for a week after this

incident because Tolliver did not know where her aunt lived, and she was afraid to

go back to her grandmother’s house. Townsend admitted that she continued talking
with Tolliver during this week, however, and that when she went back to live with

her grandmother, her relationship with Tolliver “went back to normal.”

                The third and fourth incidents occurred on January 5, 2019.

Townsend said that the attic of her grandmother’s house was furnished with a couch

and used as a TV room, and that she sometimes let Tolliver stay there. She said she

knew Tolliver was upset with her that day because she had not answered a phone

call from him the night before, but she nonetheless went upstairs when he called her

and told her to come to the attic.

                Townsend said that when she arrived in the attic, Tolliver yelled at

her and then hit her “all over” her body with a closed fist. She said that as he beat

her, he told her she was “dumb, stupid”; that she “should have listened,” and “should

have answered her phone.” She said that he grabbed an electrical cord and hit her

15 to 20 times with it and then threw a hot plate at her, burning her from her knee

to her ankle.

                Townsend said that the beating continued for nearly an hour, and she

was in fear for her life while it was happening. She said that she screamed and

repeatedly yelled “stop,” but members of her family, who were on the first floor of

the house, did not come to help her. She said that Tolliver would not let her leave

the attic and physically restrained her multiple times when she tried to leave.

                Townsend testified that Tolliver finally allowed her to leave because

her family kept repeatedly calling her phone to find out where she was. She said she
went to a downstairs bathroom to clean her face before her family saw it, and then

went to her bedroom, where she slept for a few hours.

               Townsend said that she texted Tolliver upon waking up, and he told

her to bring him a cigarette in the back hallway. She said that when she arrived in

the hallway, “he smacked the cigarette out my hand, started yelling, and made me

go in the basement.” Townsend said that she did not want to go to the basement

with Tolliver but complied with his order because she “always [did] whatever he told

her to do.”

               Townsend said that in the basement, Tolliver hit her “hard” three or

four times in her face with his fist, refracturing her nose and requiring stitches above

and below her eye and to her top and bottom lips. She said the incident lasted five

to ten minutes, and that she was unable to escape up the single flight of stairs.

Townsend said that Tolliver eventually told her to go back up to the attic, but “scared

that it would get worse,” she ran up the basement stairs, through the door to her

grandmother’s house, and into her bedroom, where she called 911.

               The police arrived five to ten minutes later. An ambulance took

Townsend to the hospital, where she stayed overnight.            Townsend identified

photographs of injuries to her face, thighs, back, and leg that were taken by the

police at the scene. She also identified state’s exhibit No. 7 as medical records of her

treatment relating to the December 2018 and January 2019 incidents. Townsend

said that after the January 5 incidents, she moved from her grandmother’s house,
changed her phone number, and began seeing a counselor. She said she had not

seen Tolliver again until the day of trial.

               Cleveland Police Detective Walter Emerick testified that he

responded to Townsend’s grandmother’s house on January 7, 2019, to investigate

the incident. He spoke with Townsend and took pictures inside and outside the

house. Detective Emerick identified state’s exhibits Nos. 10 through 43 as the

photographs he had taken, including a photograph of the electrical cord that

Townsend said Tolliver used to beat her, a photograph of the hot plate, and

photographs of Townsend’s injuries to her face, which were still visible two days

after the attacks. Detective Emerick testified that exhibits Nos. 21 and 22 were

photographs of blood smeared on the washing machine in the basement of the

house, and exhibit No. 39 was a photograph of blood spots on the floor in the attic.

               Cleveland Police Officer Elaina Ciacchi testified that she responded to

the scene on January 5, 2019, after a report of a female assaulted. She said that

although she sees “a lot” of domestic violence cases, she remembered this incident

well because “the assault that occurred on the victim, it was pretty bad. I mean, I

hadn’t seen anything like that.”

               Office Ciacchi testified that she spoke with Townsend and her family

members, who were upset. She said that Townsend gave a description of her

assailant and told her that he might still be in the house. The police searched the

house but did not locate Tolliver. Officer Ciacchi testified that she observed blood
on the washing machine in the basement that was consistent with what Townsend

told her had happened.

              Cleveland Police Detective Adonna Perez testified that she responded

to University Hospitals in the early morning hours of January 6, 2019, to interview

Townsend, who identified Tolliver as her assailant and told her about the current

assaults, as well as the previous assaults in September and December, 2018.

Detective Perez testified that she observed injuries on Townsend that were

consistent with an assault: her face was severely swollen, and there were visible

lumps on her head and face, cuts on her face and eyes, blood on her lips, nose, and

face, bruising down the left side of her body, and a burn on her shin.

              After the trial court denied Tolliver’s Crim.R. 29 motion for acquittal,

Tolliver testified in his own defense. With regard to the September 9, 2018 incident,

he said that “nothing happened,” and he had “no clue” why Townsend would accuse

him of beating her so hard that she had to go to the hospital.

              Tolliver said he began staying in the attic of Townsend’s

grandmother’s house around December 10, 2018, because he had nowhere else to

stay. With regard to the December 27, 2018 incident, Tolliver said he “never

punched” Townsend, had “no idea” why she had a fractured nose, and that

Townsend never told him why she went to the hospital.

              Tolliver testified that prior to the January 5, 2019 incidents, he and

Townsend had been having “trust issues” because a woman had called Townsend

and told her she was pregnant with Tolliver’s baby. Tolliver testified that when he
woke up at approximately 11:30 a.m. on January 5, he called Townsend and asked

her to bring him a cigarette. He said that Townsend started “going off” on the phone

about issues in their relationship, so he asked her to come to the attic. He said that

when she came up to the attic, he told her he was going to leave her because he

thought she was cheating on him. He said that Townsend became enraged, grabbed

him, hit him in the back of his head, and then grabbed a pen and came at him.

Tolliver said that he felt threatened, so he pushed her. He said Townsend started

swinging at him with the pen, so he held her arm and then grabbed the electrical

cord and hit her three or four times with it. Tolliver said that Townsend left after he

taunted her about the other woman, and he went to sleep.

               Tolliver said that when he woke up around 9 p.m., he called

Townsend and asked her to bring a cigarette to him in the back hallway of the house.

He said that when they met in the hallway, he asked Townsend if they could talk in

the basement. He said that in the basement, he asked Townsend why she was

making him feel that he could not trust her, and she became angry, pushed him up

against the dryer, and started swinging at him. Tolliver said he swung at Townsend,

hitting her eye, and then slapped her three times, hitting her mouth. He said that as

he was walking up the stairs, Townsend ran past him, pushed him off the stairs, and

ran inside her grandmother’s house. Townsend then texted Tolliver and told him

the police were on their way, so he left.

               On cross-examination, Tolliver agreed that the blood on the washing

machine as shown in state’s exhibit No. 22 was Townsend’s blood, either from when
he hit her during the attic incident and “busted” her lip, or from when he hit her in

the face three times in the basement. He further agreed that the blood on the attic

floor was Townsend’s blood. Tolliver also agreed that despite his testimony that

Townsend hit him several times, his booking photos did not show any swelling or

marks on his face.

               After again denying Tolliver’s Crim.R. 29 motion, the trial court found

him guilty of Count 1, kidnapping relating to the first January 5, 2019 incident;

Count 2, kidnapping relating to the second January 5, 2019 incident; Counts 3 and

4, felonious assault and domestic violence, respectively, relating to the first January

5 incident; and Counts 5 and 6, felonious assault and domestic violence,

respectively, relating to the December 27 incident. The trial court found Tolliver not

guilty of Counts 7 and 8, felonious assault and domestic violence, respectively,

relating to the September 9 incident.

               At the initial sentencing hearing, defense counsel advised the court

that Tolliver wanted a new attorney. Upon questioning by the court, Tolliver said he

had filed a pro se motion for new counsel because he believed that his counsel had

not adequately prepared a defense for the kidnapping counts after he was reindicted.

Tolliver said that he was reindicted after he rejected two plea offers, and that he “just

felt like it was a violation [his] constitutional rights” because he was reindicted on

felony charges that were not initially indicted, and that his counsel was not given

adequate time to prepare a defense. After another hearing on the issue, the trial

court granted Tolliver’s motion and appointed new defense counsel.
              At the sentencing hearing, the trial court merged the felonious assault

and domestic violence charges, and sentenced Tolliver to five years incarceration on

Count 1, kidnapping; four years on Count 2, kidnapping; four years on Count 3,

felonious assault; and four years on Count 5, felonious assault. The court ordered

the sentences to be served concurrently, for a total prison term of five years. This

appeal followed.

II. Law and Analysis

      A. Superseding Indictment

              In his first assignment of error, Tolliver contends that the

reindictment violated his due process rights because he was reindicted on additional

charges due to prosecutorial vindictiveness after he rejected two plea offers and

insisted on going to trial. We find no due process violation.

              Initially, we note that immediately prior to trial, defense counsel

informed the court that Tolliver had no objection to dismissing the first indictment

and proceeding to trial on the reindictment. (Tr. 10-11.) Accordingly, Tolliver

waived any objection to the reindictment. Tolliver’s argument also fails on the

merits.

              When the state increases the severity of the charges against a

defendant after a trial has begun, there is a presumption that the state acted with

animus toward the defendant. State v. Wilson, 47 Ohio App.3d 136, 547 N.E.2d

1185, syllabus (8th Dist.1988). No such presumption applies when the state acts in

a similar way during the pretrial phase of a criminal case. Id. Instead, the burden
is on the defendant to show that the state’s decision was motivated by vindictiveness.

Id.

               “[A] threat of indictment on more serious charges is not a violation

of due process.” State v. Staten, 7th Dist. Mahoning No. 03 MA 187, 2005-Ohio-

1350, ¶ 47. A prosecutor is permitted to use the possibility of reindictment on more

serious charges as an inducement in the plea bargain process. As stated by the U.S.

Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d

604 (1978):

      While confronting a defendant with the risk of more severe punishment
      clearly may have a “discouraging effect on the defendant’s assertion of
      his trial rights, the imposition of these difficult choices [is] an
      inevitable” — and permissible — “attribute of any legitimate system
      which tolerates and encourages the negotiation of pleas.” By tolerating
      and encouraging the negotiation of pleas, this Court has necessarily
      accepted as constitutionally legitimate the simple reality that the
      prosecutor’s interest at the bargaining table is to persuade the
      defendant to forgo his right to plead not guilty.

Id. at 364, quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 36 L.Ed.2d

714 (1973).

               Tolliver does not dispute the prosecutor’s right to use the threat of

additional charges to induce a plea, nor the prosecutor’s right to then reindict if the

defendant does not accept the plea offer. Rather, he contends that the reindictment

in this case was motivated by prosecutorial vindictiveness because he was reindicted

on the more serious kidnapping charges on June 19, 2019, and his case went to trial

only eight days later. He contends that the reindictment was vindictive because “the
state waited until days before trial to obtain a superseding indictment and then

proceeded directly to trial.”

               We find no vindictiveness under these circumstances. First, Tolliver

could have requested a continuance to prepare for trial on the additional charges,

but did not do so. Moreover, Tolliver was well informed during plea negotiations

that he could be reindicted on the kidnapping charges, and the evidence supporting

the kidnapping charges was contained in documents provided to Tolliver during

discovery after the first indictment.

               At the initial sentencing hearing, after Tolliver said he wanted a new

lawyer, the trial court questioned defense counsel about Tolliver’s claim that he did

not have adequate time to prepare for trial on the additional charges because he was

reindicted so close to the trial date. Defense counsel informed the court that Tolliver

had been made aware of the possibility of a reindictment during the plea

discussions.   (Tr. 179.)       Defense counsel further advised the court that the

reindictment did not raise any new evidentiary issues or require any new witnesses.

(Tr. 180.) In fact, he told the court that “the victim in this case, she didn’t make any

new statements that would add a charge of kidnapping. That evidence was always

there. It just wasn’t charged.” (Tr. 181.)

               The trial court took Tolliver’s request for a new lawyer under

advisement. At the next hearing, the trial court again questioned the prosecutor and

defense counsel about whether any new discovery was required to address the

kidnapping counts in the reindictment. (Tr. 187.) The prosecutor told the court that
“the new indictment contained charges related to the original facts, to the original

discovery, the original reports and medical records that we had. They were part of

all the pretrial conversation that I had with defense counsel.” (Tr. 188.) Defense

counsel agreed with the prosecutor’s representations to the court, describing them

as accurate with regards to the kidnapping charges. The factual basis for those

charges was contained in the original police report, that is to say, the statements of

the alleged victim in this case could have possibly supported, you know, this

charging of kidnapping.” (Tr. 188-189.) Furthermore, defense counsel told the

court that Tolliver was advised during plea negotiations of the scheduled trial date,

and that he would be reindicted on more serious charges if the matter proceeded to

trial. (Tr. 190-191.)

               Under these circumstances, Tolliver has not met his burden of

demonstrating either prosecutorial vindictiveness or a denial of due process. The

record reflects that the evidence supporting the kidnapping charges was contained

in the discovery related to the first indictment and that no additional discovery was

required after the reindictment. Furthermore, Tolliver was advised during plea

negotiations that he would be reindicted on the kidnapping charges if he took the

matter to trial, and he was also advised of the looming trial date. On this record,

there is nothing whatsoever to indicate the reindictment was the vindictive result of

Tolliver’s exercise of his right to trial; accordingly, the first assignment of error is

overruled.
      B. Sufficiency of the Evidence

               Tolliver was convicted of kidnapping in violation of R.C.

2905.01(A)(3), which provides that “no person, by force, threat, or deception * * *

by any means, shall * * * restrain the liberty of the other person to terrorize, or to

inflict serious physical harm on the victim.” He was also convicted of felonious

assault in violation of R.C. 2903.11(A)(1), which provides that “no person shall

knowingly cause physical harm to another.” And he was convicted of domestic

violence in violation of R.C. 2919.25(A), which provides that “no person shall

knowingly cause or attempt to cause physical harm to a family or household

member.” “Family household member” includes a “person living as a spouse of the

offender;” a “person living as a spouse” includes “a person who is cohabiting with

the offender, or who otherwise has cohabitated with the offender within five years

prior to the date of the alleged commission of the act in question.”              R.C.

2919.25(F)(1)(a)(i) and (F)(2).

               In his third assignment of error, Tolliver contends that the trial court

erred in denying his Crim.R. 29 motions for acquittal because the evidence was

insufficient to support his convictions.

               A Crim.R. 29 motion challenges the sufficiency of the evidence. The

test for sufficiency requires a determination of whether the prosecution met its

burden of production at trial. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-

Ohio-578, ¶ 13. An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is

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

rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Thompson, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1997).

               Tolliver contends that the evidence was insufficient to support his

convictions because the state’s case was based primarily on Townsend’s testimony,

which he asserts was “unreliable and untrustworthy.” Specifically with regard to the

kidnapping convictions, he contends there was no evidence that he restrained

Townsend’s liberty.

              Although Tolliver asserts that Townsend was not a credible witness,

the test for sufficiency is not whether the state’s evidence is to be believed, but

whether, if believed, the evidence would support a conviction. Hill at ¶ 16, citing

State v. Woods, 8th Dist. Cuyahoga No. 82789, 2004-Ohio-2700, ¶ 63. This court

does not weigh the credibility of the witnesses when reviewing the sufficiency of the

evidence. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216,

¶ 79.

              Townsend testified that she went to the hospital on December 27,

2018, because Tolliver punched her twice in the nose with a closed fist, fracturing

her nose and requiring medical treatment. She testified further that on January 5,

2019, Tolliver would not allow her to leave the attic and physically restrained her
when she tried to leave, and that he beat her all over her body with his fist, hit her

numerous times with an electrical cord, and threw a hot plate at her, burning her leg

from her knee to her ankle. Townsend testified that Tolliver ordered her to go to the

basement later that day, and once in the basement, hit her three or four times in her

face, refracturing her nose. She testified further that she was unable to escape from

the basement during this incident. Finally, she testified that at the time of the

offenses, Tolliver was her boyfriend of over seven years and, although they were not

presently living together, they had lived together in 2014 for nearly a year.

               Townsend’s testimony, if believed, is sufficient to support all the

elements of Tolliver’s convictions for kidnapping, felonious assault, and domestic

violence. Accordingly, the third assignment of error is overruled.

      C. Manifest Weight of the Evidence

               In his second assignment of error, Tolliver contends that his

convictions were against the manifest weight of the evidence.

               In contrast to a sufficiency argument, a manifest weight challenge

questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12.            A reviewing court “weighs the

evidence and all reasonable inference, 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

reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d

541. A conviction should be reversed as against the manifest weight of the evidence
only in the most “exceptional case in which the evidence weighs heavily against the

conviction.” Id.

               Although we review credibility when considering the manifest weight

of the evidence, we are cognizant that determinations regarding the credibility of

witnesses and the weight of the testimony are primarily for the trier of fact. State v.

Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able “to

view the witnesses and observe their demeanor, gestures, and voice inflections, and

use these observations in weighing the credibility of the proffered testimony.” State

v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The trier of

fact may take note of any inconsistencies and resolve them accordingly, “believ[ing]

all, part, or none of a witness’s testimony.” Hill at ¶ 33, citing State v. Raver, 10th

Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio

St. 61, 67, 197 N.E.2d 548 (1964).

               Townsend was the only witness to the assaults. As set forth above,

she testified that she went to the hospital on December 27, 2018, because Tolliver

had punched her twice in the nose with a closed fist, necessitating medical

treatment. She testified further that on January 5, 2019, while she and Tolliver were

in the attic of her grandmother’s house, Tolliver beat her all over her body with his

fist, hit her numerous times with an electrical cord, and threw a hot plate at her,

burning her leg. She testified that the incident lasted for nearly an hour, she was in
fear for her life while it was happening, and that Tolliver physically restrained her

when she tried to leave.

               She testified further that later the same day, Tolliver used a ruse to

get her to the back hallway of the house by asking her to meet him there and give

him a cigarette. When she did so, Tolliver ordered her to go the basement, from

which she could not escape, and then hit her again three or four times in her face.

Townsend said she was able to escape from the basement only after Tolliver told her

to go to the attic, but instead, she ran up the stairs and into her grandmother’s house.

               Tolliver contends that his convictions are against the manifest weight

of the evidence because Townsend was not a credible witness, and there was no

corroborating evidence of the assaults. He argues that Townsend had a “clear

personal interest to advance her testimony” because she was upset that another

woman was pregnant with his baby, and that her testimony about the assault in the

attic was not credible because none of her family members heard her screaming

during the hour-long assault.

               Tolliver’s arguments are without merit. It is plausible that people on

the first floor of a house may not hear screaming in the attic. And the testimony that

Townsend was allegedly upset because another woman was pregnant with Tolliver’s

baby came only from Tolliver, who obviously had an interest to paint Townsend as

the aggressor in the assaults. But most importantly, Tolliver admitted that he

“busted” Townsend’s lip in the attic when he hit her, just as Townsend testified, and
that he hit her in the face three times when they were in the basement, again just as

Townsend testified.

               With respect to his kidnapping conviction on Count 1, Tolliver

contends his there was no credible evidence that he restrained Townsend in the attic

because she willingly went up to the attic, and the altercation occurred only after he

accused her of infidelity. Regarding Count 2, the kidnapping related to the basement

incident, Tolliver again contends there was no evidence he restrained Townsend

because she went willingly to the basement and the altercation lasted “only five

minutes.” These arguments also fail.

               Townsend’s testimony was clear that although she willingly went to

the attic to give Tolliver a cigarette, once she was there he started beating her and

physically restrained her when she tried to leave. And the five to ten minute length

of the incident in the basement is not dispositive of whether Tolliver restrained

Townsend during the incident. Townsend testified that Tolliver ordered her to go

to the basement even though she did not want to go, and that she was unable to

escape from the basement during the beating.

               The trial court, as the finder of fact in this case, was in the best

position to evaluate Townsend’s testimony and weigh any inconsistencies in her

testimony. On this record, we do not find her testimony so incredible that the trial

court lost its way or created a manifest miscarriage of justice in believing her.

                Furthermore, a conviction is not against the manifest weight of the

evidence merely because the victim was the sole eyewitness to the event. State v.
Martin, 8th Dist. Cuyahoga No. 90722, 2008-Ohio-5263, ¶ 42; see also State v.

Mansour, 11th Dist. Trumbull No. 2011-T-0013, 2011-Ohio-5438, ¶ 23 and cases

cited therein (all holding that the victim’s testimony alone was sufficient to support

the defendants’ convictions for domestic violence).       In this case, Townsend’s

testimony as to what happened — coupled with the testimony of Cleveland Police

Officer Ciacchi and Detectives Emerick and Perez; the pictures of the attic,

basement, and Townsend’s injuries; and Townsend’s medical records, in which she

identified Tolliver as her assailant — was adequate direct and circumstantial

evidence for the trial court to find Tolliver guilty beyond a reasonable doubt.

              This is not the exceptional case in which the defendant’s convictions

created such a manifest miscarriage of justice that they should be reversed and a

new trial ordered. The second assignment of error is therefore overruled.

      D. Allied Offenses

              In his fourth assignment of error, Tolliver contends that the trial court

erred in not merging Counts 1 and 2, the kidnapping convictions related to the

January 5, 2019 incidents, with Counts 3 and 4, the felonious assault and domestic

violence convictions, respectively, related to the January 5 incident in the attic.

Tolliver asserts that his convictions for felonious assault, domestic violence, and

kidnapping were subject to merger because the offenses were committed with the

same animus, were not committed separately, and were not dissimilar in import.

              R.C. 2941.25, Ohio’s allied offenses statute, codifies Ohio’s double

jeopardy protection prohibiting multiple punishments for the same offense. State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 12. R.C. 2941.25(A)

allows only a single conviction for offenses that are “allied offenses of similar

import.” Under R.C. 2941.25(B), however, a defendant charged with multiple

offenses may be convicted of all the offenses if (1) the offenses are dissimilar in

import of significance; i.e., each offense caused separate identifiable harm; (2) the

offenses were committed separately; or (3) the offenses were committed with

separate animus or motivation. Ruff at ¶ 13.

              An appellate court applies a de novo standard of review in reviewing

a trial court’s R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. “The defendant bears the burden of

establishing his entitlement to the protection provided by R.C. 2941.25 against

multiple punishments for a single criminal act.” State v. Washington, 137 Ohio

St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18.

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

Ohio Supreme Court set forth the following criteria for determining what constitutes

separate animus within the meaning of R.C. 2941.25(B) when a defendant has been

charged with multiple offenses including kidnapping:

      (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 separate animus as to each offense
      sufficient to support separate convictions;
         (b) Where the asportation 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.

                 Despite Tolliver’s argument otherwise, the evidence in this case does

not demonstrate that the kidnapping offense related to the incident in the attic

(Count 1) was merely incidental to the felonious assault and domestic violence

offenses that occurred there. Tolliver secreted Townsend in the attic, away from her

family, for a prolonged period of time so that he could assault her, and he physically

restrained her multiple times when she tried to leave. Tolliver’s conduct in secreting

Townsend for a prolonged time and in preventing her from leaving so he could

assault her demonstrated a separate animus for the kidnapping. Therefore, the trial

court did not err in not merging Count 1, kidnapping, with Counts 3 and 4, felonious

assault and domestic violence, respectively, relating to the January 5 incident in the

attic.

                 Tolliver’s argument regarding the merger of Count 2 with any other

counts fails because, as the prosecutor informed the trial court, “Count 2 stands

alone. That is the nighttime kidnapping of the victim in the basement of the house

where the defendant was able to coerce her to go down in the basement by asking

her for a cigarette. There’s no felonious assault associated with that, even though he

did assault her during that event.” (Tr. 207.) Accordingly, there were no felonious

assault or domestic violence counts to merge with Count 2, and the trial court

properly sentenced Tolliver on that count.
               Tolliver having failed to meet his burden of demonstrating his

entitlement to the protections of R.C. 2941.25(A), the fourth assignment of error is

overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

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

of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, A.J., and
LARRY A. JONES, SR., J., CONCUR
