[Cite as State v. Asadi-Ousley, 2017-Ohio-7252.]
                      [Please see vacated opinion at 2017-Ohio-2652.]

                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104267



                                      STATE OF OHIO
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                ASA J. ASADI-OUSLEY
                                                         DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-597885-A

        BEFORE:          E.T. Gallagher, J., Jones, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                        August 17, 2017
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 670218
Northfield, Ohio 44067


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Mary Weston
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ON RECONSIDERATION1

EILEEN T. GALLAGHER, J.:

      {¶1} Defendant-appellant, Asa J. Asadi-Ousley (“Asadi-Ousley”), appeals his

convictions and sentence for rape, felonious assault, kidnapping, and his sexually violent

predator conviction. He raises the following assignments of error for review:

      1. The trial court erred in failing to grant trial counsel’s motion to continue
      trial.

      2. The evidence was insufficient as a matter of law to support a finding
      beyond a reasonable doubt that [Asadi-Ousley] was guilty of the sexually
      violent predator specification attached to [Counts 1, 2, and 7] of the
      indictment.

      3. [Asadi-Ousley’s] convictions for rape, felonious assault, kidnapping, and
      the sexual predator specification were against the weight of the evidence.

      4. The trial court erred when it failed to merge the sentences imposed in
      [Counts 1, 2, and 7] as they are allied offenses of similar import.

      5. [Asadi-Ousley] was denied his right to effective assistance of counsel
      guaranteed by Article I, Section 10 of the Ohio Constitution and the Sixth
      and Fourteenth Amendments to the United States Constitution when his
      attorney failed to argue that [Asadi-Ousley’s] convictions for rape,
      felonious assault, and kidnapping were allied offenses of similar import.

      {¶2} After careful review of the record and relevant case law, we affirm

Asadi-Ousley’s convictions and sentence.



      1   The original decision in this appeal, State v. Asadi-Ousley, 8th Dist.
Cuyahoga No. 104267, 2017-Ohio-2652, released May 4, 2017, is hereby vacated.
This opinion, issued upon reconsideration, is the court’s journalized decision in this
appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
                          I. Procedural and Factual History

      {¶3} In July 2015, Asadi-Ousley was charged in a seven-count indictment.

Counts 1 and 2 charged      him with rape, and each count carried a sexually violent

predator specification. Counts 3 and 4 charged him with aggravated robbery. Count 5

charged him with felonious assault, and Counts 6 and 7 charged him with kidnapping.

      {¶4} The matter proceeded to a jury trial, at which the following evidence was

adduced.2

      {¶5} Sometime around October 2008, T.M. moved from Huron, Ohio, to

Cleveland to live with her boyfriend and his father. They lived in a duplex near the

intersection of East 140th Street and Kinsman in Cleveland. T.M. had never lived in

Cleveland and was unfamiliar with the neighborhood. On December 31, 2008, T.M.

decided to spend New Year’s Eve with some friends she recently made. T.M. testified

that she had consumed two alcoholic drinks and smoked some marijuana with her friends.

Around 10:30 p.m., one of her friends drove her home so she could watch the New

Year’s festivities on television with her boyfriend. When she arrived, however, her

boyfriend and his father were not home. The apartment did not have a phone so T.M.

could not call anyone. Since no one was home, T.M. decided to walk to the corner store

to buy some beer to drink while she watched the ball drop in Times Square on television.

T.M. walked to the store around 10:45 p.m. and bought a can of beer. As she was


      2  The sexually violent predator specification was tried before the bench. At
the conclusion of trial, the court found Asadi-Ousley guilty of the specification.
walking back home, a man grabbed her from behind and held a knife against her neck.

He told her not to scream or he would kill her. T.M. testified that she believed she heard

two voices. The attacker covered her mouth with his hand. T.M. testified that she never

observed her attacker’s face because he approached her from behind. With the knife

held to her neck, the attacker pushed T.M., forcing her into an alleyway. The attacker

then struck T.M. in the back of her head and she lost consciousness. T.M. referred to the

alley as “the cut.” She described it as an area between a house and a building.

      {¶6} T.M. awoke to find herself on the ground in the alley, her lip and nose were

bleeding, her vagina was sore, and her head hurt. Her shirt was ripped open and her

pants and underwear were pulled down. She testified that she realized that she had been

raped. Her can of beer and three dollars in change were gone. T.M. walked out of the

alleyway and headed back home. She called her boyfriend from a payphone on her way

back, but her attempt to reach him was unsuccessful. A boy she recognized from the

neighborhood saw her walking and helped her make it back home. When T.M. arrived

home, the house was still empty.3 She laid in bed and cried. T.M. testified that she had

suffered from depression when she was a teenager. She stayed in bed until the morning

of January 3, 2009, when she went to her neighbor’s house and called her boyfriend and

her mother, J.H. She told them what had happened. T.M.’s mother and boyfriend both



      3  T.M. testified that her boyfriend did not return home until after she was
discharged from the hospital. T.M. testified that it was not unusual for her
boyfriend to be away for long periods of time because he did not drive and did not
have money for bus fare.
advised her to go the hospital. J.H. testified that she remembered getting the phone call

from T.M. She still remembers that phone call because of how distraught T.M. sounded.

 T.M. was scared and crying hysterically.

       {¶7} T.M. then called an ambulance and was transported to the hospital. She

brought the clothes she wore on the night of the attack with her to the hospital. T.M.

spoke with police officers at the hospital, and a nurse performed a sexual assault kit on

T.M.

       {¶8} Sexual Assault Nurse Examiner Deanna Johnson (“Nurse Johnson”)

performed T.M.’s examination. Nurse Johnson testified that T.M. had vaginal pain and

bleeding and was crying during the examination. Nurse Johnson further testified that

T.M. disclosed she had been raped vaginally by strangers, one of whom had a knife, and

had been struck in the head and lost consciousness. Nurse Johnson observed a scratch on

T.M.’s neck consistent with T.M.’s report of having a knife held to her neck. Nurse

Johnson collected samples for the sexual assault kit and collected T.M.’s clothing.

       {¶9} Cleveland Police Officer Jenae Treece (“Officer Treece”) responded to the

report of T.M.’s rape and spoke to T.M. at the hospital. T.M. told her that one or

possibly two suspects were involved in the attack, one of which had a knife. Officer

Treece testified that T.M. had a scratch on her neck consistent with a knife being held

there. No suspect was identified during her investigation. Officer Treece described the

area where T.M. was attacked as being between East 139th Street and East 140th Street,

behind a beauty supply store.
       {¶10} T.M. moved to West Virginia after the incident. Almost seven years later,

sometime in 2015, Cleveland police contacted T.M. The officers had her look at some

photographs to identify her attacker, but she was unable to do so because she never saw

his face. T.M. could not identify Asadi-Ousley at trial as her attacker.

       {¶11} Jade McDaniel, a forensic scientist employed with the Ohio Bureau of

Criminal Investigation (“BCI”) testified that T.M.’s sexual assault kit was delivered to the

BCI lab on March 19, 2014, for DNA testing. She performed the DNA testing in this

case. The vaginal samples revealed a mixture of DNA profiles consisting of T.M. and an

unknown male.      A sample from T.M.’s underwear had a mixture of DNA profiles

consistent with T.M.’s and an unknown male.

       {¶12} On March 6, 2015, the lab received a DNA sample from Asadi-Ousley.

McDaniel compared Asadi-Ousley’s DNA sample with the samples in the kit. McDaniel

testified that Asadi-Ousley’s DNA was found in T.M.’s vaginal samples and on T.M.’s

underwear.

       {¶13} At the conclusion of trial, the jury found Asadi-Ousley guilty of both rape

counts, felonious assault, and both kidnapping counts. At sentencing, the trial court

merged the rape counts into one count (Count 2) and merged the kidnapping counts into

one count (Count 7). The trial court sentenced Asadi-Ousley to 15 years to life in prison

on each of Counts 2 and 7 and eight years in prison on Count 5. The court ordered that

the sentences be served concurrently for an aggregate of 15 years to life in prison.

                                  A. Motion to Continue
       {¶14} In his first assignment of error, Asadi-Ousley argues the trial court erred

when it did not grant his December 29, 2015 motion to continue trial.

       {¶15} The decision to grant or deny a motion to continue trial is left to the broad

and sound discretion of the trial judge, and an appellate court may not disturb the trial

court’s ruling absent an abuse of discretion.       Cleveland v. Washington, 8th Dist.

Cuyahoga Nos. 97945 and 97946, 2013-Ohio-367, ¶ 11, citing State v. Unger, 67 Ohio

St.2d 65, 423 N.E.2d 1078 (1981). “The term ‘abuse of discretion’ connotes more than

an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary

or unconscionable.” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d

144 (1980).

       {¶16} A reviewing court determines on a case-by-case basis whether the trial

court’s denial of a continuance motion was so arbitrary as to deprive the defendant of due

process, paying particular attention to the reasons presented to the trial judge at the time

the request was denied. Unger at 67. In determining whether the trial court abused its

discretion, an appellate court weighs “any potential prejudice to a defendant [against]

concerns such as a court’s right to control its own docket and the public’s interest in the

prompt and efficient dispatch of justice.” Id. The Unger court stated:

       In evaluating a motion for a continuance, a court should note, inter alia: the
       length of the delay requested; whether other continuances have been
       requested and received; the inconvenience to litigants, witnesses, opposing
       counsel and the court; whether the requested delay is for legitimate reasons
       or whether it is dilatory, purposeful, or contrived; whether the defendant
       contributed to the circumstance which gives rise to the request for a
       continuance; and other relevant factors, depending on the unique facts of
       each case. See United States v. Burton, supra; Giacalone v. Lucas, supra.

Id. at 67-68.

       {¶17} In this case, Asadi-Ousley had an initial trial date of October 28, 2015. On

October 12, 2015, Asadi-Ousley filed a motion to continue the trial date. The trial court

granted this motion and set a new trial date of December 2, 2015. On November 29,

2015, Asadi-Ousley filed his second motion to continue trial because defense counsel had

not fully recovered from eye surgery on his right eye and had eye surgery scheduled for

his left eye on December 4, 2015. Within the motion, defense counsel anticipated he

would need 30 days to recover.       The trial court granted Asadi-Ousley’s motion to

continue the second trial date and set a trial date of January 4, 2016. Then on December

29, 2015, Asadi-Ousley filed a third motion to continue trial because defense counsel had

not fully recovered from the December 4, 2015 surgery. On January 4, 2016, the trial

court addressed Asadi-Ousley’s third motion on the record as follows:

       THE COURT: [defense counsel], you made a motion to continue the trial
       once again based on your eyesight once again, is that correct?

       [DEFENSE COUNSEL]: That’s correct, Your Honor.

       THE COURT: We talked about this outside of the presence of the court
       reporter off the record and you correct me if I’m wrong, [defense counsel], I
       believe you indicated you could start today, that you are having trouble
       seeing and you sometimes need a magnifier or magnifying glass?

       [DEFENSE COUNSEL]: I’m using my eyeglasses today. I’m improving
       all the time, I’m just not all the way back.

       THE COURT: So what we had discussed outside of your client’s presence
       and not on the record was that I would tell the jury at the beginning when I
introduce you that you did have this recent cataract surgery and your
eyesight is not 100 percent, so if you seem unsure or unsteady on your feet
or it takes you awhile to read something, that’s because of your surgery and
not to make any inference.

[DEFENSE COUNSEL]: That is correct.

THE COURT: Would that be sufficient for you, [defense counsel]?

[DEFENSE COUNSEL]: Yes. I just have the depth perception problem.
I may reach for something that’s a little bit further than it appears, so I’m
sometimes unsteady on my feet.

THE COURT: So I’ll make my remarks, but certainly feel free to say what
you would like to say about the situation during the course of your voir dire
to the jurors.

[DEFENSE COUNSEL]: Your Honor, I fully discussed everything with

my client and I’m — we are prepared to go forward.

{¶18} The court denied the motion and Asadi-Ousley went forward with trial.
       {¶19} A review of this record reveals that Asadi-Ousley’s defense counsel

affirmatively waived Asadi-Ousley’s third motion to continue on the day of trial when he

told the trial court that they were, in fact, prepared to go forward that day. Moreover,

when applying the Unger factors to the instant case, we cannot conclude that the trial

court’s denial of Asadi-Ousley’s third continuance was unreasonable. The trial court

continued trial on two prior occasions at Asadi-Ousley’s request, and the multiple court

dates caused inconvenience to the state’s witnesses who had to travel to Cuyahoga

County to testify (T.M. traveled from West Virginia, J.H. traveled from Huron, Ohio, and

McDaniel traveled from Richfield, Ohio).        The trial court held a brief hearing and

inquired in depth of the continuance request. Given these facts, we cannot say that the

trial court’s decision to deny Asadi-Ousley’s third motion for continuance was

unreasonable, arbitrary, or unconscionable.

       {¶20} Therefore, the first assignment of error is overruled.

                             B. Sufficiency of the Evidence

       {¶21} In his second assignment of error, Asadi-Ousley argues there is insufficient

evidence to support a finding that he is a sexually violent predator.

       {¶22} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶

113, the Ohio Supreme Court explained the standard for sufficiency of the evidence as

follows:

       Raising the question of whether the evidence is legally sufficient to support
       the jury verdict as a matter of law invokes a due process concern. State v.
       Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In
       reviewing such a challenge, “[t]he relevant inquiry is whether, after viewing
       the evidence in a light most favorable to the prosecution, any rational trier
       of fact could have found the essential elements of the crime proven beyond
       a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
       (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443
       U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶23} We are mindful that in considering the sufficiency of evidence a certain

perspective is required. State v. Eley, 56 Ohio St.2d 169, 172, 383 N.E.2d 132 (1978).

“This court’s examination of the record at trial is limited to a determination of whether

there was evidence presented, ‘which, if believed, would convince the average mind of

the defendant’s guilt beyond a reasonable doubt.’” Id., quoting Atkins v. State, 115 Ohio

St. 542, 546, 155 N.E. 189 (1926). It is the minds of the trier of fact, rather than a

reviewing court, that must be convinced. State v. Thomas, 70 Ohio St.2d 79, 80, 434

N.E.2d 1356 (1982).

       {¶24} In the instant case, the trial court found Asadi-Ousley guilty of the sexually

violent predator specification as set forth in R.C. 2971.01(H)(1), which

defines a “sexually violent predator” as “a person who, on or after January l, l997,

commits a sexually violent offense and is likely to engage in the future in one or more

sexually violent offenses.”    R.C. 2971.01(H)(2)(a)-(f) lists the factors that may be

considered by the factfinder as evidence tending to indicate that there is a likelihood that

the person will engage in the future in one or more sexually violent offenses. It provides:

       (a) The person has been convicted two or more times, in separate criminal
       actions, of a sexually oriented offense or a child-victim oriented offense.
       For purposes of this division, convictions that result from or are connected
       with the same act or result from offenses committed at the same time are
       one conviction, and a conviction set aside pursuant to law is not a
       conviction.
        (b) The person has a documented history from childhood, into the juvenile
        developmental years, that exhibits sexually deviant behavior.

        (c) Available information or evidence suggests that the person chronically
        commits offenses with a sexual motivation.

        (d) The person has committed one or more offenses in which the person has
        tortured or engaged in ritualistic acts with one or more victims.

        (e) The person has committed one or more offenses in which one or more
        victims were physically harmed to the degree that the particular victim’s life
        was in jeopardy.

        (f) Any other relevant evidence.

        {¶25} Asadi-Ousley argues there is no documented history of past sexually violent

offenses, no proof that his behavior is chronic to a degree that it would be likely he would

offend again, and no proof he behaved in a manner that could be construed as torturous

or ritualistic.

        {¶26} While Asadi-Ousley has had several prior convictions for violent offenses,

the convictions in the instant case were his first for sexually oriented offenses. This

court, however, has previously held that the sexually violent predator statute does not

require a defendant to have a prior conviction for a sexually oriented offense to be found

guilty of a sexually violent predator specification. State v. Mitchell, 8th Dist. Cuyahoga

No. 94287, 2010-Ohio-5775 ¶ 26.

        {¶27} Moreover, in determining that Asadi-Ousley is a sexually violent predator, a

review of the record reveals the trial court considered the harm he caused to T.M. and
Asadi-Ousley’s prior criminal record (convictions for aggravated robbery with a gun,

robbery, burglary, and having a weapon while under disability). The court stated:

      [B]ased on the facts of this particular case and based on his violent record,
      I do find him to be a sexually violent predator and find him guilty of the
      sexually violent predator specification beyond a reasonable doubt.

      Obviously aggravated robbery, burglary, having a weapon under disability
      and robbery are all offenses of a serious nature and the one was with a
      weapon, a firearm, so obviously that’s incredibly serious and in this
      particular case, he snatched a woman walking down the street at 10:30 or so
      at night and he didn’t just restrain her of her liberty, that would be bad
      enough, but you actually dragged her into an alley and thereafter threatened
      her life and saying if she told anybody you would kill her and holding the
      knife to her throat and scratching her throat, you then raped her.

      I know the defense was consent. However, the injuries described by the
      victim, the bleeding as described by [the state], the injuries as indicated to
      the hospital personnel when she went to the hospital, the great pain she
      suffered, the psychological harm she suffered as a result of this very, very
      violent act would indicate that his behavior is of such a nature that he is
      likely to re-offend.

      So I make that finding beyond a reasonable doubt and I will set this for
      sentencing at a later date.

      {¶28} Based on the foregoing, we find sufficient evidence to support the sexually

violent predator conviction. Thus, the second assignment of error is overruled.

                         C. Manifest Weight of the Evidence

      {¶29} In his third assignment of error, Asadi-Ousley argues that all of his

convictions are against the manifest weight of the evidence.

      {¶30} 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, ¶ 13, citing Thompkins, 78 Ohio St.3d at 390, 1997-Ohio-52,
678 N.E.2d 541. The Ohio Supreme Court in State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:

       [T]he reviewing court asks whose evidence is more persuasive — the
       state’s or the defendants? * * * “When a court of appeals reverses a
       judgment of a trial court on the basis that the verdict is against the weight of
       the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
       with the factfinder’s resolution of the conflicting testimony.” [Thompkins
       at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
       L.Ed.2d 652.

       {¶31} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘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 at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Martin.

       {¶32} We note that when considering a manifest weight challenge, the trier of fact

is in the best position to take into account inconsistencies, along with the witnesses’s

manner, demeanor, gestures, and voice inflections, in determining whether the proffered

testimony is credible. State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶

26; see also State v. Lilliard, 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385,

2013-Ohio-4906, ¶ 93 (in considering the credibility of witnesses on a manifest weight

challenge, an appellate court is “guided by the presumption” that the jury, or the trial

court in a bench trial, 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.’” Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984)). Therefore, we afford great deference to the factfinder’s

determination of witness credibility.   State v. Ball, 8th Dist. Cuyahoga No. 99990,

2014-Ohio-1060, ¶ 36.

      {¶33} Asadi-Ousley argues the jury and trial court “lost their way” because T.M. is

unreliable and lacks credibility. In support of his argument, he refers to her testimony

that, on the night of the attack, she had been consuming alcohol and smoking marijuana

with friends, she could not recall if there were one or two assailants, she waited several

days before going to the hospital, and she suffers from depression. We disagree.

      {¶34} Asadi-Ousley was found guilty based on the evidence of several witnesses

and corroborated by DNA testing. T.M. testified that she was approached from behind

on the street by a stranger, forced at knife point into a dark alley, and then struck so

violently over the head that she lost consciousness. When she regained consciousness,

her shirt was torn open and her pants and underwear were down. She knew that she had

been violated sexually.     T.M. testified how the rape has adversely affected her

psychologically. She suffered from depression and laid in bed for days before deciding

to call her mother. Her mother testified as to the phone call she received from T.M., and

the hysteria in T.M.’s voice. The nurse who treated T.M. testified to T.M.’s demeanor,

pain, bleeding, and visible injuries. Asadi-Ousley’s DNA was found on T.M.’s vaginal

swabs and underwear. T.M. testified that her only consensual partner was her boyfriend.
        {¶35} Based on the foregoing, it cannot be said the jury “lost its way” in finding

Asadi-Ousley guilty of rape, kidnapping, and felonious assault. It further cannot be said

that the trial court “lost its way” in finding Asadi-Ousley to be a sexual predator. This is

not the rare case where the trier of fact clearly lost its way and created a manifest

miscarriage of justice.

        {¶36} Accordingly, the third assignment of error is overruled.

                     D. Merger and Ineffective Assistance of Counsel

        {¶37} In his fourth and fifth assignments of error, Asadi-Ousley argues the trial

court erred when it failed to merge Counts 2 (rape), 5 (felonious assault), and 7

(kidnapping) because the offenses are allied offenses of similar import, and defense

counsel was ineffective for failing to argue that these counts should have merged for

purposes of sentencing.

        {¶38} Initially, we note that in order to establish a claim of ineffective assistance

of appellate counsel, Asadi-Ousley must establish that the performance of his appellate

counsel was deficient and the deficiency resulted in prejudice.               Strickland v.

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

        {¶39} In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, the

Ohio Supreme Court held that

        [a]n accused’s failure to raise the issue of allied offenses of similar import
        in the trial court forfeits all but plain error, and a forfeited error is not
        reversible error unless it affected the outcome of the proceeding and
        reversal is necessary to correct a manifest miscarriage of justice.

Id. at ¶ 3.   The court further explained that
      an accused has the burden to demonstrate a reasonable probability that the
      convictions are for allied offenses of similar import committed with the
      same conduct and without a separate animus; and, absent that showing, the
      accused cannot demonstrate that the trial court’s failure to inquire whether
      the convictions merge for purposes of sentencing was plain error.

Id.

      {¶40} In this case, we find Asadi-Ousley’s ineffective assistance of counsel claim

regarding defense counsel’s failure to request merger of the rape, felonious assault, and

kidnapping offenses at sentencing fails under the second prong of     Strickland. For the

reasons that follow, Asadi-Ousley cannot show prejudice, or a reasonable probability that

but for trial counsel’s failure to request a merger, the outcome of the proceedings would

have been different.

      {¶41} Pursuant to R.C. 2941.25(A), “[w]here 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.”   However,

      [w]here 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.

R.C. 2941.25(B).

      {¶42} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

court held that if a defendant’s conduct supports multiple offenses, the defendant can be

convicted of all of the offenses if any one of the following is true (1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows the offenses were

committed separately, or (3) the conduct shows the offenses were committed with

separate animus. Id. at paragraph three of the syllabus, citing R.C. 2941.25(B). Two

or more offenses are of dissimilar import within the 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 paragraph two of the

syllabus.

        {¶43} In this case, Asadi-Ousley argues the rape, kidnapping, and felonious assault

offenses were committed with the same animus. He contends that the movement of

coming up from behind T.M., putting a knife to her neck, telling her if she screamed he

would kill her, and pushing her into an alleyway where the rape and robbery occurred,

was done for the purpose of raping her with no separate, identifiable harm.

        {¶44} After careful review, we disagree with Asadi-Ousley’s characterization of

the evidence.   Significantly, Asadi-Ousley’s argument disregards the fact that he struck

T.M. on the top of her head with an unidentified object just prior to the commission of the

rape.   In our view, this conduct unquestionably involved a separate and identifiable

harm, apart from T.M.’s kidnapping and the subsequent rape.      While the record reflects

that the felonious assault offense was committed during the commission of the

kidnapping offense, the physical injuries caused by the felonious assault were separate

and distinct from the harm caused by Asadi-Ousley’s movement of T.M. at knife point.

Similarly, while the felonious assault may have been committed to facilitate the rape, it
involved a separate harm from the harm that was involved in the commission of the rape.

 Accordingly, we find Asadi-Ousley’s felonious assault was an offense of dissimilar

import and, therefore, was not an allied offense subject to merger.

       {¶45} With respect to the offenses of rape and kidnapping, the Supreme Court of

Ohio has acknowledged that “implicit within every forcible rape * * * is a kidnapping”

because the victim’s liberty is restrained during the act of forcible rape. State v. Logan,

60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979). In Logan, the court provided the

following guidelines for determining whether kidnapping and another offense are allied

offenses that should merge prior to sentencing, stating:

       (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.

Id. at syllabus.

       {¶46} Applying these guidelines, the Ohio Supreme Court held in Logan, that the

offender’s conduct in forcing the victim into an alley before raping her at knife point was

committed without a separate animus. The court found that the movement was slight,

the detention brief, and the victim was released immediately after the commission of the
underlying crime, compelling the court’s conclusion that the kidnapping was incidental to

the rape. Id. at 135.

       {¶47} Although Logan predates Ruff, Ohio courts continue to apply the guidelines

set forth in Logan in determining whether kidnapping and another offense were

committed with a separate animus, in accordance with the third prong of the Ruff test.

State v. Armengau, 10th Dist. Franklin No. 14AP-679, 2017-Ohio-4452, ¶ 125, citing

State v. D.E.M., 10th Dist. Franklin No. 15AP-589, 2016-Ohio-5638, ¶ 143; State v.

Williams, 7th Dist. Mahoning No. 13 MA 125, 2015-Ohio-4100, ¶ 18; State v. Stinnett,

5th Dist. Fairfield No. 15-CA-24, 2016-Ohio-2711, ¶ 53.

       {¶48} In arguing the trial court erred by failing to merge his kidnapping and rape

convictions, Asadi-Ousley relies extensively on this court’s decision in State v. Echols,

8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138. In Echols, victim one was walking

home late at night.     As she passed a large tree or shrub near East 93rd Street and

Woodland Avenue, a person jumped out from the tree and came up behind her.           The

individual held a knife to her throat and threatened her.      He moved her from the

sidewalk to behind the tree and raped her.   Another attack occurred approximately five

years later, involving a different victim. Victim two was unavailable to testify at trial

because she had been murdered.      Her medical records documented her recounting of

events that occurred.   She stated that she was walking home when a car pulled up and an

unknown individual told her to get into the car or he would hurt her. She complied.

She was hit in the head with a brick and raped.   Sexual assault kits were performed on
both victims. DNA testing revealed that the defendant’s DNA was consistent with that

of the attacker in both victims. Id. at ¶ 3-5.

       {¶49} On appeal, Echols argued that each rape conviction should have merged

with each kidnapping conviction. Relying on Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892 and Logan, 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979), we found

that the asportation of victim one was slight, stating:

       Victim one was moved from the sidewalk to behind a tree next to the
       sidewalk. There was no increased risk of harm associated with this
       movement apart from that associated with the sexual assault. This
       movement was done for the purpose of raping [victim one] with no
       separate, identifiable harm. The movement was done in conjunction with
       the rape, and was not separated by any significant length of time or
       distance.

Id. at ¶ 38.   We concluded that because “the movement was slight, occurred close in

time to the rape, and was done solely to facilitate the rape[,] the trial court erred when it

failed to merge the rape and kidnapping counts related to [victim one].” Id. at ¶ 39.

       {¶50} We contrasted victim one’s movement with the movement of victim two,

who was abducted from the bus stop. With victim two, the defendant forced her to get

into his vehicle, hit her with a brick once in the car, and he drove her away from the area.

 We found that the “asportation of [victim two] constituted a separate crime for which

[defendant] may be separately punished.” Id. at ¶ 40.

       {¶51} After careful consideration, we find Echols to be applicable, but factually

distinguishable from the circumstances presented in this case. As with victim one in

Echols, the movement of T.M. was slight and occurred close in time to the rape.
Analogous to the movement of victim one “from the sidewalk to a tree,” the testimony

presented in this case established that T.M. was moved from the sidewalk to a nearby

alleyway, or “the cut.”     The record indicates that the alleyway was not far from where

T.M. had been walking. Thus, the restraint of T.M. was not prolonged, nor was the

movement substantial enough to demonstrate a separate animus for the kidnapping and

for the rape under Logan.

       {¶52} As mentioned above, however, the Logan decision went on to state that

“[w]here 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.”   (Emphasis added.) Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345, at

syllabus. In this case, T.M. was knocked unconscious during her movement into the

alleyway.   Although the asportation was limited, Asadi-Ousley’s commission of the

“dissimilar” felonious assault offense during his movement of T.M. rendered her

defenseless and, in our view, subjected her to an increased risk of harm that was separate

and apart from that involved in the underlying rape.      Under these circumstances, the

kidnapping offense ceased to be incidental to the underlying rape from which it might

have originated. See State v. Jones, 10th Dist. Franklin No. 15AP-670, 2017-Ohio-1168

(holding that defendant’s blows to victim’s head which knocked her to the floor and

rendered her unconscious constituted substantial increases in the risk of harm separate

and apart from the force involved in raping a victim); State v. Terrell, 1st Dist. Hamilton
No. C-080286, 2009-Ohio-3257 (holding that victim was subjected to a substantial

increase in risk of harm separate and apart from rape when victim was struck in the face

and moved to a nearby grassy area where a rape occurred).        Accordingly, we find there

was “a separate animus as to each offense sufficient to support separate convictions” for

kidnapping and rape.

       {¶53} Based on the foregoing, we cannot conclude that the trial court committed

plain error by failing to merge Asadi-Ousley’s convictions for purposes of sentencing.

For these same reasons, Asadi-Ousley’s ineffective assistance of counsel claim fails under

the second prong of the Strickland test.        Asadi-Ousley cannot show a reasonable

probability that but for defense counsel’s failure to request merger of his convictions at

sentencing, the result of the proceedings would have been different.

       {¶54} Accordingly, Asadi-Ousley’s fourth and fifth assignments of error are

overruled.

       {¶55} Judgment is affirmed.

       It is ordered that appellee recover of 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.

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

the Rules of Appellate Procedure.


_______________________________________
EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., CONCURS;
MARY EILEEN KILBANE, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE
ATTACHED OPINION




MARY EILEEN KILBANE, J., CONCURRING IN JUDGMENT ONLY:

      {¶56} I respectfully concur in judgment only with the majority’s decision to affirm

Asadi-Ousley’s convictions and sentence.     I write separately to briefly address the

applicability of Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, to the

majority’s merger analysis.

      {¶57} The majority concludes that the facts surrounding victim one are analogous

to the instant case, finding that the restraint of T.M. was not prolonged, nor was the

movement substantial enough to demonstrate a separate animus. Whereas, I would find

that the facts surrounding T.M.’s attack are more analogous to victim two in Echols. The

facts in Echols reveal that the defendant forced victim two into a car and drove her to

another location, where he committed the rape.

      {¶58} Here, the inception of the crime was when T.M. was approached from

behind by knife point as she was walking down the street. This act caused her to submit

to being dragged into a secluded alleyway, behind a beauty supply store (kidnapping),

where she was knocked unconscious by a blow to the head and then raped. Specifically,

Asadi-Ousley forcibly moved T.M. at knife point from a publicly visible area into a
concealed alleyway, behind a beauty supply store, where he was more easily able to

perpetrate the rape of an unconscious T.M. T.M. then awoke to find herself on the

ground with her lip and nose bleeding, her shirt ripped open, and her pants and underwear

pulled down. This movement, just as the movement of victim two, constituted a separate

crime for which Asadi-Ousley may be separately punished. The movement was not

slight, T.M. was removed from her location and dragged to a secluded area, and the

confinement was attempted to be kept secret, subjecting T.M. to a substantial increase in

harm separate from the rape.

      {¶59} While I do not find the asportation was limited, I agree with the majority’s

conclusion that the offenses do not merge for the purposes of sentencing. As a result, I

would affirm the trial court’s judgment.
