[Cite as State v. McClain, 2014-Ohio-93.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee/              :
                 Cross-Appellant,                                  No. 13AP-347
                                                  :              (C.P.C. No. 12CR-5149)
v.
                                                  :           (REGULAR CALENDAR)
Ashon McClain,
                                                  :
                 Defendant-Appellant/
                 Cross-Appellee.                  :




                                            D E C I S I O N

                                    Rendered on January 14, 2014



                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee/cross-appellant.

                 Nemann Law Offices and Adam               Lee     Nemann,     for
                 appellant/cross-appellee.

                   APPEAL from the Franklin County Court of Common Pleas

O'GRADY, J.

        {¶ 1} Defendant-appellant/cross-appellee, Ashon McClain, appeals from a
judgment of the Franklin County Court of Common Pleas finding him guilty of abduction
and domestic violence, merging the offenses, and sentencing him for domestic violence.
Plaintiff-appellee/cross-appellant, State of Ohio, cross-appeals from the judgment
arguing the trial court erred by merging these offenses. For the following reasons, we
affirm the trial court's findings of guilt, but reverse McClain's sentence and remand for
resentencing.
No. 13AP-347                                                                                2




I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} McClain was indicted on one count of abduction, in violation of R.C.
2905.02(A)(2), and one count of domestic violence, in violation of R.C. 2919.25(A) and
(D)(4). McClain pleaded not guilty to the charges and waived his right to a jury trial.
       {¶ 3} At the bench trial, Christina Palmer testified she met McClain in March
2012, and they immediately started dating. In May or June 2012, she moved in with him
into a house on Kossuth Street. McClain went to jail for a short time because of domestic
violence against her, but she still lived with him after he got out. In June 2012, Palmer
was convicted of a fifth-degree felony theft offense and was still on probation at the time
of trial. She was in jail from mid-August to the end of September 2012. After she got out
of jail, she and McClain stayed with his aunt, so they lived together again but at a different
address.
       {¶ 4} On the evening of October 1, 2012, Palmer and McClain used cocaine at his
aunt's home and McClain also drank beer. Palmer probably had a line or two of cocaine
every hour for about five or six hours. Around midnight, she and McClain left because
McClain got into a fight with his aunt and her boyfriend. Palmer and McClain visited an
acquaintance of McClain's, who might have been his uncle. About 20 minutes after they
arrived at the uncle's apartment, McClain told Palmer she was making him angry, called
her an array of names, and punched her thigh with a closed fist.
       {¶ 5} Palmer got up, put her hoodie on, grabbed her purse, left, and walked away
from the apartment. She made it past about three apartment buildings when McClain
caught up to her and tackled her on the sidewalk. McClain put his knee on her thigh and
wrapped his hands around her neck. He punched her in the face about three times, pulled
her hair out, and choked her. Palmer felt her rib crack under his knee. She could not get
away and was terrified. She screamed for help, and a man came to her aid with a big knife
and told McClain to get off of her. McClain did, and Palmer ran towards an apartment
building. Palmer, McClain, and the man with the knife stayed on the scene until police
and medics arrived. Medics advised her to go to the hospital, but she did not. Palmer
testified that, due to the incident, her elbow was swollen. The next day, she had bruising
under her eye and, later, a doctor said she had a broken rib. Palmer admitted there may
No. 13AP-347                                                                               3


have been times during the evening when she was "fuzzy" from drugs but claimed she was
"more alert than not." (Tr. Vol. I, 63.) She had no drugs for at least one hour before
McClain first struck her.
       {¶ 6} On cross-examination, Palmer testified that at the time she met McClain she
was temporarily staying with a friend. She had an apartment on Spruce Drive she shared
with a boyfriend, but they were splitting up. Most of her possessions were at Spruce Drive
until she moved in with McClain on Kossuth. Palmer did not know who was on the
Kossuth Street lease. She admitted she owned none of the furniture at the Kossuth Street
address but claimed she did have household items there, like pictures on the wall. Palmer
admitted when the incident with McClain occurred, she might have given police her
father's address as her own because she got mail there. She also admitted that in July
2012 she tried to get a protection order against McClain and gave her father's address as
her own in that proceeding.
       {¶ 7} Officer Darryl Holland with the Columbus Police Department responded to
the scene of the incident between Palmer and McClain. He testified Palmer was upset,
had some redness around her cheeks, and was crying.
       {¶ 8} Adam Parsons testified that in the early morning of October 2, 2012, he and
his wife, Miriam Green, heard what sounded like a man and woman screaming outside
their apartment. Parsons and Green looked out the window, and Parsons saw a woman
balled up on the ground and a man on top of her. The man seemed to be restraining her,
but Parsons could not tell if he was harming her or potentially trying to pick her up.
Parsons called 911. He then saw his downstairs neighbor, Terry, intervene with a large
knife or machete. Terry separated the man and woman shortly before police arrived.
       {¶ 9} Green heard a woman "crying in distress, get off of me, get off of me." (Tr.
Vol. I, 103.) She saw two people outsideone on the ground and the other bending over
the person on the ground. Green could not see well because she was not wearing her
glasses or contacts. She could not tell if the man was trying to help or harm the woman.
       {¶ 10} Over McClain's objection, the trial court admitted into evidence a recording
of a 911 call by Terry Simmons, the man who aided Palmer. On the recording, a woman is
making distressed sounding noises, and it appears Simmons is telling McClain to "back up
off of her now," that he is going to jail, and that nobody "deserves * * * that." (State's
No. 13AP-347                                                                               4


exhibit No. 8.) Simmons later tells the 911 operator the man is "drunk" and "beating the
hell out of this girl." (State's exhibit No. 8.) Additionally, Simmons indicates he separated
the man and woman by threatening the man with a machete.
       {¶ 11} The trial court found McClain guilty of both counts.         Over the state's
objection, the trial court found the counts merged for purposes of sentencing. At the
state's election, the trial court sentenced McClain on the domestic violence count to three
years in prison.
II. ASSIGNMENTS OF ERROR
       {¶ 12} McClain appeals and presents this court with three assignments of error for
our review:
               First Assignment of Error:

               THE TRIAL COURT COMMITTED ERROR WHEN IT
               ADMITTED THE 911 TELEPHONE CALL AS AN "EXCITED
               UTTERANCE" TO THE HEARSAY EXCEPTION.

               Second Assignment of Error:

               THE VERDICT WAS AGAINST THE MANIFEST WEIGHT
               OF THE EVIDENCE.

               Third Assignment of Error:

               THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
               VERDICT OF GUILTY.

       {¶ 13} The state cross-appeals and presents this court with one cross-assignment
of error for our review:
               THE TRIAL COURT ERRED IN MERGING                          THE
               ABDUCTION AND DOMESTIC-VIOLENCE COUNTS.

III. DISCUSSION
       A. Admission of 911 Recording
       {¶ 14} Under his first assignment of error, McClain contends the trial court erred
when it admitted the recording of Simmons' 911 call into evidence.
       {¶ 15} The trial court found the Confrontation Clause of the Sixth Amendment to
the United States Constitution ("Confrontation Clause") did not prohibit the admission
because Simmons' statements were not testimonial. The trial court also found, under
No. 13AP-347                                                                             5


state evidentiary rules, the recording was admissible based on the excited utterance
exception to the hearsay rule. In the assigned error, McClain specifically mentions the
excited utterance ruling but not the Confrontation Clause ruling. Nonetheless, much of
his argument is dedicated to the Confrontation Clause. Although, under App.R. 12(A), we
are to determine the appeal on the assignments of error set forth in the briefs, in the
interests of justice we will address McClain's Confrontation Clause argument in addition
to his excited utterance argument.
       {¶ 16} McClain argues the Confrontation Clause prohibits admission of the
recording. The Confrontation Clause provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right * * * to be confronted with the witnesses against him."
"[T]he Confrontation Clause bars admission of testimonial statements unless the witness
appears at trial or, if the witness is unavailable, the accused had a prior opportunity for
cross-examination." State v. Clark, ___ Ohio St.3d ___, 2013-Ohio-4731, ¶ 19, citing
Crawford v. Washington, 541 U.S. 36, 59 (2004). "The Confrontation Clause does not
apply to nontestimonial hearsay." State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-
2735, ¶ 29, citing State v. Cassell, 10th Dist. No. 08AP–1093, 2010-Ohio-1881, ¶ 24, citing
Crawford at 68. " 'We review a claim that a criminal defendant's rights have been
violated under the Confrontation Clause de novo.' " State v. Dennison, 10th Dist. No.
12AP-718, 2013-Ohio-5535, ¶ 61, quoting State v. Arnold, 10th Dist. No. 07AP-789, 2008-
Ohio-3471, ¶ 9, rev'd in part on other grounds, 126 Ohio St.3d 290, 2010-Ohio-2742.
       {¶ 17} In Crawford, the United States Supreme Court "did not expressly define
'testimonial statements,' but it indicated the term at least included ex parte in-court
testimony or its functional equivalent, extrajudicial statements contained in formalized
testimonial materials such as affidavits and depositions, and 'statements that were made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.' " State v. Marrero, 10th Dist. No.
10AP-344, 2011-Ohio-1390, ¶ 33, quoting Crawford at 51-52, quoting Brief for National
Assoc. of Criminal Defense Lawyers as Amici Curiae, 3.
       {¶ 18} Two years after Crawford, the United States Supreme Court revisited the
issue of testimonial statements in the consolidated cases of Davis v. Washington and
Hammon v. Indiana, 547 U.S. 813 (2006). As the Supreme Court of Ohio has explained:
No. 13AP-347                                                                             6


               Both cases involved statements by domestic-violence victims
               who did not testify at trial: in Davis, the victim made
               statements to a 9–1–1 operator identifying her assailant and
               describing his whereabouts immediately after an assault,
               whereas in Hammon, the victim made statements to police
               officers responding to a domestic-violence complaint after
               they had secured the scene. In those cases, the court
               distinguished police interrogations that relate to an ongoing
               emergency from those that relate to past criminal conduct. In
               considering whether the statements made in the context of
               those two different situations were testimonial, the court
               formulated the primary-purpose test: "Statements are
               nontestimonial when made in the course of police
               interrogation under circumstances objectively indicating that
               the primary purpose of the interrogation is to enable police
               assistance to meet an ongoing emergency. They are
               testimonial when the circumstances objectively indicate that
               there is no such ongoing emergency, and that the primary
               purpose of the interrogation is to establish or prove past
               events potentially relevant to later criminal prosecution."

Clark at ¶ 20, quoting Davis at 822.
       {¶ 19} The United States Supreme Court assumed, without deciding, that the acts
of a 911 operator constituted acts of police. Davis at 823, fn. 2. Applying the primary-
purpose test in Davis, the Supreme Court of Ohio found the objective circumstances
surrounding the victim's interrogation by the 911 operator indicated " 'its primary purpose
was to enable police assistance to meet an ongoing emergency.' " Clark at ¶ 21. The
United States Supreme Court explained: (1) the victim's statements described events as
they were happening, as opposed to explaining events that had happened in the past, (2)
any reasonable listener would conclude the statements were made in the face of an
ongoing emergency, (3) the interrogation was objectively necessary to resolve the ongoing
emergency, and (4) the interrogation was informal because the interrogation was
conducted over the phone and the answers were provided frantically while the victim was
in an unsafe environment. Davis at 827. In sum, the victim "simply was not acting as a
witness; she was not testifying." (Emphasis sic.) Id. at 828. Accordingly, the victim's
statements were not testimonial and not barred by the Confrontation Clause. See id. at
829.
No. 13AP-347                                                                             7


       {¶ 20} Application of the primary-purpose test in Hammon produced a contrary
result: the United States Supreme Court concluded the victim's statements were
testimonial and barred by the Confrontation Clause. See id. at 830. There was "no
immediate threat" to the victim and "no emergency in progress" when police first
interacted with the victim. Id. at 829-30. When an officer later elicited the challenged
statements, police had separated the abusive husband from the wife. Id. at 830. In
addition, the court reasoned when the officer questioned the victim, he was "not seeking
to determine (as in Davis) 'what is happening,' but rather 'what happened.' "           Id.
"Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was
to investigate a possible crime." Id.
       {¶ 21} In addition, the Supreme Court of Ohio has adopted the "objective-witness
test" for evaluating "out-of-court statements made to a person who is not law
enforcement." State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 161. Such statements
are testimonial for Confrontation Clause purposes if made "under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial." State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482,
paragraph one of the syllabus, cited with approval in Jones at ¶ 161.
       {¶ 22} According to McClain, Simmons did not appear at trial even though he was
subpoenaed and available. McClain contends there was no ongoing emergency when
Simmons called 911, and McClain suggests the primary purpose of the 911 operator's
questions was to establish or prove past events potentially relevant to later criminal
prosecution. McClain argues he "was disarmed and had surrendered and backed away
from Ms. Palmer when the 911 phone call took place." (Appellant's brief, 12.) Therefore,
he did not pose a danger to "Palmer or anyone else." (Appellant's brief, 12.) He also
argues Palmer's injuries were "minor" based on Officer Holland's testimony that he only
observed some redness around Palmer's cheeks. (Appellant's brief, 11.)
       {¶ 23} The 911 recording is approximately 2 minutes and 30 seconds long. A
woman can be heard making distressed sounding noises at various times. In the first
minute and 20 seconds, Simmons only appears to make one statement directed toward
the 911 operator, telling her to "get somebody here now."          (State's exhibit No. 8.)
Simmons repeatedly tells someone, presumably McClain, to "back up off of her now."
No. 13AP-347                                                                                 8


(State's exhibit No. 8.) Simmons also tells McClain that he is going to jail and nobody
"deserves * * * that." (State's exhibit No. 8.) After 1 minute and 20 seconds, the operator
asks Simmons for a description of the man he is talking to. In response, Simmons tells
the operator he needs a cop there now. The operator tells Simmons police are on the way
and again asks for a description, which Simmons provides. Unprompted, Simmons then
tells the operator the man is "drunk" and "beating the hell out of this girl." (State's exhibit
No. 8.) Around 1 minute and 48 seconds into the call, the operator asks Simmons if the
man is still beating the woman. Simmons appears to indicate he separated the pair, but is
standing by with a machete.         Then Simmons yells, "yeah, you better run now,"
presumably to McClain. (State's exhibit No. 8.) At 2 minutes and 8 seconds, the operator
asks if the officers are there. Simmons makes some unclear statements before sirens can
be heard and the recording ends.
       {¶ 24} The 911 operator was not interrogating Simmons at all during the first
minute and 20 seconds of the recording. Instead, the recording simply captures the
events between McClain, Simmons, and Palmer as they were still unfolding. Even if
Simmons' statements during that time frame implicated a Confrontation Clause analysis,
we agree with the state's contention that we would have to apply the objective-witness test
to them. An objective witness would not reasonably believe Simmons' statements to
McClain would be available for later use at trial. Simmons made the statements in an
excited tone while trying to separate McClain from Palmer with a machete.               Thus,
Simmons' statements to McClain were not testimonial and, therefore, not barred by the
Confrontation Clause.
       {¶ 25} Eventually, the operator did ask Simmons to describe McClain and whether
McClain was still beating the woman. Even if we presume, like the Davis court, that the
acts of the 911 operator were the acts of police, Simmons' statements to the operator in
large part described events as they were happening. The operator's questions were
objectively necessary to assist police in finding the suspect and assessing the present
threat level. The operator's interrogation was informal, and any reasonable listener would
conclude Simmons' statements were made in the face of an ongoing emergency. The
interrogation occurred over the phone, and Simmons gave frantic, sometimes
unresponsive, answers to the operator's questions.         It is evident Simmons believed
No. 13AP-347                                                                                9


McClain was beating Palmer to the point Simmons felt compelled to intervene with a
machete. Palmer testified to more serious injuries than McClain acknowledges. Even
though it appears Simmons separated McClain and Palmer at one point, the environment
remained unsafe. Both McClain and Palmer stayed on the scene, and Simmons could not
know McClain's state of mind.        Thus, we conclude Simmons' statements to the 911
operator were not testimonial and, therefore, not barred by the Confrontation Clause.
       {¶ 26} Next, McClain contends the trial court erred in admitting Simmons'
recorded statements under state evidentiary rules under the hearsay exception for excited
utterances. "Hearsay" is a "statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted."   Evid.R. 801(C).    Although Evid.R. 802 provides hearsay generally is not
admissible, Evid.R. 803(2) sets forth an exception for excited utterances, or "statement[s]
relating to a startling event or condition made while the declarant [is] under the stress of
excitement caused by the event or condition." This exception applies regardless of the
declarant's availability as a witness. Evid.R. 803.
       {¶ 27} Ordinarily, the admission or exclusion of relevant evidence rests within the
trial court's sound discretion. State v. Sage, 31 Ohio St.3d 173, 180 (1987). An abuse of
discretion exists when the trial court has an unreasonable, arbitrary or unconscionable
attitude in reaching its decision. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 28} The Supreme Court of Ohio applies a four-part test to determine the
admissibility of hearsay statements as excited utterances. Jones at ¶ 166, quoting Potter
v. Baker, 162 Ohio St. 488 (1955), paragraph two of the syllabus. McClain does not argue
Simmons' statements do not meet the requirements of the four-part test. Instead, he
argues the trial court admitted the 911 call "without first listening to the recording" so the
court "was not in a position to decide whether the declarant was under the stress of a
startling event for the purposes of admissibility." (Appellant's brief, 15.) We disagree.
       {¶ 29} At trial, the parties made arguments with respect to the recording's
admissibility under the Confrontation Clause and state evidentiary rules. The trial court
indicated it did not believe the Confrontation Clause would prohibit admission of the
tape, but also indicated it could not rule on the state law evidentiary issues without
listening to the recording. The trial court told the parties:
No. 13AP-347                                                                                  10


               So what I'm going to do is at this point I'm going to accept the
               911. * * * I'm going to listen to it and decide whether or not
               after that I'm going to exclude it from my consideration or
               whether or not I'm going to include it as part of my
               consideration of the evidence.

(Tr. Vol. I, 118.) Later, while orally giving its verdict, the trial court stated: "I did have an
opportunity to review the 911. Based upon the tone of the caller on the 911, the Court
accepted it as an excited utterance and an exception to the Hearsay rule." (Tr. Vol. I, 147.)
Thus, contrary to McClain's contention, the trial court did listen to the recording before it
made an ultimate ruling on admissibility. Because McClain does not challenge the merits
of the trial court's excited utterance ruling, we need not address that issue.
        {¶ 30} McClain also argues the trial court could not admit the 911 call under the
present sense impression exception to the general rule precluding the admission of
hearsay. He did not raise this issue in the assigned error. In any event, the trial court did
not admit the recording under that exception, so we need not address McClain's
argument.
        {¶ 31} For the foregoing reasons, we overrule appellant's first assignment of error.
        B. Sufficiency and Manifest Weight of the Evidence
        {¶ 32} Next, we address McClain's second and third assignments of error together.
Under his second assignment of error, McClain contends the trial court's verdict was
against the manifest weight of the evidence. Under his third assignment of error, McClain
contends insufficient evidence exists to support the trial court's verdict.           Although
unclear, we interpret McClain's arguments as an attack on the trial court's findings of guilt
on both counts of the indictment even though the court ultimately only sentenced him on
one count.
        {¶ 33} "A claim of insufficient evidence invokes a due process concern and raises
the question whether the evidence is legally sufficient to support the verdict as a matter of
law."   State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 118, citing State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997). "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.' " Id., quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
No. 13AP-347                                                                                11


paragraph two of the syllabus, superseded by constitutional amendment on other grounds
as recognized in State v. Smith, 80 Ohio St.3d 89, 103 (1997), fn. 4.
       {¶ 34} "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25.
"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 * * * disagrees with the
factfinder's resolution of the conflicting testimony." Thompkins at 387, citing Tibbs v.
Florida, 457 U.S. 31, 42 (1982). " 'The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983). This discretionary authority " 'should be exercised only in the exceptional
case in which the evidence weighs heavily against the conviction.' " Id.
       {¶ 35} Additionally, "[t]he trier of fact is free to believe or disbelieve any or all of
the testimony presented" because it is "in the best position to take into account the
inconsistencies in the evidence, as well as the demeanor and manner of the witnesses, and
to determine which witnesses are more credible." State v. Bailey, 10th Dist. No. 12AP-
699, 2013-Ohio-3596, ¶ 23, citing In re C.S., 10th Dist. No. 11AP-667, 2012-Ohio-2988,
¶ 27. Thus, an appellate court must "give great deference to the trier of fact's
determination on the credibility of the witnesses." Id.
       {¶ 36} The trial court found McClain guilty of abduction, in violation of R.C.
2905.02(A)(2), which provides:
               No person, without privilege to do so, shall knowingly do any
               of the following: * * * (2) By force or threat, restrain the liberty
               of another person under circumstances that create a risk of
               physical harm to the victim or place the other person in fear[.]

See R.C. 2905.02(C) (making this offense a third-degree felony).
       {¶ 37} The trial court also found him guilty of domestic violence, in violation of
R.C. 2919.25(A), which states: "No person shall knowingly cause or attempt to cause
No. 13AP-347                                                                           12


physical harm to a family or household member." This offense was a third-degree felony
under R.C. 2919.25(D)(4) since McClain had previously pleaded guilty to or been
convicted of two or more offenses of domestic violence.          Under R.C. 2919.25(F)(1),
"[f]amily or household member" means any of the following:
               (a) Any of the following who is residing or has resided with
               the offender:

               (i) A spouse, a person living as a spouse, or a former spouse of
               the offender;

               ***

               (2) "Person living as a spouse" means a person who is living or
               has lived with the offender in a common law marital
               relationship, who otherwise is cohabiting with the offender, or
               who otherwise has cohabited with the offender within five
               years prior to the date of the alleged commission of the act in
               question.

       {¶ 38} With the exception of Palmer's status as a "[f]amily or household member"
for purposes of the domestic violence charge, McClain implicitly concedes the state
presented evidence which, if believed, would support the other essential elements of the
charged offenses. However, he complains the testimony of the state's witnesses was not
reliable.   Specifically, he complains Palmer's memory is not reliable because she:
(1) admitted to using drugs throughout the day of the incident, (2) admitted her
recollection of events was fuzzy, and (3) was unable to recall how she got to McClain's
uncle's home. Additionally, McClain argues Parsons and Green were unreliable because
they viewed the incident from 100-115 feet away, from a second story window, while it was
dark outside. Also, Green admitted she did not see what happened clearly because she
was not wearing her prescription lenses. McClain also argues that Parsons told a 911
operator he did not see McClain strike Palmer and believed McClain was attempting to
pick her up. McClain argues these statements are consistent with a theory that he was
actually aiding Palmer, who fell down "due to running around the streets of an unfamiliar
neighborhood while high on excessive amounts of cocaine." (Appellant's brief, 18.)
       {¶ 39} Regarding Palmer's status as a "[f]amily or household member," McClain
contends he and Palmer never lived together. He claims she "admitted that she 'lived and
No. 13AP-347                                                                              13


habituated at 1855 Spruce Drive' during trial." (Appellant's brief, 18.) McClain argues she
was not on the lease at his Kossuth Street address, did not own any furniture there, and
did not receive mail there. McClain asserts "[a]ll of her belongings remained at her
apartment at 1855 Spruce Drive." (Appellant's brief, 18.) In addition, McClain argues
Palmer gave police her father's address as her own the night of the incident, and admitted
she "occasionally stayed" at her father's address. (Appellant's brief, 19.) McClain argues
Palmer "never changed" her mailing address from her father's address. (Appellant's brief,
19.)   According to McClain, if he is guilty under these facts, "anyone who dates a
companion regularly in the state of Ohio is subject to a Domestic Violence situation in an
everyday argument that escalates." (Appellant's brief, 19.)
       {¶ 40} McClain's arguments are not persuasive. The trial court knew of Palmer's
drug use and still chose to believe her testimony, which the court was free to do. Palmer
testified she had no drugs for at least one hour before McClain first struck her. Although
she acknowledged there may have been times during the evening when she was "fuzzy"
from drug use, she testified she was "more alert than not." (Tr. Vol. I, 63.) The only detail
from the evening McClain points to that Palmer could not remember was whether they
took a cab to his uncle's home or a friend drove them. This is a very minor detail and does
not warrant rejection of all of Palmer's testimony.
       {¶ 41} Moreover, the trial court recognized the limited value of the testimony of
Parsons and Green, who readily admitted they were not sure whether McClain was trying
to help or hurt Palmer. However, as the trial court pointed out, their testimony was still
consistent with Palmer's testimony.       The fact that Parsons thought it was possible
McClain was trying to carry Palmer did not compel the trial court to find McClain was
aiding her in light of evidence to the contrary.
       {¶ 42} With regard to Palmer's status as a "[f]amily or household member," Palmer
did testify she formerly lived on Spruce Drive with a boyfriend. She claimed at the time
she met McClain, her belongings were at Spruce Drive but she was temporarily staying
with a friend because she was going through a break-up with the Spruce Drive boyfriend.
The fact that she was not on the Kossuth Street lease and did not own furniture there is
not dispositive. From Palmer's testimony, the trial court could conclude she was more
than just a "companion" McClain dated. Palmer unequivocally testified that she moved in
No. 13AP-347                                                                                 14


with McClain in May or June 2012 and that she brought household items with her. She
also testified that when this incident occurred, she had just gotten out of jail and was
living with Palmer again but at his aunt's house. Given the number of places Palmer lived
in 2012 (Spruce Drive, her friend's place, Kossuth Street with McClain, jail, and at
McClain's aunt's house), it is understandable that Palmer would use her father's
addressa stable addressas her mailing address.
       {¶ 43} Viewing the evidence in a light most favorable to the prosecution, we
conclude any rationale trier of fact could have found the state proved the essential
elements of abduction and domestic violence beyond a reasonable doubt. Palmer testified
she cohabitated with McClain at the time of the incident and before she went to jail, i.e.,
within five years prior to the incident. She testified he punched her in the thigh. Later, he
tackled her on a sidewalk, punched her in the face, pulled her hair, choked her, cracked
one of her ribs, and frightened her. The testimony of Parsons and Green is consistent
with Palmer's account, as is Simmons' 911 call. From this evidence, the trier of fact could
conclude McClain, without privilege to do so, knowingly restrained Palmer's liberty by
force under circumstances that placed her in fear and created a risk of physical harm to
her. The trier of fact could also conclude he knowingly caused or attempted to cause
physical harm to a family or household member. Thus, we find sufficient evidence exists
to support the trial court's findings of guilt. We overrule the third assignment of error.
       {¶ 44} In addition, reviewing the record as a whole, we cannot say the evidence
weighs heavily against the convictions, the trier of fact clearly lost its way, or a manifest
miscarriage of justice has occurred. The trial court was in the best position to determine
the credibility of the testimony presented. The trial court believed Palmer's testimony,
and we decline to substitute our judgment for that of the trial court in this case. Because
the trial court's findings of guilt are not against the manifest weight of the evidence, we
overrule the second assignment of error.
       C. Merger
       {¶ 45} Under its cross-assignment of error, the state contends the trial court erred
in merging the abduction and domestic violence counts.
       {¶ 46} R.C. 2941.25 provides:
No. 13AP-347                                                                           15


               (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.

" '[A] reviewing court should review the trial court's R.C. 2941.25 determination de
novo.' " State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 67, quoting State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1.
       {¶ 47} "In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Supreme
Court of Ohio reviewed and revised the analysis courts employ to determine whether
offenses are allied offenses of similar import under R.C. 2941.25." Roush at ¶ 67. Courts
must ask whether the offenses "can be committed by the same conduct" and "whether the
offenses were committed by the same conduct, i.e., 'a single act, committed with a single
state of mind.' " State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 49, quoting
State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in
judgment only). If the answer to both questions is yes, the court must merge the allied
offenses. Id. at ¶ 50. "Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has separate animus for each offense, then, according to
R.C. 2941.25(B), the offenses will not merge." (Emphasis sic.) Id. at ¶ 51.
       {¶ 48} The state maintains the Supreme Court's decision in Johnson left
untouched earlier decisions standing for the proposition that, in determining whether
multiple offenses share a similar import, courts are to compare the elements to determine
whether the commission of one offense will result in commission of the other offense.
However, we have previously rejected the state's argument and consistently applied the
Johnson analysis. State v. Bryant, 10th Dist. No. 12AP-703, 2013-Ohio-5105, ¶ 11; State
v. Damron, 10th Dist. No. 12AP-209, 2012-Ohio-5977, ¶ 11.
No. 13AP-347                                                                            16


       {¶ 49} Here, the trial court found the abduction and domestic violence counts
merged without making any findings. The state argues, in part, that McClain committed
these crimes separately. McClain contends his crimes constituted a single continuous act.
       {¶ 50} We agree McClain committed distinct and separate crimes. The trial court
specifically found Palmer's version of events credible. According to Palmer, she and
McClain cohabitated, and he punched her in the thigh while at his uncle's apartment.
Such evidence supports a domestic violence conviction, but not an abduction conviction.
After McClain punched Palmer, she got up, put her hoodie on, grabbed her purse, and
walked away from the apartment. She made it past about three apartment buildings
when McClain caught up to her, tackled her on the sidewalk, and punched her, among
other things. This separate evidence supports an abduction conviction (though it could
also support a second domestic violence conviction). McClain's actions did not constitute
a single, uninterrupted act. Contrary to what he suggests, Palmer did not simply run out
of the house when he punched her in the thigh with him in hot pursuit. Instead, Palmer
took time to collect her things and walked away from the apartment, so the offenses were
separated by time and occurred in different locations. See generally Damron at ¶ 24
(finding felonious assault and domestic violence convictions did not merge where
defendant committed multiple acts of abuse punctuated by interruptions).
       {¶ 51} Because McClain did not commit the abduction and domestic violence
offenses in a single act, the trial court erred when it merged them. We sustain the state's
single cross-assignment of error, reverse McClain's sentence, and remand for
resentencing.
IV. CONCLUSION
       {¶ 52} We overrule McClain's three assignments of error. We sustain the state's
single cross-assignment of error, reverse McClain's sentence, and remand for
resentencing consistent with this decision.
                                                              Judgment affirmed in part;
                                                   reversed in part, and cause remanded.

                             KLATT & CONNOR JJ., concur.
