State v. Uncapher, 2022-Ohio-1449

OPINION AND JUDGMENT ENTRY

JUDGMENT: Affirmed.

Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Chief Prosecuting Attorney, Criminal Division, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee

Atty. John P. Laczko, City Center One, Suite 975, 100 East Federal Street, Youngstown, Ohio 44503, for Defendant-Appellant.

Dated: March 25, 2022

WAITE, J.

{¶1} Appellant, Daniel Uncapher, appeals the December 16, 2019, judgment entry of the Mahoning County Court of Common Pleas regarding his convictions for kidnapping and abduction. Based on the following, the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} On September 3, 2019, Marissa Rodriguez (“the victim”) and Appellant began conversing online using Facebook Messenger. After exchanging messages for about a month, the two met in person and began dating. The victim resided with her two children, ages four and 18 months, during this time. On September 26, 2019, the victim invited Appellant to her home for dinner. Appellant declined the invitation. However, at around 11:30 p.m. that night Appellant texted the victim, telling her that he was on his way to her home. The victim did not object to Appellant’s visit. The victim’s two young children were asleep upstairs.

{¶3} The victim and Appellant gave differing accounts of what transpired after Appellant arrived. According to the victim’s testimony at trial, when Appellant arrived, she immediately noticed that he smelled strongly of alcohol and had brought a bottle of wine with him. The two sat on her couch and talked. Appellant kept repeating over and over that his ex-girlfriend was “sleeping with her father.” (12/9/19 Tr., p. 226.) The victim began to become alarmed by Appellant’s behavior and asked him to leave. (12/9/19 Tr., p. 226.) By that point, Appellant was “getting clumsy” and spilling alcohol on her couch. (12/9/19 Tr., p. 226.) Appellant moved to the floor but continued to spill alcohol, so the victim got up and went to the kitchen to get a towel to clean up the spills. Appellant followed her into the kitchen. When the victim attempted to return to the living room, Appellant blocked the doorway with his arm. She attempted to return to the living room several times, and each time Appellant pushed her backward into the kitchen countertop “really hard.” (12/9/19 Tr., p. 227.) Appellant told the victim, “you’re not f**king going anywhere.” (12/9/19 Tr., p. 227.) The victim testified at trial that by this time she was “terrified” and “knew that something bad was going to start happening.” (12/9/19 Tr., p. 227.) After several minutes of pushing, the victim went to a kitchen door which led outside and attempted to leave. Appellant closed the door on the victim’s arm, and she began yelling for her neighbors to call the police through the opening of the door. (12/9/19 Tr., p. 227.) Appellant pulled the victim back inside, closed and locked the door, and took the victim by the throat and began choking her. (12/9/19 Tr., p. 228.) He lifted the victim by her throat and “push[ed] [her] head into [the] window,” after which she fell to the ground. (12/9/19 Tr., p. 228.) She again started screaming for help. Appellant told her she was “acting crazy,” picked her up off of the floor, and shoved her against the sink, biting her face on the right cheek under her eye. (12/9/19 Tr., p. 228.)

{¶4} The victim testified that she believed Appellant was going to kill her and was worried about what he might do to her children. (12/9/19 Tr., p. 229.) The victim also testified that “the whole time he was smiling at me and laughing at me while he was doing this, and grinding his teeth really loud.” (12/9/19 Tr., p. 229.) After biting the victim’s face, Appellant turned her around so that her back was against his chest and put one hand on her throat and one hand over her nose and mouth. The victim testified that she could not breathe and was trying to kick and squirm away. Appellant turned her around, picked her up and threw her across the kitchen. She hit the counter and stove, landing on the floor. The victim remained on the floor “begging him to stop and asking him why are you doing this to me, what did I do,” while Appellant “was just laughing the whole time.” (12/9/19 Tr., p. 230.) The victim asked Appellant to use the bathroom, telling him she might urinate on herself if he did not let her go. Appellant eventually allowed the victim to go upstairs to the bathroom. On her way up the stairs, she took her phone from the end table in the living room and hid it under her shirt. Once in the bathroom, the victim texted a friend, “Dont text back call the cops and send them to 1809 oak hill Ave danny is beating me up now hurry.” (State’s Exh. 11.) A screenshot of the text message was admitted into evidence at trial. Appellant silenced her phone and placed it under some folded laundry that was lying on the back of the toilet as she heard Appellant coming up the stairs. While hiding the phone, she turned around and saw Appellant standing in the bathroom. He refused to leave the bathroom and made her use the toilet while he watched. The victim was concerned about her children’s bedroom being in such close proximity to the bathroom, so she “tried to beg him to go down the stairs with me.” (12/9/19 Tr., p. 232.) She eventually convinced him, and the two went back down to the couch where Appellant began rocking back and forth and repeating “we’re going to kill this bitch” to the victim. (12/9/19 Tr., p. 233.) The victim testified that she was “terrified” and “I really honestly believed he was going to kill me. There was no doubt in my mind.” (12/9/19 Tr., p. 233.) Appellant ordered the victim to stand and take off her pants. Appellant then got on the floor in front of the victim, squeezed her ankles “as hard as he could and asking if it hurt, and then he had bit me on my right inner thigh.” (12/9/19 Tr., p. 234.) The victim heard her 18-month-old coughing upstairs and, afraid he was choking, asked Appellant if she could go and check on the child. Appellant blocked her with his arm but the victim managed to push his arm out of the way. On her way to the children’s room, she retrieved her phone from the bathroom. After checking on the child and realizing the bedroom door did not lock, the victim pushed the child’s crib against the door and called 911. The victim remained in the bedroom with her children until she heard the police arrive and eventually restrain Appellant. After asking the police if it was okay to come down, she returned to the living room to speak to three officers from the Youngstown Police Department. Appellant was in the police cruiser where she could see him “smashing his head off the window and saying that he was going to kill me.” (12/9/19 Tr., p. 240.) Two female EMTs arrived on the scene to examine the victim. The victim testified that she “had a really big knot on the back of my head from when [Appellant] had thrown me on the ground in my kitchen. I had a really bad migraine because of that. And then my face was just throbbing, and I didn’t know what it looked like at that point, but I know he bit me * * * and then my arms from when he threw me.” (12/9/19 Tr., p. 241.) They advised her to go to the hospital but the victim refused because she did not want to wake her children and take them to the hospital with her. Photographs of the victim’s injuries were admitted into evidence at trial.

{¶5} The victim returned to her home town in New York with her children one week after the incident, where she sought medical care for her injuries. As she had also heard that Appellant had HIV, she sought testing. The victim received physical therapy for her back injury and possible nerve injury. She testified that before this incident occurred, she had undergone hernia surgery. According to the victim’s testimony, injuries sustained during the incident required her to have a second hernia surgery. (12/9/19 Tr., p. 262.)

{¶6} The state presented the testimony of Detective Sergeant Anthony Vitullo (“Vitullo”) and Officer Gregory Tackett (“Tackett”) of the Youngstown Police Department, and Thomas Phillips (“Phillips”) of the Akron Police Department. Vitullo testified that after being assigned to the case, he interviewed the victim and took photographs of her injuries. He noticed a visible bite mark on the victim’s face. She told him about the bite on her inner thigh and Vitullo agreed to allow the victim to take the picture herself and send it to him. The state presented three photographs of the victim taken on the day of the incident. The first photograph was a headshot of the victim. The second photograph was a picture of the bite mark on the victim’s right cheek under her eye. The third photograph was a close-up of this bite mark. Vitullo testified that he could not see any teeth marks in the wound but that it looked like other human bite wounds he had seen during his approximate 25-year tenure as a police officer.

{¶7} Tackett testified that he was one of the responding officers called to the scene on the day of the incident. Tackett testified the 911 dispatcher informed him that a female caller stated she was hiding in her house from a male who had assaulted her. Tackett and Phillips were in the same patrol car and responded to the call. Tackett testified, “[w]e went to the door where we could hear a male inside making incoherent noises, yells. Couldn’t really tell what he was saying.” (12/9/19 Tr., p. 323.) He said the front door was open slightly and they checked to see if it was obstructed before going in. Upon entering, they announced their presence as police and saw Appellant lying face down on the couch, yelling. Tackett ordered Appellant to sit up and noticed that Appellant’s penis was exposed. Appellant was ordered to cover up and the officers detained him, placing him in handcuffs to further the investigation. Tackett testified that Appellant “was just screaming nonsensical things towards us. We could smell a very heavy, potent odor of alcohol coming from his person, and his speech was slurred, just kept asking why we were there and screaming nonsensical things.” (12/9/19 Tr., p. 327.) After Appellant was detained in the back of the police cruiser, “[h]e began to scream at [Tackett] and Officer Phillips that he wanted to have sexual intercourse with us.” (12/9/19 Tr., p. 328.) Other officers arrived on the scene. Tackett went back into the house and made contact with the victim. He noted she was calm, “but almost in a state of shock or disbelief of what had happened that night, it appeared.” (12/9/19 Tr., p. 329.) Tackett observed a bite mark on the victim’s face and a handprint on her neck. When he returned to the police cruiser Appellant was still screaming erratically and repeating that he wanted to have sexual intercourse with the officers. Appellant also threatened to kill the officers and the victim.

{¶8} Phillips, a former Youngstown Police Officer now employed with the Akron Police Department, testified that he responded to the call with Officer Tackett. Phillips confirmed that Appellant was face down making indiscernible noises when they arrived and that he had to be instructed to cover himself. Phillips also confirmed that Appellant repeatedly stated he was going to have sexual intercourse with the officers and intended to kill the officers and the victim. He also stated that Appellant threatened to kill the officers’ families. Phillips observed “a very plain -- very plain and clearly appeared to be a bite mark on [the victim’s] cheek” as well as “red marks in the shape of fingers wrapped around her throat.” (12/9/19 Tr., pp. 362-363.)

{¶9} Appellant testified at trial. According to his version of events, “[t]his was a big drug offense -- drug case gone wild.” (12/9/19 Tr., p. 417.) Appellant contended he and the victim were smoking crack cocaine together, which resulted in a violent argument when they ran out of the drug. Appellant began his direct testimony by stating that he dropped out of high school in the tenth grade because of his drug and alcohol addiction. He testified that on the day of the incident he was at a friend’s house drinking from about noon until 6:30 p.m. Afterward he went home, ate dinner, and cut wood for his fire pit. He had received a few text messages from the victim throughout the day asking him to come to dinner. He decided to go to the victim’s house at around 11:30 p.m. on the night of the incident. He stopped to buy beer and another kind of alcohol on the way to the victim’s home. When he arrived at the victim’s home, the two started, “exchanging energy” and were happy to see each other because they “were more or less dating.” (12/9/19 Tr., p. 411.) The two started smoking crack cocaine together in the living room. He testified that his highs would last only 15 to 20 minutes and then he would need to smoke again. According to Appellant:

So as me and [the victim] are smoking, we got into an argument. So the argument arose out of -- I actually had a girlfriend, okay? And we started arguing about the fact that it wasn’t right for me to be sneaking around behind closed doors with another woman. So this is the initial introduction of the argument that happened, sir.

* * *

So we went from that into kind of just still hanging and partying, smoking. But the next instance is, you know, getting -- getting low on drugs was -- she was smoking, and I came out here, and I told her, I said, look, give me -- give me the pipe; I’m going to smoke, you know. And that’s when -- that’s when the initial assault had taken place.

(12/9/19 Tr., pp. 413-414.)

{¶10} Appellant admitted his assault of the victim:

I had grabbed [the victim], and I told her that -- to give me the pipe because I wanted to continue to get high and there was only so much drugs left. So at that point that’s when we started -- the assault had happened. So I’m saying, give me the pipe. She’s saying, no. She’s screaming, kicking, and going away, and I grabbed [the victim] and I’m forcefully taking -- trying to take the pipe out of her hands, and that’s when I initially had bit [the victim] on * * * [o]n her face.

(12/9/19 Tr., pp. 414-415.)

{¶11} Appellant denied biting the victim on her thigh and said that any mark on her thigh was from a previous consensual sexual encounter the night before. Despite his earlier testimony, he later said, “[t]here was never a time where I held [the victim] against her liberty.” (12/9/19 Tr., p. 471.) “[M]y intention was to just get the crack pipe from her and to be able to get away from her and continue to do my drugs and just -- I was coming -- you know, I was raging the drug.” (12/9/19 Tr., p. 415.) He denied following the victim into her kitchen, saying that instead he looked out of the living room window, smoking and feeling “paranoid,” while the victim was “running around.” (12/9/19 Tr., p. 416.) He testified that they both continued to use drugs that night and that he “didn’t know she was going to call the police.” (12/9/19 Tr., p. 416.) Appellant testified that he never went upstairs on the night of the incident. Appellant claimed the victim began acting “wildly” when he told her that he was in love with someone else. He said she took off her clothes and began telling him she hated him. He said the two then continued to “do the drugs” and that they “didn’t exchange very many words after the assault took place.” (12/9/19 Tr., p. 420.) A short time later, the victim “went upstairs for the night, and I didn’t think nothing of it so I was resting on the couch waiting -- I was awoken to the police at the door, sir.” (12/9/19 Tr., p. 420.) Appellant admitted he threatened the responding officers as they were taking him into custody, but said that he never told the officers he wanted to have sex with them.

{¶12} Appellant also testified about his extensive criminal record, including his prior prison term. He stated he has struggled with drug and alcohol addiction, but does not “blame” drugs, only his addiction to alcohol, which he claimed had been an issue since childhood. (12/9/19 Tr., p. 423.) Appellant was asked on direct if he abducted the victim, which he denied. He admitted he assaulted the victim, but claimed that he did not cause the victim serious physical harm. (12/9/19 Tr., p. 428.) When his counsel asked about the charge of aggravated menacing, Appellant replied, “I don’t exactly know the case laws to aggravated menacing, but I would say I may have menaced.” (12/9/19 Tr., p. 426.) Appellant blamed his rage on his drug use that night, saying “I didn’t intentionally instill fear into her, but no one was going to come in between me and my drug of choice.” (12/9/19 Tr., p. 426.)

{¶13} On cross-examination, Appellant was asked whether his contention was that the incident escalated because he had a girlfriend and was breaking up with the victim, or whether it escalated over their alleged argument regarding their supply of drugs. Appellant testified, “[n]o, the initial -- the initial of her getting mad was right there when we started having the conversation about I got to stop sneaking around -- around on my girlfriend. And then the next incident of that, that’s when the assault took place, was when we started fighting over the drugs, sir.” (12/9/19 Tr., p. 436.) When asked if he believed he caused any harm to the victim, Appellant replied, “I admit that I caused her harm, but I never caused her serious physical harm, no, sir.” (12/9/19 Tr., p. 436.) When asked about biting the victim Appellant stated, “[n]o, I mean, being bitten, that’s something serious that went on, you know? But that’s not – you seen the pictures yourself. It was minor infractions [sic] of what could have went on.” (12/9/19 Tr., p. 437.) “I told you that I grabbed her and I just took the pipe out of her hand, and I told you that I bit her -- it was -- I didn’t bite her to cause her harm. I bit her to know that I was serious to let go.” (12/9/19 Tr., pp. 438-439.)

{¶14} The victim testified on rebuttal that she saw no evidence of drug use when Appellant arrived, only alcohol. She stated she never used crack cocaine, and not with Appellant on that night or any other during their month-long relationship. On cross examination she testified that she had never personally seen Appellant use drugs but was aware of his alcohol use.

{¶15} Officer Tackett also testified on rebuttal. He stated that he had extensive experience arresting individuals for drug-related offenses, including crack cocaine. He also had extensive experience arresting intoxicated individuals. Tackett testified that there were no signs of drug use in the victim’s residence that evening. The incident appeared to be alcohol-related and not drug-related. (12/9/19 Tr., p. 498.) Finally, he said the victim did not exhibit any signs of drug use when he arrived at the scene.

{¶16} On October 24, 2019, Appellant was indicted on one count of kidnapping in violation of R.C. 2905.01(A)(3)(C)(1), a felony in the first degree; one count of abduction in violation of R.C. 2905.02(A)(2)(C), a felony of the third degree; one count of assault in violation of R.C. 2903.13(A)(C), a misdemeanor in the first degree; and one count of aggravated menacing in violation of R.C. 2903.21(A)(B), a misdemeanor of the first degree. A jury trial was held on December 9, 2019. The jury found Appellant guilty on all counts.

{¶17} A sentencing hearing was held on January 14, 2020. Appellant was sentenced to an indefinite term of 5 to 7½ years on Count 1, kidnapping, and 36 months for Count 2, abduction. The trial court and the parties agreed that Counts 1 and 2 should be merged for sentencing purposes, leaving a sentence of a total of 5 to 7½ years. In addition, Appellant was sentenced to 180 days for assault and 180 days for aggravated menacing. These were ordered to be served concurrently to one another and concurrent to the sentence on Counts 1 and 2, for a total indefinite term of 5 to 7½ years.

{¶18} Appellant filed this timely appeal.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT DUE TO THE FACT HIS CONVICTIONS FOR KIDNAPPING AND ABDUCTION WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶19} In his sole assignment, Appellant claims the state offered insufficient evidence to support his kidnapping and abduction convictions. He does not challenge the sufficiency of the evidence as to his assault and aggravated menacing convictions, nor does he raise any sentencing issue.

{¶20} “Sufficiency of the evidence is a legal question dealing with adequacy.” State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49 (7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “Sufficiency is a term of art meaning that legal standard which is applied to determine whether a case may go to the jury or whether evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Draper, 7th Dist. Jefferson No. 07 JE 45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). When reviewing a conviction for sufficiency of the evidence, a reviewing court does not determine “whether the state‘s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction.” State v. Rucci, 7th Dist. Mahoning No. 13 MA 34, 2015-Ohio-1882, ¶ 14, citing State v. Merritt, 7th Dist. Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 34.

{¶21} In reviewing a sufficiency of the evidence argument, the evidence and all rational inferences are evaluated in the light most favorable to the prosecution. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on the grounds of sufficiency unless the reviewing court determines no rational juror could have found the elements of the offense proven beyond a reasonable doubt. Id.

{¶22} Appellant was convicted of kidnapping pursuant to R.C. 2905.01(A)(3), (C)(1), which reads:

(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:

* * *

(3) To terrorize, or to inflict serious physical harm on the victim or another;

* * *

(C)(1) Whoever violates this section is guilty of kidnapping. Except as otherwise provided in this division or division (C)(2) or (3) of this section, kidnapping is a felony of the first degree. Except as otherwise provided in this division or division (C)(2) or (3) of this section, if an offender who violates division (A)(1) to (5), (B)(1), or (B)(2) of this section releases the victim in a safe place unharmed, kidnapping is a felony of the second degree.

{¶23} Appellant also argues there was insufficient evidence presented to support a conviction for abduction under R.C. 2905.02(A)(2), (C), which provides:

(A) 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;

* * *

(C) Whoever violates this section is guilty of abduction. A violation of division (A)(1) or (2) of this section or a violation of division (B) of this section involving conduct of the type described in division (A)(1) or (2) of this section is a felony of the third degree. A violation of division (A)(3) of this section or a violation of division (B) of this section involving conduct of the type described in division (A)(3) of this section is a felony of the second degree. If the offender in any case also is convicted of or pleads guilty to a specification as described in section 2941.1422 of the Revised Code that was included in the indictment, count in the indictment, or information charging the offense, the court shall sentence the offender to a mandatory prison term as provided in division (B)(7) of section 2929.14 of the Revised Code and shall order the offender to make restitution as provided in division (B)(8) of section 2929.18 of the Revised Code.

{¶24} In order to sufficiently support Appellant’s conviction for kidnapping, the state needed to present evidence that the victim was terrorized or that serious physical harm was inflicted. Appellant contends the state failed to introduce any evidence in this case that the victim was terrorized by Appellant or that serious physical harm was inflicted. Serious physical harm is defined as:

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;

(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(5)(a)–(e).

{¶25} Appellant argues the evidence did not demonstrate the victim suffered a serious physical injury. Since the victim did not go the hospital to seek treatment that night, instead waiting a week to be examined after moving back to New York, Appellant urges this proves her injuries were not serious. He also points to the fact that no medical records or expert medical testimony regarding the victim’s injuries were presented at trial. Further, Appellant claims the fact that the victim did not have any broken bones, his bite to her face did not break the skin to such an extent as to cause bleeding, and her injuries healed within a few weeks, are all evidence that he did not cause a serious physical injury.

{¶26} The degree of harm necessary to establish serious physical harm “is not an exact science, particularly when the definition includes such terms as ‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.’” State v. Irwin, 7th Dist. Mahoning No. 06 MA 20, 2007-Ohio-4996, ¶ 37. Moreover, the extent or degree of a victim’s injuries is “normally a matter of the weight rather than the sufficiency of the evidence.” Id.

{¶27} In the instant case, the jury could reasonably have found that the victim suffered serious physical harm. Testimony was presented that Appellant’s repeated slamming of the victim against the edge of the counter caused damage to the wound created by her recent surgery, requiring additional reparative surgery. The victim testified that she had a large swelling on the back of her head, a migraine, sore arms, and her face was throbbing and swollen from the bite. Additionally, the damage to the victim’s cheek under her right eye from the bite sustained from Appellant, which took weeks to heal, could have led the jury to conclude that it constituted a temporary, serious disfigurement. State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155, ¶ 38 (4th Dist.) (facial bruising and lip injury constituted temporary serious disfigurement resulting in substantial suffering.). Moreover, both responding officers noted red finger marks around the victim’s throat. Lastly, the victim testified that she was undergoing physical therapy due to the damage done to her back from being thrown by Appellant. The record reveals that the state presented sufficient evidence the victim suffered serious physical harm as a result of Appellant’s assault.

{¶28} Appellant also contends his conviction for kidnapping is unsupported because the state presented insufficient evidence that he terrorized the victim. Pursuant to R.C. 2905.01(A)(3)(C)(1), in order for Appellant to be convicted of kidnapping, the state was required to prove that Appellant restrained the physical liberty of the victim with the intent to “terrorize or cause serious physical harm.” R.C. 2905.01(A)(3). We have concluded above that the state presented sufficient evidence Appellant caused the victim serious physical harm to support the kidnapping conviction. A review of the record also shows that sufficient evidence exists supporting that the victim was terrorized by Appellant’s conduct. The word “terrorize” is not defined in the Revised Code. The Eighth and Tenth Districts have determined that “terrorize” is not a legal term, but should be treated as a common word. State v. Canter, 10th Dist. Franklin No. 01AP-531, 2002-Ohio-1347; State v. McDouglar, 8th Dist. Cuyahoga No. 86152, 2006-Ohio-100. The dictionary defines “terrorize” as “to fill with terror or anxiety.” State v. Leasure, 6th Dist. Lucas No. L-02-1207, 2003-Ohio-3987, quoting Merriam Webster’s Collegiate Dictionary, (10th Ed.1996) at 1217. The victim in this case testified that Appellant blocked the doorway of the kitchen and would not let her exit. He began to physically abuse her by throwing her, choking her, and biting her. Appellant closed the back door on her arm when she attempted to flee and then dragged her inside as she screamed to the neighbors to call the police. The victim also testified that, both prior to and after biting her face, Appellant was grinding his teeth in a menacing fashion while smiling and laughing at her. Her undisputed testimony reveals she had to undertake several evasive maneuvers to obtain her cell phone, communicate for help via text message, and hide the phone. Appellant intruded on her in the bathroom, forcing her to urinate while he watched. He made her remove her pants and then bit the inside of her thigh and kept repeating, “we’re going to kill this bitch[.]” (12/9/19 Tr., p. 233.) It is clear from her testimony that the victim feared for her own life for nearly the entire length of Appellant’s stay in her home that night. She also feared for the lives of her two small children. According to the responding officers, officers were informed that a woman was hiding in her home after being assaulted. Officer Tackett testified that the victim appeared stunned as if in shock once she came downstairs after hiding with her children in their bedroom. While Appellant asserts that the state, “never broached the topic of [the victim] being terrorized, (Appellant’s Brf., p. 7), a review of the transcript reveals this is clearly not the case:

[PROSECUTOR] What happened when you entered your kitchen?

[THE VICTIM] He had followed me in my kitchen, and when I went to bring [a towel to clean spilled alcohol] back in the living room, he wouldn’t let me out of the doorway of my kitchen at all.

[PROSECUTOR] Okay. What was he doing at that point?

[THE VICTIM] He was standing there with his arm in front of the doorway, and when I would try to get out, he kept pushing me back into my counter really hard.

[PROSECUTOR] Okay. Was he saying anything?

[THE VICTIM] He said, you’re not fucking going anywhere.

[PROSECUTOR] How were you feeling at this point?

[THE VICTIM] I was terrified. I knew that something bad was going to start happening, and I -- after he pushed me back a few times, I had started yelling. And I tried to open my back door to get out and he wouldn’t let me, and my arm was closed in it so I just screamed outside my back door, help me, call the cops, and hoping my neighbors would hear me. And he ripped me back in, closed the door, locked it, and then that’s when he started choking me.

(12/9/19 Tr., pp. 227-228.)

{¶29} The victim later testified that “I was still terrified for my life, and the whole time I just kept trying to think of how I was going to get away from him.” (12/9/19 Tr., p. 234.) The state also presented a screenshot of the text message the victim sent to her friend while hiding in the bathroom: “Dont text back call the cops and send them to 1809 oak hill Ave danny is beating me up now hurry.” (State’s Exh. 11.) Thus, not only did the state present direct testimony from the victim that she felt terrorized, it is also clear from all of the facts on the record that more than sufficient evidence was introduced to demonstrate Appellant terrorized the victim.

{¶30} Appellant contends the state failed to present sufficient evidence that he restrained the victim’s liberty, a required element for an abduction conviction. Restraining a person of their liberty is defined as limiting or restraining their freedom of movement. State v. Hackett, 7th Dist. Mahoning No. 17 MA 0106, 2019-Ohio-1091, ¶ 84. In her testimony, the victim provided evidence that Appellant restrained her liberty when he refused to allow her to leave the kitchen or to leave the house through the back door. Appellant also refused to let her go upstairs to use the bathroom for a length of time. She testified that after she was allowed to use the restroom, Appellant came upstairs, entered the bathroom unannounced and required her to use the bathroom in his presence. Appellant later refused to let her go upstairs to tend to her coughing child, and she was forced to push past him. It is established that “[t]he testimony of a single witness, if

believed by the trier of fact, is sufficient to support a conviction. State v. Mock, 187 Ohio App.3d 599, 609, 2010-Ohio-2747, 933 N.E.2d 270, ¶ 41 (7th Dist.). In addition, the testimony of a single witness is sufficient to prove a fact at issue even if that witness’s testimony is otherwise contradicted by other evidence. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 177.

{¶31} This record amply reveals that there was sufficient evidence of serious physical injury and that the victim was terrorized to support the kidnapping conviction, and that Appellant also restrained the liberty of the victim to support the abduction conviction. Appellant’s first assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT DUE TO THE FACT HIS CONVICTIONS [SIC] FOR KIDNAPPING AND WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶32} Appellant next challenges the weight of the evidence as to both his kidnapping and abduction convictions.

{¶33} Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. (Emphasis deleted.) Thompkins, 78 Ohio St.3d at 387. It is not a question of mathematics, but depends on the effect of the evidence in inducing belief. Id. Weight of the evidence involves the state‘s burden of persuasion. Id. at 390, 678 N.E.2d 541 (Cook, J. concurring). The appellate court reviews 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. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing Thompkins, at 387, 678 N.E.3d 541, 678 N.E.2d 541. This discretionary power of the appellate court to reverse a conviction is to be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id.

{¶34} [T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to weigh the evidence and judge the witnesses’ credibility by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The trier of fact is free to believe some, all, or none of each witness’ testimony and they may separate the credible parts of the testimony from the incredible parts. State v. Barnhart, 7th Dist. Jefferson No. 09 JE 15, 2010-Ohio-3282, ¶ 42, citing State v. Mastel, 26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971). When there are two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, we will not choose which one is more credible. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

{¶35} Regarding the kidnapping conviction, Appellant asserts that based on the evidence presented it was wholly unreasonable for the jury to conclude that Appellant caused serious physical harm or terrorized the victim pursuant to the kidnapping statute.

Appellant admitted at trial that he bit the victim’s face and pushed her to the floor. (12/9/19 Tr., p. 439.) He testified, I admit that I caused her harm, but I never caused her serious physical harm, no, sir. (12/9/19 Tr., p. 428.) Appellant’s theory at trial was that the incident was essentially a spat over drugs and that Appellant assaulted the victim due to his addiction to crack cocaine. The victim testified that she never saw Appellant smoke a drug that night and she certainly did not. There was no evidence of a crack pipe recovered from the scene and Officer Tackett testified that Appellant’s condition appeared to be related to alcohol abuse and not drug abuse. Regardless, the evidence presented by the state regarding serious physical harm to the victim included: the bite to her face directly under the right eye; the bite to the inner thigh; her migraines suffered since the incident; her back injury requiring physical therapy; and damage to the victim’s recent surgery site requiring another surgery to repair. Based on this, alone, the jury could reasonably conclude the victim suffered serious physical injury as a result of Appellant’s assault. The jury clearly found the victim’s testimony regarding her injuries to be credible.

{¶36} Appellant again claims that the state did not present any evidence the victim was terrorized. As earlier discussed, Appellant is mistaken in his assertion. The victim testified on direct examination that she felt terrorized and, in recounting the events of that evening, testified multiple times that she knew something bad was about to happen and that she was fearful for her own life and the safety of her children. (12/9/19 Tr., p. 228.) This evidence could certainly allow the jury to reasonably infer that Appellant terrorized the victim.

{¶37} Appellant argues his conviction for abduction is also against the manifest weight of the evidence. We note that the trial court merged abduction with the kidnapping conviction. Therefore, if the record supports the validity of his conviction for kidnapping, even if Appellant’s contention as to his abduction conviction was correct, any error in convicting him on this charge would be harmless. As noted in the first assignment of error, the evidence was sufficient to support his kidnapping conviction and it was not against the manifest weight of the evidence. Therefore, since the kidnapping and abduction convictions were merged for sentencing, Appellant received only one sentence for both and any error in his abduction charge would be harmless beyond a reasonable doubt. State v. Jones, 4th Dist. Hocking Nos. 20CA2, 20CA3, 20CA4, 2021-Ohio-2601, ¶ 42.

{¶38} Nevertheless, the record clearly supports Appellant’s conviction on abduction. Appellant restrained the victim from leaving her kitchen, from exiting through her back door and from going upstairs to use the bathroom. The jury did not lose its way in finding Appellant guilty of abduction so as to create a manifest injustice requiring reversal.

{¶39} Appellant’s second assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 3

THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

{¶40} Appellant argues that trial counsel was constitutionally ineffective during voir dire and for failing to object during the cross-examination of Appellant at trial.

{¶41} The two-part test for an ineffective assistance of counsel claim requires us to consider whether trial counsel‘s performance was deficient and, if so, whether the deficiency resulted in prejudice. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. In order to prove prejudice, [t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Lyons, 7th Dist. Belmont No. 14 BE 28, 2015-Ohio-3325, ¶ 11, citing, Strickland at 694. The appellant must affirmatively prove the alleged prejudice occurred. Id. at 693.

{¶42} As both are necessary, if one prong of the Strickland test is not met, an appellate court need not address the remaining prong. Id. at 697. The appellant bears the burden of proof on the issue of counsel‘s effectiveness, and in Ohio, a licensed attorney is presumed competent. State v. Carter, 7th Dist. Columbiana No. 2000-CO-32, 2001 WL 741571 (June 29, 2001), citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).

{¶43} Appellant takes issue with the following exchange which occurred between the judge and Prospective Juror Cristall:

THE COURT: Have any of you to the best of your recollection read or heard anything about this case?

Do you recall what newspaper -- I guess I don’t have to go there. Nobody heard anything about this case, right?

PROS. JUROR CRISTALL: I did on the news at one time. I seen him on the news before, a couple weeks ago, three weeks ago, on 21.

THE COURT: Okay. Based on the articles -- or the news coverage, is there anything that you recall regarding that coverage?

PROS. JUROR CRISTALL: No, just he was for kidnapping, so that’s all I really remember. It was like a month ago. Exactly what they -- he was in trouble. They showed us in his orange jumpsuit with his picture talking about --

THE COURT: All right. Did you -- all right. Before we go any further, I just want to make sure that there’s nothing that you saw that would affect the outcome of this case in your mind. In other words, can you be a fair and impartial juror based on what you saw in the media?

PROS. JUROR CRISTALL: What I saw in the media? I can be fair and impartial on that.

THE COURT: Counsel want to inquire?

[PROSECUTOR]: Your Honor, I can inquire during the voir dire session.

THE COURT: Gotcha. [Defense counsel], same?

[DEFENSE COUNSEL]: Yes.

(12/9/19 Tr., pp. 22-23.)

{¶44} Appellant contends the entire jury pool became tainted at this point when defense counsel failed to object to the questioning after such damning statements made by Prospective Juror Cristall. (Appellant’s Brf., p. 11.) Appellant also contends defense counsel fell short in failing to ask the trial court to question the entire jury pool to ensure the comments did not cause any bias or prejudice against Appellant. He claims that defense counsel’s failure to address the issue during the defense portion of voir dire; failure to ask the court for a curative instruction; and failure to move for a mistrial were all instances where he provided ineffective assistance.

{¶45} As noted by the state, directly after the complained-of exchange, the following occurred:

THE COURT: Okay. The lawyers will have an opportunity to question you a little more in depth about that, but that’s the main thing, we want to make sure that we get a fair and impartial jury. We want to make sure that there’s nothing you saw or remember that would affect the outcome. You have to remember that this defendant is, you know, innocent until proven guilty, and the state has a heavy burden. They have to show each and every one of these -- they have to prove each and every one of the elements of these offenses beyond a reasonable doubt, so that’s a tough standard for the state to prove, and we want to make sure that you don’t go into this case with any biases or prejudices. So keep that in mind.

All right. Have any of you formed or expressed an opinion as to the guilt or innocence of this particular defendant, including you Mr. Cristall?

* * *

PROS. JUROR CRISTALL: Not really, you know. I mean, it’s hard to say until you hear all the facts, to be honest with you.

(12/9/19 Tr., pp. 23-24.)

{¶46} None of the other prospective jurors responded in the affirmative to the trial court’s inquiry into whether they had formed an opinion of Appellant’s guilt or innocence. Appellant urges that his counsel had a duty after this exchange to question this particular juror in more depth, or in the alternative, to request a curative instruction or move for a mistrial. The threshold issue is whether this juror’s response to the judge’s question amounts to a sufficient admission of partiality to disqualify him from service. In cases where the juror’s response clearly indicates an inability to be impartial, that juror should be disqualified from serving. Hughes v. United States, 258 F.3d 453, 459-460 (6th Cir.2001). However, where a juror’s response is ambiguous, the speculation of possible bias is not sufficient to disqualify a juror or to have deemed to have tainted the jury pool. State v. Burkhart, 7th Dist. Belmont No. 80-B-11, 181 WL 4785, *3 (Sept. 22, 1981). Further, counsel is in the best position to determine whether any potential juror should be questioned and to what extent. State v. Murphy, 91 Ohio St.3d 516, 539, 747 N.E.2d 765 (2001). Voir dire decisions by counsel are subjective and prone to counsel strategy and generally should not be second-guessed. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 237. Appellant has not established that defense counsel’s performance fell below an objective standard of reasonable representation. Additionally, Appellant has not shown that he was prejudiced by the statement.

{¶47} Appellant also contends defense counsel’s performance was deficient for failing to object to the state’s questioning about Appellant’s tattoos. As there was never a question of identity in this case and no mention was made by the victim of the tattoos, the questions were improper. Appellant asserts the state only asked questions about Appellant’s tattoos to suggest that someone with facial tattoos is more likely to commit a crime. This exchange occurred during cross-examination of Appellant at trial:

[PROSECUTOR] When did you get your tattoos?

[DEFENDANT] I got these tattoos at different times in my life.

[PROSECUTOR] Okay. What’s the tattoo on your right cheek?

* * *

[DEFENDANT] Is this the parental advisory?

[PROSECUTOR] Uh-huh. Why did you get that tattoo?

[DEFENDANT] That is a record label tattoo. I sing for a living, and I do music for a living. That is -- so my albums are Parental Advisory Volume I, Volume II, Volume III.

[PROSECUTOR] Okay. Why did you get a gun then on the other cheek?

[DEFENDANT] Because when my brother died, I got the gun to significant [sic] his life, that’s what it means. He got killed in -- December 17th of 2017 he got shot and killed. So that gun was to signify his life.

[PROSECUTOR] So you got a parental advise tattoo and a gun on your face?

[DEFENDANT] Back when I used to be the person that I am not today, yes.

(12/9/19 Tr., pp. 450-451.)

{¶48} Appellant objects only to the portion of the cross-examination relative to the tattoos and contends trial counsel should have objected. When a claim for ineffective assistance of counsel is made based on a failure to file an objection or a motion, the appellant is required to demonstrate that the objection or motion, if made, had a reasonable probability of success. If the objection or motion would not have been successful, then the appellant cannot prevail on the ineffective assistance of counsel claim. State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577, ¶ 14 (4th Dist.). It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. State v. Bradley, 42 Ohio St.3d 136, 142, fn. 1, 538 N.E.2d 373, quoting Strickland, at 693.

{¶49} It is important to note that during his direct examination, Appellant offered testimony regarding his tattoos. In discussing his employment, he stated: Yes. I’m also a tattoo artist, and I’ve done a lot of -- a lot of like steel mill jobs. It was always pretty difficult to find work with the tattoos on my face, sir. So it was like steel mills, tattoo shops, things like that. (12/9/19 Tr., p. 407.) Appellant also testified extensively on direct about his prior criminal record, including time spent in prison. Where a defendant testifies on direct examination regarding the details of the crimes for which he was convicted, inquiries on cross-examination by the state are permissible because the defendant opened the door for the state to question him about those crimes. State v. Williams, 38 Ohio St.3d 346, 350, 528 N.E.2d 910 (1988). To the extent Appellant speculates the state was trying to link his tattoos to possible criminal activity, the state’s line of questioning, here, was still not impermissible. Most notably, Appellant has not shown that defense counsel was ineffective since the questioning was within the scope of direct examination and Appellant has failed to show that he was prejudiced by this line of questioning. Speculation aside, Appellant has not demonstrated that questions about facial tattoos are inherently indicative of a history of criminal activity. The testimony here elicited a response from Appellant that the tattoos related to his music career and the death of his brother. There is nothing obviously improper in either the questions or responses. Defense counsel was not constitutionally ineffective for failing to object to the state’s line of questioning regarding Appellant’s tattoos.

{¶50} This record does not support Appellant’s contention that he was deprived of the effective assistance of counsel in this matter. Appellant’s third assignment of error is without merit and is overruled.

{¶51} For the reasons stated above, Appellant’s assignments of error are without merit. The judgment of the trial court is affirmed.

Robb, J., concurs.

D’Apolito, J., concurs.

For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.

Case Details

Case Name: State v. Uncapher

Court Name: Ohio Court of Appeals, 7th District

Date Published: Mar 25, 2022

Citations: 2022-Ohio-1449; 20 MA 0017

Docket Number: 20 MA 0017

Court Abbreviation: Ohio Ct. App. 7th