State v. Smith

[Cite as State v. Smith, 2013-Ohio-756.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, ) CASE NO. 11 MA 120

)

PLAINTIFF-APPELLEE, )

)

VS. ) OPINION

)

SAMMIE SMITH, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas

Court, Case No. 09CR1197.

JUDGMENT: Affirmed in part; Reversed in Part;

Remanded.

APPEARANCES:

For Plaintiff-Appellee: Attorney Paul Gains

Prosecuting Attorney

Attorney Ralph Rivera

Assistant Prosecuting Attorney

21 West Boardman Street, 6th Floor

Youngstown, Ohio 44503

For Defendant-Appellant: Attorney Lynn Maro

7081 West Boulevard

Youngstown, Ohio 44512

JUDGES:

Hon. Joseph J. Vukovich

Hon. Gene Donofrio

Hon. Mary DeGenaro

Dated: March 1, 2013

[Cite as State v. Smith, 2013-Ohio-756.]

VUKOVICH, J.

{¶1} Defendant-appellant Sammie Smith appeals after being convicted of

multiple crimes in the Mahoning County Common Pleas Court. He raises nine

assignments of error, querying: whether the DNA analyst’s supervisor could testify in

place of the analyst; whether a witness was qualified to lay the foundation for

introducing appellant’s time sheets as business records; whether the sentences on

the repeat violent offender specifications were proper; whether the kidnapping

charges should have been merged with the rape charges; whether the court’s

curative instruction mitigated the victim’s disclosure that the suspect was in jail when

the police told her of the DNA match; whether it was improper for the prosecutor to

comment that the defense could have retested the sample; whether we can review

the motion in limine ruling admitting appellant’s prior convictions, even though

appellant never ended up testifying; whether counsel was ineffective with regards to

two failures to object; and whether appellant’s conviction was against the manifest

weight of the evidence.

{¶2} All assignments of error, except the one involving sentencing, are

overruled, and appellant’s convictions are upheld. The additional five-year enhanced

sentences for the repeat violent offender specifications on counts six and seven are

reversed as they are unauthorized where the court did not impose a maximum

sentence on either count. And, the five-year concurrent sentences on these counts

are reversed and remanded for a limited resentencing hearing where the state can

elect which offense it wishes the court to enter the five-year sentence on because

two merged offenses cannot both receive sentences. The sentences on the other

counts are affirmed.

STATEMENT OF THE CASE

{¶3} According to the testimony, a man broke into the victim’s duplex in

Youngstown, Ohio in the early morning hours of October 13, 2003. The victim was

sleeping with her two-year-old son when the intruder shook her awake. (Tr. 471-

472). He pulled a bandana over her eyes that she had been wearing on her hair.

She did not fight or scream so as not to wake her child. (Tr. 477). The intruder

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pulled her out of bed by her arms and walked her down the hallway and into the

dining room. (Tr. 473, 475).

{¶4} At that point, the victim turned the light on and pulled the bandana

down. (Tr. 474). She briefly glimpsed a black male. (Tr. 475). He smelled strongly

of alcohol and a certain type of cigar. (Tr. 477). The intruder replaced the bandana

over her eyes, grabbed her neck, and threatened to kill her. (Tr. 474-475, 477). He

brought her into the living room, took off her clothes, and attempted unsuccessfully to

vaginally rape her. (Tr. 475-476). He then forced her to perform oral sex on him.

(Tr. 476).

{¶5} Thereafter, the intruder brought her back to her bedroom and put her in

the closet while he rummaged through her bedroom drawers and stole her jewelry.

(Tr. 478-479). He also stole money from her purse, which he emptied in her son’s

room. (Tr. 479). While the victim was in the closet, appellant ran a bath.

{¶6} He thereafter retrieved the victim from the closet and brought her into

the hallway where he anally and then vaginally raped her. He used lotion from her

closet and did not use a condom. (Tr. 480-481).

{¶7} Finally, he made her take a bath and wash herself. He watched her for

a short time and then left. (Tr. 482). She estimated that the incident took place over

the course of an hour.

{¶8} After ensuring the intruder was gone, the victim called her husband to

come get their son and then called the police, who arrived with an ambulance that

took her to the hospital. (Tr. 484). The police discovered evidence such as a broken

window pane in a door, broken trim around the door, a bathtub with water and a cloth

in it, a bottle of lotion in the hallway, and the victim’s sweatpants on the floor in the

living room.

{¶9} The victim was examined by an emergency room doctor and nurse,

who were both involved in preparing the rape kit and who testified about the victim’s

statements and condition. The physician disclosed that the victim had tears on both

sides of her vagina and around her rectum. These areas were swollen and tender,

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establishing a recent trauma. (Tr. 324). He described it as the worst trauma to those

areas that he had yet encountered. (Tr. 325).

{¶10} The nurse noted that the victim had additional bruising around her left

nostril. (Tr. 336, 357). She also related that the victim was experiencing pain in her

rectum. (Tr. 337). The nurse opined that the victim seemed to be in need of

emotional support. (Tr. 336-337).

{¶11} The rape kit was sent to BCI. An analyst testified that she opened the

kit to test for the presence of sperm on the swabs. (Tr. 287, 289). She found sperm

on the vaginal and rectal swabs. (Tr. 290). The swabs were then sent to BCI’s

outsourcing provider at the time, Bode Technology. Said company generated a DNA

profile from the sperm found on the vaginal swab and returned it to BCI, who entered

the profile into their database. (Tr. 365, 368). The supervisor of the analyst who

generated the profile presented that profile at trial.

{¶12} It was not until 2008 that a match occurred as appellant’s DNA had

been recently entered in the database. (Tr. 578). Officers showed the victim a

photographic array containing appellant’s picture. She could not positively identify

appellant, but she narrowed the six suspects down to two, one of whom was

appellant. (Tr. 581).

{¶13} Officers then obtained a new sample of DNA from appellant, which they

submitted to BCI. (Tr. 583). A BCI analyst testified that she generated appellant’s

DNA profile from the new sample and compared it the DNA profile of the sperm

generated by Bode from their analysis of the vaginal swab. (Tr. 368). She found to a

reasonable degree of scientific certainty that all core locations on the two profiles

matched. (Tr. 375, 380). She explained that this match results in a conclusion that

the person tested “cannot be excluded as the source,” noting that such matching

between individuals has never been observed except in identical twins. (Tr. 375-376,

378). She further testified that the frequency of this match was one in 15 quadrillion

450 trillion, pointing out that Earth’s population was 6.5 billion. (Tr. 381).

{¶14} As a result of this evidence, appellant was indicted on eight counts:

aggravated burglary; rape (fellatio); rape (vaginal); rape (anal); kidnapping (to

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facilitate a felony); aggravated robbery; robbery (as an alternative to aggravated

robbery); and kidnapping (to engage in sexual activity against the victim’s will). A

repeat violent offender specification was added to each count. A jury found appellant

guilty as charged.

{¶15} The state agreed aggravated robbery and robbery were tried in the

alternative and would merge. In an August 8, 2011 entry, the court sentenced

appellant to ten years on each count except the merged counts on which the court

entered five-year concurrent sentences. The court ran the ten-year sentence on

aggravated burglary, the ten-year sentences on the three rapes, and the five-year

year sentence on the merged offenses consecutively and ran the two kidnapping

sentences concurrently to each other and to the other sentences. This amounted to

an aggregate sentence of 45 years. The court then found that appellant was a

repeat violent offender and imposed an additional five years on each count,

increasing the aggregate sentence by 35 years to a total of 80 years.

{¶16} Appellant filed a timely notice of appeal. Appellant received leave to file

a forty-seven page brief containing nine assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

{¶17} Appellant’s first assignment of error contends:

{¶18} “APPELLANT WAS DENIED DUE PROCESS AND CONFRONTATION

WHEN THE TRIAL COURT PERMITTED WITNESSES TO OFFER EXPERT

TESTIMONY ABOUT DNA TESTS NOT PERFORMED BY THEM IN VIOLATION OF

[THE CONSTITUTION].”

{¶19} In order to conclude that appellant’s DNA matched the sperm found on

the vaginal swab from the rape kit, the BCI analyst, who profiled appellant’s known

sample in 2008, compared that sample to the DNA profile from the rape kit, which

had been generated by Bode Technology and returned to BCI. Appellant argues that

the BCI analyst’s testimony (finding that appellant’s DNA matched the profile of the

sperm from the rape kit) was improperly admitted because that testimony relied on

the DNA profile of the sperm, but the analyst who generated that profile did not

testify.

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{¶20} Instead, the state presented the testimony of Mr. Cariola, Bode’s senior

vice-president of forensic operations. At the time the rape kit was profiled, Mr.

Cariola was the technical leader of Ms. Lawsen, the analyst who worked on that

sperm sample and who no longer worked for Bode. In general, Mr. Cariola oversaw

all technical aspects of the analysts’ work, approved procedures, assured reliability,

reviewed protocols, approved the hiring analysts, conducted DNA analysis, and

reviewed the final product of analysts. (Tr. 411). He presented the DNA profile

generated by Bode. State’s Exhibit 32.

{¶21} Appellant focuses on the fact that Ms. Lawsen separated the sperm

from the nonsperm, quantitated the DNA to see how much was there, amplified the

DNA, and put the DNA into the analyzer to generate the results. (Tr. 431-436). Mr.

Cariola did not participate in or watch these steps. Mr. Cariola did, however, run the

purification step between separation and quantification himself. (Tr. 433). And, he

was not only the technical leader but was also the cosigner of the report. (Tr. 419).

He explained that this meant that he reviewed all of the notes and raw material

generated and came to the same conclusion as the analyst. (Tr. 419-420).

{¶22} Appellant’s argument here is based upon cases out of the United States

Supreme Court regarding what is testimonial evidence and who can introduce lab

results. Melendez–Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 174

L.Ed.2d 314 (2009) (certificate of analysis saying that seized evidence was cocaine

requires live testimony of the analyst who did the analysis); Bullcoming v. New

Mexico, 131 S.Ct. 2705, 2716, 180 L.E.2d 610 (2011) (surrogate testimony of

another analyst is insufficient to introduce blood alcohol content results).

{¶23} However, the Bullcoming Court did observe that the testifying analyst

did not offer an independent opinion on the blood alcohol content results but just

introduced the other’s analyst’s certification. Bullcoming, 131 S.Ct. at 2716. And, as

the state points out, Justice Sotomayor’s concurrence emphasized the limited reach

of the holding by pointing out that they were not facing a case where “the person

testifying is a supervisor, reviewer, or someone else with a personal, albeit limited,

connection to the scientific test at issue.” Id. at 2722 (Sotomayor, J., concurring).

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She noted that the witness played no role in producing the report on blood alcohol

content and did not observe any portion of the non-testifying analyst’s conduct of the

testing. Id. “It would be a different case if, for example, a supervisor who observed

an analyst conducting a test testified about the results or a report about such results.

We need not address what degree of involvement is sufficient because here [the

witness] had no involvement whatsoever in the relevant test and report.” Id.

{¶24} We refrain from extending the United States Supreme Court’s holdings

any further than they expressly reach. The case before us is distinguishable from the

cases discussed above as this was not some random coworker testifying to someone

else’s results. Considering the involvement of Mr. Cariola in the generation of the

DNA profile from the rape kit, this case does not fall under the rubric of the

Bullcoming and Melendez–Diaz cases.

{¶25} That is, Mr. Cariola was more than a mere fellow analyst of Ms.

Lawsen. He was the technical leader who supervised her. He reviewed procedures,

protocols, and work product at Bode. And, he reviewed all of Ms. Lawsen’s notes

and her raw data at the time it was generated. He cosigned her report and testified

that her conclusions were also his conclusions. In fact, he was the actual analyst

who performed the purification step before Ms. Lawsen completed the analysis. And,

he was cross-examined on the procedures used in the lab he oversaw when analysts

identify stutters and “clip” the peaks and all other procedures the defense wished to

criticize. Furthermore, he had his own independent opinion on the results.

{¶26} Consequently, the failure to present the testimony of Ms. Lawsen on

her generation of the DNA profile from the rape kit did not violate appellant’s

Confrontation Clause rights. Thus, we conclude that the BCI agent was permitted to

use the prior DNA profile to conduct her comparison with the sample she profiled.

{¶27} We also note here that appellant failed to object during Mr. Cariola’s

testimony. As appellant raises this failure to object under his ineffective assistance of

counsel argument in assignment of error number eight, we do not rely on waiver here

but rather conclude a lack of deficiency and a lack of prejudice based upon the above

analysis.

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{¶28} In further and independent support of this conclusion, the state urges

that regardless of the validity of presenting a supervisor and reviewer to testify in

place of the analyst who created the profile, there is another reason that the BCI

agent’s comparison testimony was valid. A plurality of the United States Supreme

Court recently ruled on the state’s calling of an expert who testified that a DNA profile

produced by an outside lab matched a profile produced by the state police lab using

a sample of the defendant’s blood. See Williams v. Illinois, 132 S.Ct. 2221, 2227,

183 L.Ed.2d 89 (2012). First, the plurality pointed out that an expert may express an

opinion that is based on facts that the expert is asked to assume to be true, and thus,

concluded that an expert can testify that DNA results match. Id. at 2228.

{¶29} The plurality went on to hold that even if the report produced by the

outside lab is admitted into evidence, there is no Confrontation Clause violation. Id.

The DNA report was found to be very different from the sort of extrajudicial

statements that the Confrontation Clause reaches as it was produced before any

suspect was identified and was not generated for the purpose of obtaining evidence

against that defendant, who was not even under suspicion at the time, but for the

purpose of finding a rapist who was on the loose. Id. The plurality also explained

that the DNA profile was not inherently inculpatory as a DNA profile is evidence that

tends to exculpate all but one person on earth, noting that it is well-known that such

evidence is regularly used to exonerate those wrongfully accused. Id.

{¶30} “If DNA profiles could not be introduced without calling the technicians

who participated in the preparation of the profile, economic pressures would

encourage prosecutors to forgo DNA testing and rely instead on older forms of

evidence, such as eyewitness identification, that are less reliable.” Id., citing Perry v.

New Hampshire, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). The plurality opined that

such a conclusion would not prejudice a defendant “who really wishes to probe the

reliability of the DNA testing done in a particular case because those who participated

in the testing may always be subpoenaed by the defense and questioned at trial.” Id.

{¶31} Although this was a plurality, Justice Thomas concurred in judgment

and wrote separately where he concluded that the DNA lab report was not in the

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class of testimonial evidence covered by the Confrontation Clause as it has no indicia

of solemnity as does an affidavit or certificate of analysis. Id. at 2260-2261 (Thomas,

J., concurring). Thus, a majority of justices on the United States Supreme Court

would instruct this court to allow the DNA profile from the outside lab as evidence

even without the testimony of the analyst who generated the report containing the

profile.

{¶32} Here, the testifying BCI agent personally analyzed the DNA that was

undisputedly that of appellant. She used her expertise to compare that sample to a

prior profile entered into the database by her lab after their contractor generated a

profile from an unidentified rapist’s semen sample. As the United States Supreme

Court has emphasized, the prior profile was generated before any suspect had been

identified. See id. at 2228. It was not generated in order to provide proof against

appellant, who was not even a suspect at the time. See id. In fact, four years

passed before a database returned a match to appellant’s recently entered sample,

at which time yet another sample was obtained from appellant. A DNA profile is not

inherently inculpatory as it regularly exculpates those wrongfully suspected or

convicted. See id. As observed, it is hard to conceive that any purported error in

analyzing an unknown rapist’s semen would have produced a DNA profile that was

identical to appellant’s DNA profile. This coincidence is compounded by the fact that

appellant had lived in the neighborhood, and at the time of the rape his mother lived

in the victim’s neighborhood.

{¶33} For the two independent reasons set forth above, the BCI analyst was

permitted to compare appellant’s DNA to the prior profile previously generated from

the rapist’s semen. Thus, appellant’s arguments concerning the prior DNA profile are

overruled.

{¶34} The other argument presented here is that the BCI analyst should not

have been permitted to testify about the statistical frequency of the DNA profile

occurring in the population because this number was produced by entering the profile

into an FBI computer program containing an FBI-generated population database. (Tr.

381). Appellant filed a motion in limine to preclude the testimony on the population

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frequency estimate and later lodged a timely objection at trial. (Tr. 380). Appellant

believed that a knowledgeable FBI representative would have to testify as to how the

database was established and how the number was derived. In responding below,

the state urged that such evidence was widely accepted.

{¶35} The Ohio Supreme Court has ruled that an expert can testify to the

statistical conclusions about DNA evidence without being an expert in statistical

analysis. State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836. The

Court explained that questions regarding the reliability of statistics on population

frequency go to the weight rather than the admissibility of the evidence. Id. (thus

counsel was not ineffective for failing to object to the analyst’s testimony on

population frequency), citing State v. Pierce, 64 Ohio St.3d 490, 501, 597 N.E.2d 107

(1992). See also State v. Adams, 103 Ohio St.3d 508, 525, 2004-Ohio-5845, 817

N.E.2d 29, ¶ 80-82.

{¶36} Various courts have ruled that an analyst’s testimony on the population

frequency estimate obtained from the FBI database was permissible and the statistic

obtained was not testimonial evidence under Crawford v. Washington, 541 U.S. 36,

124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See State v. Bolton, 12th Dist. No. 96385,

2012-Ohio-169, ¶ 64; State v. Bruce, 5th Dist. No. 2006-CA-45, 2008-Ohio-5709, ¶

62, 69; State v. Powell, 2d Dist. No. 18095 (Dec. 15, 2000); State v. Breeze, 10th

Dist. No. 92AP-258 (Nov. 24, 1992). See also State v. Collins, 6th Dist. No. L-05-

1399, 2007-Ohio-3578, ¶ 17, 21-24 (court can allow expert to testify on statistics

even though they were solely the result of a statistical program supplied by the FBI);

State v. Stokes, 8th Dist. No. 71654 (Dec. 11, 1997); State v. Minor, 47 Ohio App.3d

22, 24, 546 N.E.2d 1343 (10th Dist.1988) (expert can apply facts in evidence to

scientific table).

{¶37} The BCI analyst testified that the chances of another person matching

the DNA profile of the sperm from the vaginal swab were one in 15 quadrillion 450

trillion. (Tr. 381). She had been a forensic analyst for BCI for fourteen years. She

has a bachelor’s degree in biology. She testified in court 85 times in the past. (Tr.

385). She had training with the FBI in Quantico on DNA analysis and interpretation.

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She took several courses on statistics and statistical interpretation. (Tr. 362). She

explained the reason for this statistical training. (Tr. 363). See State v. McKinney,

11th Dist. No. 2007-T-0004, 2008-Ohio-3256, ¶ 123, 134 (finding this same expert

qualified to testify as an expert on population frequency statistics).

{¶38} The analyst also disclosed that she is required by the duties of her job

to generate the population frequency statistic from the FBI program. (Tr. 380). She

answered the questions posed to her by defense counsel regarding the database.

She explained that labs across the country and throughout the world rely on the FBI’s

database to generate their statistics and opined that there would be no sense for

every individual lab to construct its own database and software program. (Tr. 407-

408). She also testified that the use of the FBI’s program to generate statistical

population frequency estimates is widely accepted in the scientific community. (Tr.

408). Accordingly, appellant’s argument on the population frequency testimony is

overruled.

ASSIGNMENT OF ERROR NUMBER TWO

{¶39} Appellant’s second assignment of error states:

{¶40} “THE TRIAL COURT ERRED IN PERMITTING HEARSAY EVIDENCE

OF APPELLANT’S PAYROLL RECORDS IN VIOLATION OF [THE

CONSTITUTION].”

{¶41} After the police were informed about the hit in the DNA database, a

detective spoke to appellant. Appellant admitted that he returned to Youngstown on

occasion to visit his mother but said that he had been living in Indiana at the time of

the rape as he was working there for Project Management Services, a company

based out of Girard, Ohio. (Tr. 582-583). The police then discovered that appellant

previously lived with his mother on the same street where the rape took place. (Tr.

594).

{¶42} The rape took place over the course of an hour at approximately 4:00

a.m. on October 13, 2003. As additional evidence, the police wished to establish that

appellant had not been working in Indiana that morning. The detective thus

contacted appellant’s prior employer and thereafter received appellant’s time sheets

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for the pertinent pay period. (Tr. 584, 588). Appellant unsuccessfully objected to the

detective’s testimony as to whether it appeared from the time sheets that appellant

had been working on October 13, 2003. (Tr. 588).

{¶43} Regardless, this testimony had already come in through the testimony

of the office manager of a drain cleaning company who answered the call from the

detective and who supplied him with the payroll records. She testified that she

worked for the drain cleaning company for three years, that she did not work for

PMS, and that PMS and the drain cleaning company were once owned by her father.

(Tr. 549). She stated that when the detective called, she went upstairs and found the

payroll records from PMS in storage. (Tr. 548).

{¶44} The state presented the time sheets she found, and she explained that

the employees fill them out themselves and turn them in. (Tr. 550); State’s Exhibit

35. When asked if the time sheets were those of the defendant, appellant

unsuccessfully objected without specifying the grounds of the objection. (Tr. 550). A

side bar had been conducted prior to the presentation of the time sheets, but it was

not conducted on the record. (Tr. 549). Through her testimony, it was established

that the time sheet containing appellant’s name included October 13, 2003 and that

the hours for that date had been crossed out, meaning that he did not work that day.

(Tr. 550-551).

{¶45} In viewing that time sheet, it can be seen that October 13, 2003 had

been filled out by hand and that appellant worked 7:00 a.m. until 4:00 p.m. for a total

of 8 hours (similar to some other days). The hours for that day, however, were

crossed out. Similarly, the top of the time sheet which originally stated that he worked

44 hours was decreased to 36 hours, coinciding with the crossing out of October 13,

2003.

{¶46} On cross-examination, the defense pointed out that the witness was

only 20 years old and did not work for PMS in 2003. (Tr. 552). She was asked if she

was the custodian of records for PMS, and she stated that she was not. (Tr. 553).

When asked what she knew about the procedure for filling out time sheets in 2003,

she responded: “It never changed. It’s always been the same, even for my

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company. The same owner did the same thing with all the time sheets.” (Tr. 554).

She expressed her belief that the time sheets were submitted to her aunt, who then

wrote out the payroll checks. (Tr. 554). She explained that the worker has to get the

manager’s signature on the time sheet to get paid, noting the manager’s signature on

the exhibit. (Tr. 555). It was pointed out that she did not know who crossed out

October 13, 2003. (Tr. 555).

{¶47} At this point, the employee noted that she had the document showing

how much appellant had been paid for each time period and how many hours he

worked. (Tr. 556). Defense counsel marked that document as Defense Exhibit 3.

(Tr. 556-557). Defense counsel asked if that document was kept in the ordinary

course of business at PMS, and she responded that it had been. (Tr. 558). Defense

counsel then elicited how many hours appellant had been paid for the two-week

period including October 13, 2003 and asked the employee questions about the

hours worked on particular days of the week. (Tr. 558-559).

{¶48} At the close of all evidence, the state moved to admit the time sheets as

State’s Exhibit 35. Defense counsel asked for a moment to respond. Thereafter,

defense counsel came back on the record and voiced that he had no objection to the

admission of the time sheets. (Tr. 598). In closing, defense counsel urged that

appellant’s work records corroborated that he was living in Indiana. (Tr. 621).

{¶49} On appeal, appellant contends that it was an abuse of discretion for the

court to permit the state to introduce the timesheets in violation of Evid.R. 803(6) and

Evid.R. 901. There are several problems with this argument here.

{¶50} First, there is no indication as to the basis for appellant’s objection at

trial. Error may not be predicated upon a ruling that admits evidence unless a

substantial right was affected and a timely objection or motion to strike appears of

record stating the specific ground of objection, if the specific ground was not

apparent from the context. Evid.R. 103(A)(1).

{¶51} The state already had the witness identify the timesheets that she found

for the detective without objection. It was only when she was asked if they were the

timesheets of Sam Smith that counsel objected. The grounds for the objection were

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not stated. The court may have believed, for instance, that the objection was on

grounds of how it was determined that this timesheet referred to this defendant. It

may not have been clear to the trial court that the objection was based upon whether

the timesheets should be admitted as business records. A side bar had been called

by defense counsel earlier, but we remain unaware of what was discussed at this

unrecorded conference.

{¶52} Even if the objection was sufficient to preserve the issue, the defense,

after careful consideration, invited the court to admit the timesheets into evidence.

Apparently, the defense believed that these timesheets in conjunction with the payroll

record concerning the amount of the check for that time period was evidence that

could work in appellant’s favor. Notably, the defense marked a document from this

same witness as an exhibit. As such, the defense ended up consenting to the

admission of the payroll records and the employee’s status regarding those records.

{¶53} In anticipation of this ruling, appellant’s eighth assignment raises

ineffective assistance of counsel in this regard. We relocate the analysis here.

{¶54} Counsel can be considered to have rendered ineffective assistance if

there was deficient performance in the failure to object to a matter and there was

prejudice, meaning that result of the proceeding would have been different but for

that failure. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373

(1989). Debatable trial tactics very rarely constitute ineffective assistance of counsel.

State v. Clayton, 62 Ohio St.2d 45, 47, 402 N.E.2d 1189 (1980). The reviewing court

presumes that counsel's strategy falls within the wide range of reasonable

assistance. State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987).

{¶55} Deficient performance has not been established here as we do not

second-guess trial strategy. Counsel may have decided that although the hours

worked on October 13, 2003 had been crossed out somewhere along the line, the

document was worth keeping as evidence. That is, the timesheet’s original

statement that appellant worked in Indiana at 7:00 a.m. on the morning of a 4:00 a.m.

one-hour long home invasion in Youngstown, Ohio may be viewed as beneficial to

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the defense. Counsel could have concluded that the timesheet with its alterations

and contradictory arithmetic could create a reasonable doubt in the minds of the

jurors.

{¶56} In any event, appellant’s argument here concerning whether the office

manager was a proper witness to authenticate the business records is without merit.

The decision to admit a business record into evidence rests within the sound

discretion of the trial court and will not be disturbed on appeal absent a clear showing

of an abuse of discretion. Bishop v. Munson Transp. Inc., 109 Ohio App.3d 573, 579,

672 N.E.2d 749 (7th Dist.1996). Authentication deals with identification and is

satisfied by evidence sufficient to support a finding that the matter in question is what

its proponent claims. Evid.R. 901(A). An example of authentication is through

testimony of a witness with knowledge that a matter is what it is claimed to be.

Evid.R. 901(B)(1). A business record is authenticated as provided for in Evid.R.

803(6). See Evid.R. 902(B)(10) (any method provided by rule or statute). The

hearsay exception for business records contained in Evid.R. 803(6) allows the

admission of:

“A memorandum, report, record, or data compilation, in any form,

of acts, events, or conditions, made at or near the time by, or from

information transmitted by, a person with knowledge, if kept in the

course of a regularly conducted business activity, and if it was the

regular practice of that business activity to make the memorandum,

report, record, or data compilation, all as shown by the testimony of the

custodian or other qualified witness or as provided by Rule 901(B)(10),

unless the source of information or the method or circumstances of

preparation indicate lack of trustworthiness.”

Evid.R. 803(6). See also Evid.R. 803(7) (absence of entry in business record).

{¶57} Appellant complains that the office manager for the drain cleaning

company was not the custodian of the records for PMS and had no personal

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knowledge of the records. He notes that this witness assumed that it was the

defendant who filled out the time sheet.

{¶58} We begin by pointing out that presentation of business records through

the testimony of the custodian of the records is not the only option. A witness

sufficiently familiar with the operation of the business can also present the business

records. State v. Davis, 62 Ohio St.3d 326, 342-343 581 N.E.2d 1362 (1991). See

also Evid.R. 803(6) (“or other qualified witness”). The witness must be able to vouch,

from personal knowledge of the record-keeping system, that such records were kept

in the regular course of business. Id. at 342. The witness need not have personal

knowledge of the creation of the particular record in question and need not have

been in the employ of the company at the time the record was made. Id.

{¶59} Here, the witness testified that she had been working for her father’s

company for three years. She was the office manager. Her father previously owned

the company that appellant worked for. When the police called requesting PMS

payroll records, she knew to look upstairs for the old records in boxes for the old

company. She found payroll records for that company for October 13, 2003 for a

person named Sam Smith. Appellant’s own admissions to police establish that he

worked for PMS on October 13, 2003.

{¶60} Time sheets regularly made are maintained by a business. Moreover,

the witness related that her aunt had been in charge of payroll in 2003. She testified

that she had personal knowledge of the procedure for filling out time sheets, insisting

that the procedure never changed and has always been the same at the two

companies that her father owned. (Tr. 554). She explained that the employees

would fill out their own time sheets, which were then reviewed and signed by a

manager before the employee could submit the timesheet to her aunt to get paid.

(Tr. 550, 555). And, the exhibit introduced by the defense confirmed that appellant

had been paid at the end of the week for the amount of hours reported after the

timesheet was changed.

{¶61} In conclusion, it was sufficiently established that the record was

prepared by an employee of the business who had a duty to report the information,

-16-

the person providing the information had personal knowledge of the event reported,

the record was prepared at or near the time of the event, and it was a regular practice

or custom of the business to prepare the type of record. See Evid.R. 803(6). The

witness who assisted in establishing these facts demonstrated that she had personal

knowledge of the record-keeping system and that the records were kept in the

regular course of business. See Davis, 62 Ohio St.3d at 342. It was irrelevant that

she had no personal knowledge of the specific creation of the particular record in

question and that she was not in the employ of the company at the time the record

was made. Id.

{¶62} Under all of the facts and circumstances presented herein, we cannot

say that the trial court clearly abused its discretion in determining that the employee

was a qualified witness under Evid.R. 803(6). See Bishop, 109 Ohio App.3d at 579.

Therefore, this assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER THREE

{¶63} Appellant’s third assignment of error asserts:

{¶64} “THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER

[THE CONSTITUTION] WHEN IT FOUND APPELLANT TO BE A REPEAT VIOLENT

OFFENDER, AND ERRED AS A MATTER OF LAW IN IMPOSING ADDITIONAL

PUNISHMENT ON THE REPEAT VIOLENT OFFENDER SPECIFICATION.”

{¶65} Appellant was indicted on repeat violent offender specifications on each

count. The specifications were left for the trial court to decide after the jury convicted

him on the offenses. Thus, at the sentencing hearing, the state presented a certified

copy showing prior convictions of aggravated robbery, kidnapping, and rape entered

in Mahoning County Common Pleas Court Case Number 86CR151. The court found

that appellant was a repeat violent offender and imposed an additional five-year

sentence on each count. (We note that the court’s entry speaks only of prior

convictions for aggravated robbery and kidnapping even though the prior entry of

conviction also contained a conviction for rape; this may be because the indictment

only mentioned aggravated robbery and kidnapping in the RVO specifications.)

-17-

Appellant raises three arguments here concerning the repeat violent offender

specifications.

{¶66} First, appellant contends that the state’s proof of a prior conviction was

insufficient as the mere production of a certified copy of a judgment entry showing a

prior conviction for a Sam Smith does not establish that the person on trial is the

same person referred to in the prior judgment entry. The state replies that the trial

court was permitted to use the PSI in conjunction with the prior entry to determine

that both referred to the same person, pointing out that the trial court specified that it

considered the presentence investigation report.

{¶67} “Whenever in any case it is necessary to prove a prior conviction, a

certified copy of the entry of judgment in such prior conviction together with evidence

sufficient to identify the defendant named in the entry as the offender in the case at

bar, is sufficient to prove such prior conviction.” R.C. 2945.75(B)(1).

{¶68} As aforementioned, the repeat violent offender issue was resolved at

sentencing. The PSI is part of the sentencing record on appeal. R.C. 2953.08(F)(1).

There is no reason why the court could not use the PSI to find that appellant is the

same person referenced in the certified copy of the 1986 conviction. See State v.

Smith, 136 Ohio App.3d 343, 346, 736 N.E.2d 560 (8th Dist.2000) (where the court

used the PSI to find sufficient evidence of prior convictions). See also State v.

Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147, 915 N.E.2d 292, ¶ 37-40 (allowing the

trial court to look at the judicial record of the prior conviction to determine if the

defendant should receive an enhanced RVO sentence and referring to the use of a

PSI for this purpose).

{¶69} The PSI here contained a photograph of appellant, his date of birth, and

his Social Security number. The PSI disclosed that appellant had previously been

convicted in 86CR151 of kidnapping, rape, and aggravated robbery with a firearm

specification. Thus, the PSI established that the defendant before the court had a

criminal record which included those offenses in the same case number contained

within the certified copy of the prior entry of conviction that the state presented to the

-18-

trial court at the RVO/sentencing hearing. Therefore, the trial court had before it

sufficient evidence of appellant’s identity, and this argument is without merit.

{¶70} Additionally and alternatively, we point out that on January 3, 2011,

appellant filed a motion in limine to preclude testimony about his 1986 convictions if

he chose to testify as they were too old to be probative. The court filed an entry

denying his motion and stating that his prior convictions of kidnapping and

aggravated robbery would be admissible if he testified. Thus, appellant essentially

admitted to the court prior to trial that these prior convictions belonged to him.

{¶71} The next argument appellant makes here is that the court was not

permitted to impose additional five-year concurrent sentences for the repeat violent

offender specifications on counts six and seven, which the court had merged.

Appellant is correct as the additional sentence can only be imposed on counts where

the court imposed the longest term. See R.C. 2929.14(B)(2)(a)(iii); State v. Peterson,

8th Dist. No. 88248, 2007-Ohio-1837, ¶ 59 (sua sponte raising issue and remanding

for correction of sentence).

{¶72} Here, the trial court only imposed five years for aggravated robbery,

which had a maximum sentence of ten years, and the court only imposed five years

for robbery, which had a maximum sentence of eight years. See R.C. 2911.01(A)(3),

(C); R.C. 292911.01(A)(2), (B); R.C. 2929.14(A)(1)-(2). Thus, as the state concedes,

the court was not permitted to impose additional sentences for those offenses. As

such, the court’s repeat violent offender sentence on these counts is reversed and

the matter is remanded to delete the additional sentences for the repeat violent

offender specifications on counts six and seven.

{¶73} On remand, the trial court is also instructed that when it merges counts,

it can only enter a sentence on one of the merged counts. See State v. Gardner, 7th

Dist. No. 10 MA 52, 2011-Ohio-2644, 2011 WL 2175814, ¶ 24, citing State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 17. When the

court merged aggravated robbery and robbery at the state’s request, only one of the

offenses remained for sentencing.

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{¶74} As this court and the Ohio Supreme Court have stated multiple times,

two merged counts cannot both receive sentences, even concurrent sentences. This

is said to constitute plain error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-

1, 922 N.E.2d 923, ¶ 31 (plain error even where it is a jointly recommended

sentence), citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d

845, ¶ 96–102. The remedy is to remand for a limited resentencing hearing so that

the prosecution can select which of the merged offenses it wishes the court to

proceed on for sentencing. See Whitfield, 124 Ohio St.3d 319 at ¶ 21–22 (finding

that appellate court impermissibly intruded on the state's right to elect by ordering

which offense to vacate); Maumee v. Geiger, 45 Ohio St.2d 238, 244, 344 N.E.2d

133 (1976).

{¶75} Appellant’s final argument concerning the remaining sentences on the

repeat violent offender specifications is that the trial court did not make sufficient

findings to support its sentence. The additional prison terms were imposed under

R.C. 2929.14(B)(2)(a), which provides that an additional term can be imposed only if

all five listed criteria are met. The first three are not contested: (i) the offender was

convicted of a repeat violent offender specification; (ii) the offense is a first degree

felony of violence and life is not imposed; and (iii) the longest prison term was

imposed. The controversy here involves the next two criteria:

(iv) The court finds that the prison terms imposed * * * are inadequate to

punish the offender and protect the public from future crime, because

the applicable factors under section 2929.12 of the Revised Code

indicating a greater likelihood of recidivism outweigh the applicable

factors under that section indicating a lesser likelihood of recidivism.

(v) The court finds that the prison terms imposed * * * are demeaning to

the seriousness of the offense, because one or more of the factors

under section 2929.12 of the Revised Code indicating that the

offender's conduct is more serious than conduct normally constituting

the offense are present, and they outweigh the applicable factors under

-20-

that section indicating that the offender's conduct is less serious than

conduct normally constituting the offense.

R.C. 2929.14(B)(2)(a)(iv)-(v).

{¶76} The statute thereafter reiterates that when a court imposes an

additional sentence on a repeat violent offender specification, “the court shall state its

findings explaining the imposed sentence.” R.C. 2929.14(B)(e). Appellant claims

that the trial court violated these provisions by failing to make the required findings.

{¶77} However, subdivisions (iv) and (v), which were previously contained in

(D)(2)(b)(i) and (ii), have been excised and severed from the statute by the Ohio

Supreme Court. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470, ¶ 74-78, 99. The Court concluded that from there on, judicial fact-finding was

not required before imposing the additional penalty for a repeat violent offender

specification. Id. at ¶ 99.

{¶78} In making it clear that a repeat violent offender specification still exists

after Foster, the Court later restated that they eliminated the fact-finding requirements

for repeat violent offender sentencing. State v. Hunter, 123 Ohio St.3d 164, 2009-

Ohio-4147, 915 N.E.2d 292, ¶ 25-27, citing State v. Mathis, 109 Ohio St.3d 54, 846

N.E.2d 1, 2006-Ohio-855. Thus, the trial court need not make findings of fact before

imposing penalty enhancements for repeat violent offenders. Id. at ¶ 26.

{¶79} The remainder of the Hunter holding addressed the defendant’s

argument that the court erred in considering relevant information about his prior

conviction that was in the judicial record from the prior conviction. Id. at ¶ 28-29, 34-

40. It does not provide support for appellant’s argument here as he seems to

suggest. Thus, the court did not err by failing to make the findings in R.C.

2929.14(B)(2)(a)(iv)-(v).

{¶80} As for division (B)(2)(e)’s requirement that the court state its findings

explaining the additional sentence, this provision lacks substance after the required

factual findings were deleted from the statute. See State v. Bruce, 8th Dist. No.

90897, 2009-Ohio-1067, ¶ 29 (holding that findings are not required under division

(B)(2)(e) because Foster eliminated the court’s obligation to make findings or give

-21-

reasons for imposing a sentence under an RVO specification). This conclusion is

supported by precedent holding that “judicial fact-finding is no longer required in

order for a court to * * * impose * * * penalty enhancements for repeat violent

offenders * * *.” Mathis, 109 Ohio St.3d 54 at ¶ 35.

{¶81} Finally, the trial court’s entry stated that appellant was a repeat violent

offender because he was previously convicted of aggravated robbery and kidnapping

in Mahoning County Case Number 86CR151. And, as the state points out, the trial

court stated that it considered the purposes and principles of sentencing under R.C.

2929.11 and balanced the seriousness and recidivism factors under R.C. 2929.12.

(Tr. 14); Aug. 8, 2011 Sentencing Entry. For all of these reasons, appellant’s

argument (that mandatory findings were missing) is overruled. This assignment of

error is sustained in part and overruled in part.

ASSIGNMENT OF ERROR NUMBER FOUR

{¶82} Appellant’s fourth assignment of error contends:

{¶83} “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

REQUEST TO MERGE THE KIDNAPPING COUNTS WITH THE RAPE COUNTS IN

THAT THEY WERE ALLIED OFFENSE OF SIMILAR IMPORT WITH NO

SEPARATE ANIMUS.”

{¶84} Where the same conduct by the 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. R.C. 2941.25(A). 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 defendant may be convicted of all of them. R.C. 2941.25(B).

{¶85} Under the old analysis for evaluating whether offenses were allied

offenses of similar import or offenses of dissimilar import, the court was to compare

the elements of the offenses in the abstract (without considering the defendant's

conduct) to determine whether the elements corresponded to such a degree that the

commission of one offense would result in the commission of the other offense.

-22-

State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 14; State

v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999). If they were of dissimilar

import, sentencing could proceed on both; if they were allied offenses of similar

import, the court proceeded to look at the defendant's conduct to determine whether

they were committed separately or with separate animus. Cabrales, 118 Ohio St.3d

54 at ¶ 14, 31; State v. Jones, 78 Ohio St.3d 12, 14, 676 N.E.2d 80 (1997).

{¶86} Now, however, courts are permitted to consider the defendant's

conduct in determining whether the offenses are of similar import. State v. Johnson,

128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus. All six justices that

sat on Johnson agreed with the following syllabus law: “When determining whether

two offenses are allied offenses of similar import subject to merger under R.C.

2941.25, the conduct of the accused must be considered. (State v. Rance (1999), 85

Ohio St.3d 632, 710 N.E.2d 699, overruled.)” Johnson, 128 Ohio St.3d 153 at

syllabus. Besides this statement, Johnson did not provide us with any new legal

precedent as there was no majority opinion. See State v. Gardner, 7th Dist. No.

10MA52, 2011-Ohio-2644, ¶ 23.

{¶87} Appellant argues that the two kidnapping counts should have been

merged with the rape counts. The elements of rape are purposefully compelling

sexual conduct by force or threat of force. R.C. 2907.02(A)(2). The elements of one

of the kidnapping counts are using force, threat, or deception to remove another from

the place where she is found or to restrain the liberty of another for the purpose of

committing a felony or flight thereafter. R.C. 2905.01(A)(2). The elements of the

other kidnapping count are the same except this count involves a purpose to engage

in sexual activity against the victim’s will. R.C. 2905.01(A)(4).

{¶88} Regarding the first step of the merger analysis, appellant urges that a

forcible rape always entails a kidnapping, which the state does not contest. See

State v. Powell, 49 Ohio St.3d 255, 262, 552 N.E.2d 191 (1990) (implicit in every

forcible rape is a kidnapping; such offenses are allied offenses of similar import);

Gardner, 7th Dist. No. 10MA52 at ¶ 30. Concerning the second step, appellant urges

that movement from one room to another is not sufficient to constitute a separate act

-23-

of asportation in order to prove a separate animus for the kidnappings. Thus, we

must determine whether the kidnappings were committed separately or with a

separate animus from the rapes. As Johnson changed only the first step, the prior

case law dealing with separate animus for kidnapping is still relevant. Id.

{¶89} Animus is defined as purpose or immediate motive. State v. Logan, 60

Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979). When a kidnapping is committed

during another crime, there exists no separate animus where the restraint or

movement of the victim is merely incidental to the underlying crime. State v. Fears,

86 Ohio St.3d 329, 344, 715 N.E.2d 136 (1999), citing Logan, 60 Ohio St.2d 126.

The kidnapping must have a significance independent of the rape. State v. Craig,

110 Ohio St.3d 306, 2006–Ohio–4571 853 N.E.2d 621, ¶ 117. “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. Moreover, where the restraint was prolonged, the confinement was

secretive, or the movement was substantial, a separate animus exists. State v.

Lynch, 98 Ohio St.3d 514, 2003–Ohio–2284, 787 N.E.2d 1185, ¶ 135; Fears, 86 Ohio

St.3d at 344.

{¶90} The Supreme Court has used two polar extremes to illustrate these

concepts. Where, for instance, the defendant’s immediate motive was to engage in

sexual intercourse and a “standstill” rape is committed, he may be convicted of either

rape or kidnapping, but not both. Logan, 60 Ohio St.2d at 132. To the contrary, a

defendant who restrains his rape victim for days prior to perpetrating the rape or who

transports her across the state while intermittently raping her may have a separate

animus as to kidnapping and rape allowing convictions on multiple counts. Id.

{¶91} In Logan, the Court found no separate animus for kidnapping where the

defendant forced a victim into an alley and down a flight of stairs before raping her.

Id. at 132. The Court said the movement had no significance except for facilitating

the offense of rape and determined that it did not present a substantial increase in

harm above that presented by the rape itself. Id. at 135.

-24-

{¶92} In Adams, the Court found no evidence of separate animus for

kidnapping where the victim was not moved from her bedroom or restrained in any

way other than what was necessary for the rape. State v. Adams, 103 Ohio St.3d

508, 2004-Ohio-5845, ¶ 93. However, the victim was killed in Adams, and thus, there

was no testimony as to the defendant’s conduct.

{¶93} In Rogers, the Court found a separate animus for kidnapping where the

defendant moved the victim from an outside stairway into his apartment and then to

his bedroom. State v. Rogers, 17 Ohio St.3d 174, 181–182, 478 N.E.2d 984 (1985).

{¶94} Here, it can reasonably be found that appellant’s conduct showed that

he acted with a separate animus for the rapes than he possessed for the

kidnappings. As for the kidnapping with purpose to engage in sexual activity with the

victim against her will, the trial court rationally determined that this case does not fall

at the merger end of the spectrum of rape cases. The defendant broke into the

victim’s house in the middle of the night and shook her awake. He covered her face

with a bandana. He moved her from her bed, out of her bedroom, through the

hallway, and into the dining room. He then grabbed her neck and threatened her life.

{¶95} Next, he moved her into the living room. He forced her onto the sofa

and removed her clothing. He tried to perform vaginal sex and then forced her to

perform oral sex on him. After bringing her back through the house to her bedroom

and putting her in the closet in order to search for valuables, he then removed her

from the closet and brought her into the hallway. Her got lotion from her closet. At

this point, he vaginally and then anally raped her, thus intermittently raping her over

the course of the encounter. Then, he moved her into the bathroom where he forced

her to take a bath.

{¶96} All of this occurred while the victim’s two-year-old child was sleeping in

her bed (which, as he knew, acted as a restraint in itself). Thus, the restraint and

removal could be seen as secretive as he acted against her while her child was

sleeping thus ensuring her compliance without noise. Other signs of secret

confinement, were his acts of covering her face and entering at 4:00 a.m.

-25-

{¶97} Moreover, it is notable that he spent some time voicing absurd

statements to the victim as if to throw the police off his trail. For instance, he said his

name was Mike. In addition, because he previously lived on the victim’s street with

his mother, he acted as though he did not know what street he was on and claimed

that he meant to break into a house on the next street over (so it looked like he was

unfamiliar with the area). He also told the victim that her child’s father sent him. He

then apologized and said that maybe he could be her boyfriend. These statements

help establish that the restraint was longer than necessary to perform the rapes. The

restraint was also shown to be prolonged as the victim estimated that appellant held

her captive for an hour.

{¶98} Regarding the kidnapping with purpose to commit a felony or flight

thereafter, appellant put the victim in a closet while he ransacked her apartment and

stole money and jewelry. This was not merely incidental to a rape but was restraint

with purpose to commit the felony of robbery. It was also for the purpose of

committing another rape offense later by making sure she was confined where she

could not see him while he emptied her drawers and purse.

{¶99} Furthermore, at the end of the invasion, appellant brought the victim

into the bathroom, forced her to get in the bath that he had drawn, and then made

her wash his evidence off of her body. This was not part of the rape. It was done to

erase evidence and to keep her occupied so she would be delayed in calling the

police. This was removal and restraint performed after the rape for the purpose of

fleeing after a felony. Under all of the facts and circumstances here, we conclude

that the trial court did not err in failing to merge the kidnappings with the rapes.

ASSIGNMENT OF ERROR NUMBER FIVE

{¶100} Appellant’s fifth assignment of error argues:

{¶101} “APPELLANT WAS DENIED DUE PROCESS WHEN EVIDENCE OF

APPELLANT’S INCARCERATION IN INDIANA WAS INTRODUCED, THUS

ALLOWING APPELLANT EFFECTIVELY TO BE IMPEACHED WITH PRIOR

CONVICTIONS WITHOUT TAKING THE STAND, AND PERMITTING THE JURORS

TO CONVICT APPELLANT ON LESS THAN THE FULL COMPLEMENT OF

-26-

EVIDENCE REQUIRED FOR PROOF BEYOND A REASONABLE DOUBT UNDER

[THE CONSTITUTION].”

{¶102} Appellant focuses on three remarks here. In opening statements, the

prosecutor stated that there were no suspects until a DNA database turned up a

profile in 2008, at which time the police went to Indiana to get DNA from appellant to

confirm that he was a match. (Tr. 275). This is a statement about what the state’s

evidence would show at trial. It mentions nothing about jail. The reference to

Indiana was made because that was where appellant lived in 2008. Thus,

appellant’s argument concerning this statement in opening has no merit.

{¶103} Appellant does not specifically argue this, but it seems he may be

suggesting that the prosecutor’s statement allowed the jury to wonder why

appellant’s DNA was in a database. However, the mere fact that a juror may deduce

that the defendant had his DNA put into the database after a conviction, does not

preclude the mention of the fact that an unknown suspect’s DNA from a rape kit hit

on a appellant’s DNA profile years later initiating the collection of a fresh sample from

appellant. See State v. Garrett, 1st Dist. No. C-090592, 2010-Ohio-5431, ¶ 26

(prosecutor can elicit that police received a hit on the CODIS database, noting that

prosecutor did not suggest that the database contained DNA from convicts); State v.

Townsend, 8th Dist. No. 87521, 2006-Ohio-5457, ¶ 64 (finding that reference to the

CODIS database is permissible).

{¶104} In any event, appellant is using this statement only in conjunction with

a portion of a police officer’s testimony and a portion of the victim’s testimony. After

describing the evidence he collected in 2003, the police officer was asked what

evidence he collected in 2008. The officer replied, “Two oral Integri swabs from

Sammie Smith at the Putnam - -“. As the court sustained the defense’s objection, the

officer never finished his thought. The state then asked if that was in Indiana. (Tr.

539).

{¶105} It seems the officer was going to say “at the Putnamville County Jail.”

However, the defense’s objection stopped the testimony before any such indication

of incarceration could be made to the jury. Appellant’s own defense claim was that

-27-

he was in Indiana at the time of the offense. And, the jury heard testimony that

appellant lived in Putnamville as a matter of background as this is where the police

traveled when they interviewed appellant in 2008 and took his DNA sample. (Tr.

579). As such, the officer’s uncompleted sentence referring to a town in Indiana was

not prejudicial.

{¶106} Appellant’s main argument here deals with a portion of the victim’s

testimony and whether a curative instruction eliminated any prejudice caused by that

testimony. The state asked the victim what happened when the detectives contacted

her in 2008, and the victim responded, “They said that he was in jail in Indiana and

they got a DNA match and they came --“ (Tr. 497). The defense objected and asked

that the statement be stricken and the jury admonished. The court sustained the

objection, informed the jury that the victim was not permitted to make that statement,

and instructed the jury to disregard the statement. (Tr. 498).

{¶107} Appellant urges that the victim’s disclosure tainted the jury because

they would conclude that if he was in jail in 2008, he must be guilty of this crime

because he is a criminal. He posits that the presumption of innocence was diluted by

this revelation. He believes that the disclosure that he had been in jail was so

inflammatory that the curative instruction was futile, citing State v. Breedlove, 26 Ohio

St.3d 178, 271 N.E.2d 238 (1971). The state responds that the isolated comment

was not overly prejudicial and that the jury is presumed to follow the court’s curative

instruction.

{¶108} In Breedlove, a witness testified that she picked the defendant out from

photographs of “guys who had committed crimes.” Id. at 180. The officer testified

that he showed the witness police photographs of “possible suspects in armed

robberies and burglaries.” Id. The trial struck the quoted phrase and instructed the

jury to disregard it. Another officer then testified that the photographs were

generated from people who had outstanding warrants. Id. The photographs, which

were obviously mug shots and which were labeled with police identifiers, were

admitted into evidence.

-28-

{¶109} The Supreme Court stated that the police mug shot photographs with

police identification numerals thereon, particularly when coupled with the above

testimony, inappropriately suggested to the jury that appellant had prior trouble with

the law. Id. at 183. The Court concluded that the curative instruction was not

sufficient to overcome the substantial risk that, despite such instruction, the jury

would look to the police photographs in determining the defendant's guilt of the

offense at trial. Id. at 184. The Supreme Court reversed and remanded for a new

trial.

{¶110} However, in a later case, a fellow inmate testified against the

defendant, who was on trial for the aggravated murder of a correctional officer, and

revealed that the defendant was in prison for murder. State v. Zuern, 32 Ohio St.3d

56, 59 512 N.E.2d 585 (1987). The defense objected, and the court instructed the

jury that the remark was to be excluded from their consideration. Id.

{¶111} The Supreme Court noted that the state did not elicit the remark and

that the witness was not connected with law enforcement. Id. The Court held that

reversal is rarely required based on a presumption that a stricken revelation created

bias as the defendant must demonstrate that the added information had a “probable

shocking impact” on the jurors. Id. at 60 (finding little impact where the defendant

was essentially only contesting whether the murder was aggravated or not).

{¶112} The Court then went through the voir dire answers where the jurors

swore that they would judge the case on the evidence presented to them and would

follow the trial court’s instructions. Id. The Court noted that many trials occur in

communities where the jurors are aware of some facts of the case or the defendant’s

background and that those jurors are not precluded from serving based on this

knowledge if they follow their oaths. Id. The Court then alternatively ruled that any

error was harmless because of the overwhelming evidence against the defendant.

Id.

{¶113} Here, the answer was not provided by law enforcement but by the

victim. And, the state did not attempt to elicit the victim’s answer about appellant

being in jail. (Tr. 497). Rather, the state was anticipating that she would answer the

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question about what happened in 2008 by explaining that the detective showed her a

photographic line-up. (Tr. 498).

{¶114} Furthermore, the fact that a person was in “jail” five years after the

offense is less prejudicial than a revelation that a person was in prison for murder at

the time of the offense. The mention of jail under all of the facts and circumstances

here does not appear to have a “probable shocking impact” on the jurors, who swore

to uphold the law and follow the court’s instructions. As stated previously, the fact

that there was a DNA hit in 2008 was admissible even if it may have suggested to

some jurors that appellant was in jail or prison.

{¶115} Plus, the court specifically instructed the jury to disregard the victim’s

statement and had already instructed them that if the court grants a motion to strike

an answer, the jury must completely disregard it and not consider it for any purpose.

(Tr. 265, 498). A jury is presumed to follow a trial court’s instructions, and a

defendant should object further if he is not satisfied with the court’s curative

instruction. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 39.

A jury is also presumed to follow their oath and to be capable of separating the

impermissible considerations from the permissible. Zuern, 32 Ohio St.3d at 60.

{¶116} Finally, there was overwhelming proof of appellant’s guilt as his DNA

matched the DNA found in the sperm sample from the victim’s rape kit. In

conclusion, there is no right to an error-free or perfect trial. See id. Although it would

have been preferable if the victim had not mentioned that appellant was in jail at the

time of the DNA match, this information did not constitute reversible prejudice under

the totality of the circumstances. This assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER SIX

{¶117} Appellant’s sixth assignment of error contends:

{¶118} “APPELLANT WAS DENIED DUE PROCESS OF LAW AND A FAIR

TRIAL BY REASON OF IMPROPER PROSECUTORIAL ARGUMENT.”

{¶119} In closing argument, the state spoke about the core locations that

matched in the DNA profiles and then stated that BCI “could have retested that, but

so could the defendant.” Defense counsel objected. The trial court overruled the

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objection but instructed the jury that this was closing argument not evidence. (Tr.

627). Appellant now argues that the prosecutor’s statement improperly shifted the

burden to the defense. Appellant also states that the sample was lost so they could

not retest it, making the state’s closing argument even more prejudicial.

{¶120} Initially, we note that there is no evidence that the sample was lost as

appellant claims on appeal. Appellant cites nothing in support of his claim on appeal

that the sperm sample was lost. From our review, all we see is that the BCI analyst

did not know she would be asked where the sample was at the moment, so she had

not checked to ascertain its location before trial. Specifically, the BCI analyst testified

that there is always part of the sample available later and that they are required to

maintain half of it. (Tr. 383-384). She was asked if she knows where the sample is,

and she responded that they recently starting returning evidence to the proper police

department for storage so she was not sure if this particular case was still in her

laboratory or had been returned. (Tr. 382-383).

{¶121} Regarding the prosecutor’s comment itself, as the state points out, the

comment that the defense did not retest the DNA occurred in the state’s rebuttal.

The defense had already opened the door to the state’s comment in their closing

argument by stating twice that the BCI chose not to retest the samples. (Tr. 615).

Thus, the defense cannot now complain about a comment on a lack of retesting

where they raised the failure to retest first. State v. Peeples, 7th Dist. No. 07MA212,

2009-Ohio-1198, ¶ 87 (defense counsel’s statement that the prosecution failed to

investigate the case and that telephone records should have been obtained opened

the door to the prosecutor saying that the defense could have brought in phone

records).

{¶122} In any case, the state can comment on the defense’s failure to offer

evidence in support of its case. State v. Hale, 119 Ohio St.3d 118, 147, 2008-Ohio-

3426, 892 N.E.2d 864. Such comments do not implicitly shift the burden of proof to

the defense. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d

315, ¶ 293 (where prosecutor asked, “Why didn't [the defense] present any

witnesses?”), citing State v. Collins, 89 Ohio St.3d 524, 527-528, 733 N.E.2d 1118

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(2000). See also Peeples, 7th Dist. No. 07MA212 at ¶ 88. For all of these reasons,

this assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER SEVEN

{¶123} Appellant’s seventh assignment of error alleges:

{¶124} “THE TRIAL COURT’S RULING PERMITTING APPELLANT TO BE

IMPEACHED WITH PRIOR CONVICTIONS WAS AN ABUSE OF DISCRETION

AND DENIED APPELLANT DUE PROCESS AND THE RIGHT TO DEFEND

HIMSELF GUARANTEED BY [THE CONSTITUTION].”

{¶125} Evidence of a testifying defendant’s prior conviction is generally not

admissible if a period of more than ten years has elapsed since the date of the

conviction or of the release from parole imposed for that conviction, whichever is the

later, unless the court determines, in the interests of justice, that the probative value

of the conviction supported by specific facts and circumstances substantially

outweighs its prejudicial effect. Evid.R. 609(B). Pursuant to this rule, appellant filed

a motion in limine prior to trial asking the trial court to prohibit the state from

impeaching him with evidence of his 1986 convictions if he decided to testify. He

noted that he had been released from parole in May of 1998 and thus more than ten

years had elapsed since his release from parole. The state urged that the convictions

should be admitted as impeachment evidence if appellant chose to testify.

{¶126} The trial court overruled appellant’s motion in a judgment entry, finding

that the probative value of the prior convictions outweighs the danger of unfair

prejudice. The court considered the nature of the crime, the age of the past

conviction, the similarity between the offenses, the importance of the defendant’s

testimony, and the centrality of the credibility issue. The court also noted that it could

not foresee the nature of appellant’s testimony or his credibility on the stand. The

court opined that the prior conviction involved a crime of dishonesty and that the

charges then and now are similar.

{¶127} Thereafter, appellant did not testify at trial. Thus, the state did not

present his prior convictions to impeach him.

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{¶128} On appeal, appellant generally acknowledges that a motion in limine is

a preliminary ruling which must be renewed at trial or the argument made therein is

waived for purposes of appeal. See, e.g., State v. Hill, 75 Ohio St.3d 195, 202-203,

661 N.E.2d 1068 (1996) (the denial of a motion in limine does not preserve a claimed

error for review in the absence of the defendant making a contemporaneous

objection to the actual admission of the evidence at trial); State v. Grubb, 28 Ohio

St.3d 199, 201-202, 503 N.E.2d 142 (1986) (a decision on a motion in limine is a

tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory

treatment of an evidentiary issue and is not a final determination as the trial court can

change its mind at trial where the issue is presented in testimonial context).

{¶129} Appellant also specifically recognizes that prevailing law requires the

defendant to testify in order to preserve a claim that the court improperly ruled that

the state could present evidence impeaching the defendant’s testimony. Appellant’s

argument here is that the prevailing law is “absurd,” “unsound,” and “nonsense”

because his decision whether to testify hinged on the court’s ruling on the motion in

limine. The state agrees with appellant’s recitation of the law and urges us to apply

that law.

{¶130} The United States Supreme Court has held that a trial court's ruling on

a motion in limine (permitting impeachment of a defendant by a prior conviction) is

preserved and available for review only if the defendant testifies at trial. Luce v.

United States, 469 U.S. 38, 43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Any harm

flowing from the trial court's ruling on the motion in limine was found to be

speculative, subject to change at trial, and unreviewable outside of its factual context.

Id. at 41-42. The Court noted that requiring the defendant to testify despite an

adverse decision on a motion in limine discourages defendants from making such

motions solely to “plant” reversible error. Id. See also Ohler v. U.S., 529 U.S. 753,

759-560, 120 S.Ct. 1851, 146 L.Ed.2d 826 (defendant whose motion in limine is

denied and who then introduces own prior convictions on direct examination in

attempt to lessen their effect, waives right to challenge trial court’s ruling on motion in

limine), citing Luce, 469 U.S. 38.

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{¶131} The Ohio Supreme Court requires the contents of a motion in limine to

be raised at trial in context in order for there to exist a trial court order subject to

appeal. See, e.g., Hill, 75 Ohio St.3d at 202-203. Thus, a defendant is required to

testify if he wishes to protest a court’s preliminary ruling admitting prior convictions as

impeachment evidence. See, e.g., State v. Woods, 8th Dist. No. 79674 (Feb. 28,

2002); State v. Hanks, 10th Dist. No. 99AP-1289 (Oct. 31, 2000); State v. Costa, 2d

Dist. No. 98CA32 (Dec. 31, 1998); State v. Elliott, 4th Dist. No. 94CA836 (Feb. 27,

1995); State v. Brown, 9th Dist. No. 2091 (Sep. 16, 1992); State v. Byrd, 10th Dist.

No. 81AP-384 (Dec. 10, 1981). See also Jackson v. St. Elizabeth’s Med. Ctr., 7th

Dist. No. 97CA117 (Sep. 29, 1999) (once motion in limine is denied and prior

conviction is ruled admissible, movant has strategic decision to make regarding

whether to testify and admit their own prior conviction on direct examination, in which

case they waive the ability to appeal the ruling, or wait and see if the other party will

admit the prior conviction on cross-examination, in which case the ruling can be

appealed later).

{¶132} As aforementioned, appellant admits that the state of the law in Ohio is

not in his favor. There is no reason for this court to deviate from this position or to

adopt a position that the United States Supreme Court’s rationale in Luce is

“nonsense” as appellant asks. Therefore, this assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER EIGHT

{¶133} Appellant’s eighth assignment of error alleges:

{¶134} “APPELLANT’S CONVICTIONS AND SENTENCES ARE IN

VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS BECAUSE

APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.”

{¶135} Appellant sets forth two claims of ineffective assistance of counsel

here, which were relocated to and disposed of by our analysis in assignments of error

numbers one and two. Thus, we only briefly review the issues here as a refresher.

{¶136} First, defense counsel failed to object to the testimony of the Bode

analyst introducing the DNA profile from the rape kit. Appellant states that if we find

that this waived his ability to protest when the BCI analyst testified that she used

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these rape kit results as a comparison for her analysis of appellant’s sample, then

counsel’s failure to object during the Bode analyst’s testimony constituted deficient

performance which prejudiced his defense, since DNA was the pivotal evidence.

Since it was concluded in assignment of error number one that the testimony from

the Bode analyst was admissible and that the BCI analyst can make her comparisons

in any event, this argument was found to be without merit.

{¶137} Second, appellant states that if we overrule his arguments regarding

the timesheets only because he failed to object when the state introduced the

evidence at the end of the case, then counsel rendered deficient performance that

prejudiced his defense. As set forth in the second assignment of error, counsel took

a moment off the record to consider whether he wished to object to the admission of

the records and then came back and consented to their admission. This was a

studied decision. In any event, assignment of error number two concludes that the

witness was sufficiently qualified to introduce the payroll records. In accordance, this

assignment of error is overruled.

ASSIGNMENT OF ERROR NUMBER NINE

{¶138} Appellant’s ninth assignment of error provides:

{¶139} “THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER

THE FOURTEENTH AMENDMENT IN THAT HIS CONVICTION WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE AND THE JURY’S VERDICT WAS

INCONSISTENT WITH THE EVIDENCE AND TESTIMONY PROVIDED.”

{¶140} Weight of the evidence deals with the inclination of the greater amount

of credible evidence to support one side of the issue over the other. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In reviewing a manifest

weight of the evidence argument, the reviewing court examines 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 trier of

fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. Id.

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{¶141} A reversal on weight of the evidence is ordered only in exceptional

circumstances. Id. In fact, where a criminal case has been tried by a jury, only a

unanimous appellate court can reverse on the ground that the verdict was against the

manifest weight of the evidence. Id. at 389, citing Section 3(B)(3), Article IV of the

Ohio Constitution. The power of the court of appeals is limited in order to preserve

the jury's role with respect to issues surrounding the credibility of witnesses. Id.

{¶142} In conducting our review, we proceed under the theory that when there

are two fairly reasonable views of the evidence or two conflicting versions of events,

neither of which is unbelievable, it is not our province to choose which one should be

believed. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

Rather, we defer to the jury who is best able to weigh the evidence and judge the

credibility of witnesses by viewing the demeanor, voice inflections, eye movements,

and gestures of the witnesses testifying before it. See Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E. 1273 (1994); State v. DeHass, 10 Ohio

St.2d 230, 231, 227 N.E.2d 1212 (1967).

{¶143} Appellant’s argument here focuses on his identity as the perpetrator of

the offenses. Appellant states that there was no incriminating fingerprint evidence,

the eyewitness could not make a positive identification of appellant, and the police

did not provide voice exemplars to the victim. Appellant notes that the intruder

identified himself as Mike and said that he was on the wrong street. Appellant

believes the manner of entry was suspect and points to the intruder’s claim that the

child’s father was behind the incident. Finally, appellant states that DNA was the

pivotal evidence in the case and complains that the results were questionable as the

analyst has discretion in clipping peaks when developing the DNA profile.

{¶144} None of this tips the scale so heavily in favor of appellant that this

court would act to reverse the jury’s conclusion that appellant was the perpetrator. It

is not rare that the suspect’s fingerprints are not discovered at a crime scene or are

lifted but do not contain sufficient ridge detail for comparison. (Tr. 586-587). The

eyewitness could not make a positive identification because she had a bandana over

her face during all but a moment of the attack which happened five years prior.

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Providing the victim with voice exemplars may or may not have been a good idea. In

any event, their absence does not discredit the state’s case.

{¶145} As for the weight to be given to the strange statements made by the

rapist, there is absolutely no reason to believe that the rapist gave the victim his real

name or that any of his statements were true. In fact, the rapist’s statement that he

was on the wrong street works against appellant because a reasonable juror could

find that a neighbor may make such a statement to draw attention away from locals,

and appellant previously lived on that street with his mother whom he often visited

after moving to Indiana.

{¶146} The manner of entry was not suspect merely because glass in the

pane was leaning toward the outside. The victim testified that the key was in the lock

on the inside of the door when she went to bed and was on the outside of the door

after the incident. Thus, it can reasonably be inferred that the intruder broke the

glass toward the inside, took the key out of the lock, and then pulled the key (and his

hand) back through the glass causing the remaining shards to move toward the

outside, the direction his hand moved last.

{¶147} The jury heard the testimony concerning the DNA evidence from the

rape kit. The experienced BCI analyst, who generated the profile of appellant’s 2008

sample, testified to a reasonable degree of scientific certainty that appellant could not

be excluded as the source of the sperm from the rape kit. (Tr. 378, 380). Defense

counsel attempted to make an issue out of the clipping of peaks by the Bode analyst,

but this was shown to be a standard procedure and was not shown to affect the

typing of the core locations. Plus, the analyst’s profile was repeated by another

analyst who generated the same profile from the rape kit and was reviewed by her

supervisor who assisted in some of the analysis.

{¶148} Also notable is the fact that the DNA at issue was from sperm rather

than blood or saliva. Thus, there could have been no mix-ups with the female

victim’s DNA. Moreover, appellant was not a suspect until years after the DNA profile

of the sperm sample was generated. That an analyst in Virginia would make a

mistake resulting in the analyzer generating the DNA profile of appellant (someone

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who happened to have previously lived on the same street as the victim) is a theory

that a rational juror can assign little credit.

{¶149} For these reasons, the jury did not clearly lose its way and create a

manifest miscarriage of justice as appellant contends. This assignment of error is

overruled.

CONCLUSION

{¶150} For the foregoing reasons, appellant’s convictions are upheld. The

additional five-year enhanced sentences for the repeat violent specifications on

counts six and seven are reversed as they are unauthorized where the trial court did

not impose a maximum sentence on either count. And, the five-year concurrent

sentences on these merged counts are reversed and remanded for a limited

resentencing hearing where the state can elect which offense it wishes the court to

enter the five-year sentence on because two merged offenses cannot both receive

sentences. The sentences on the other counts are upheld.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.